比較法と比較行政法の関係--方法論〔英文〕
著者
高木 武
著者別名
Takeshi Takagi
雑誌名
東洋法学
巻
35
号
1
ページ
109-103
発行年
1991-08
URL
http://id.nii.ac.jp/1060/00003524/
Creative Commons : 表示 - 非営利 - 改変禁止Relation of Comp aratj:'ve Law and
COmparat 'Ve Ad IniniStrati:'ve LaW
method
-Dr. Prof. T. Takagi
The content of "comparative law"( l) won't work on "comparative
administrative(2) Iaw", if it is a outline or introduction of "comparative law", because the former ls writend by an author who has a general law in his mind, but the latter author keeps an administrative law in his mind and writes the latter, or a content of "comparative civil laW' won't be valid for the latter and others comparative laws; comparative penal law, comparative constitution law, coinparative public law, because each law has a characteristic or special nature, but the content of comparative civil law(3) plays often a leading role in others comparative civil laws; comparative commercial law etc. or a applied comparative law(4), because the civil law is accompanied by many other civil laws and is a fundation or element of each other civil laws.
A relation between outline or introduction of comparative law, or comparative civil law and other positive comparative law can be made
clear, if the former is a fundation or element of the latter and so I will try
to throw light on the relation between the former and the latter, comparative administrative law with a method.
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A method in the former
o
fLThe method is controversial as a problem, there is a great deal of
argument over it and the argument is separated a method of
comparison(5) and method of comparative law, but the former is a part of latter(6), because the forrner has not a comparison of law, but only a "comparison" and that raises an issue; comparist has alrnost not his method in his writing(7), hasing a conce tion which ls not a science ofP
law(8), but a method of studying of law(9 . A comparison ls indisensablefor the comparative law and can't be called the comparative law
(io)
without the comparison of law, though a foreign law studying is often called the "comparative laW', but its studying is prerequisite to study comparative law, because it has not a comparion in general, but it can be called "comparative law", if it includes the comparison of law and the
comparison can be divided a vertical comparison and horizontal
comparison, the former means a historical zone, and, at the same time, foreign space too, but the form is not called specially "comparison( 1 1)" in
general and the latter means a comparison of forei n law and its fact or its relation of law which are almost at present( ), but the historical comparison has its fact or its relation too.
The great master mentions a law system as comparative law object; Dr. Prof. Lambert argues that it is not onlythe rome law system, but also the anglo-saxon law system after the world war I(13). Many comparists surprise at his mention, because they irnagine a comparison in the same law system and don't have the slightest idea too. But the nations are thrown into a selfishness after the war and so the study of comparative
law becomes hanging by a hair as the world war 11 comes nearer, because soon after the end of world war I, it is prosperous, being
supported by the peace, but the nation does not need it, the world war II put it behind the peace and it becomes popular among law circle as the peace returns to the world and he getting smaller and smaller and, at the sam tirne, many socialist nations are established, they make many
socialism law and so the comparison of law and the study of
comparative law are possible in same law system (socialism law
system), because only one law can't compare, a comparison needs more than one. After world war I Russia builds only a communist nation and establishes a socialism law which is not purely communism, but makes a compromise with the bourgeois law which includes the tzar law, that is a possible comparison of law, but the Russia law can't become a object of comparative law(14), because there is only his law on those days, but it can be a object of foreign law, really there is a little student who studies it, because the nations are selfrsh and aim at a self-sufficiency and the others peoples don't trust a communism and Russia, and he and his law
are isolated from other nations, but Russia becomes member of the
Allied Powers in the world war 11 and fights bravely against Japan and
(}ermany, and becomes winner with the other ALlied Powers, but he
can't seem to manage his nation or people; he brings a cold war between him and U.S.A., the U.K. etc., and he is opposed to capitalism nations
which include Japan too, and he makes the east european countries
establish a communist nation, he exploits them and in his country, he
neglects his people livinghood and is absorbed in an expansion of
armament, others communlst nations do so too, and Russia carries out a secor d movement of codifying law and they establish a socialism law, though an order has a priority over the law in all matter in them, the former is unreasonable and the latter is logical and Berlin's wall is
dismantled, the Perestroika is put up and they aim at further
improvement of their people's standard of living, and at the law circle,
(15)
the scholars in law admit a worth of comparative law and mention it and so the socialism countries have the object of comparative law at
home and abroad.
There are many other laws and law systems which are composed of
them in the world now, the lslamic law system ls an instance of the latter
O
l¥O
t
which is famous, the both wlll become its object too, because a man
ready to do anything satisfies his desires, though he has moraly a
restriction, and needs something to be a material in the first tirne and will change from that to a mentalism in the course of time, that trend expands from domestic to foreign and that originates in peace.
The Japanese public law models itself upon the french administrative law in the first time and he receives a german administrative law as well as other law domains and he has a period which is called "allmight of german law"; a student becomes all-round law palyer, if he studies only
the german law, a judge reads, studies a german law book or checks german judicial precent and delivers his judgement, if he takes a
difijlcult problem in his case. And the Japanese people adds the anglo
saxon administrative law to the german administrative law; the
administrative committee, the mandnus proceeding, the administrative procedure etc. are an anglo-saxon style and originates from the former, thus there is a vhat law or law system does a matter or article belong to?" in each other administrative law too(16)
Gutteridge shows a source of comparative law in his book(17) a theory is one of them, but it is not worth mentioning as its source in Japan, because any judicial writer does not point it in his work and a judicial court does not pay a serious attention, but he respects more a judicial precendent or the Executive's opinion than it and so it does not become its source in him.
The law controls a fact and relation and so a study ofcomparative law
(18)
needs the both too , but the both are not legal purely, but a substance. There are the law, the law system, the matter, article or source of law and the fact or relation is in the comparative law too, but they cant be
specined or divided by legal division, because they lie on the
introduction or outline of comparative law, or comparative civil law, but a set of former is legal, and the latter is no-legal and a simple fact and so the set of former can be separated from the latter, but the both are substance too.
Or the method can be divided into substantial method and
procedural method which is how to study a comparative law, the
former can't be specined as the above mentioned, but the latter can be shown even now, because the latter does not need specifylng or dividing
itself .
At once time Maine asserts a historical method in study of
comparative law, which is a procedural and he becomes great master in it in England, he becomes the first occupant of the Corpus Chair of Historical and Comparative( 19) Jurisprudence at Oxtord University, the
date of his appointment 1869, he publishes his Ancient Law (1861)
before, does hls Village Communities ( 1871 ), his EarlyLand and Custom (1883) etc. after, or Amari who a first writer to say 'historical' publishes his Critica di una scienza delle legislazioni comparato 1853, he asserts
that it is necessary to use a hlstorical method to the comparative
method, because an absence of it will be useless for a legislation or jurisprudence, if the method is not historical and he does not become famous at comparative law circle, because he mentions a comparative anatomy too(20)
The historical method does only not means the vertical comparison, but also the past horizontal comparison, and contains a comparlson of past and foreign law, and its fact or its relation which the former controls chiefly, but the historical method is not called "comparative", though it has the comparison which ls vertical and horizontal.
My teacher, Dr. Prof. Ishizaki asserts that it is necessary for studyin cornparative law to use a systematic and joint research method too(2 which is how to study it, a comparist wlll meet with various obstacles in his studying way, even if he wants only to master a foreign language or law, the more difficulties he will encounter, the more foreign language or law, he masters, he will be falling the most difficulties, if he wants to master many others, there is an old saying. "A man who runs after two hares will catch neither." in Japan.
Or Bacon mentions the limits of person's power; he declares that so far as he is concerned his participation in the enterprise must be limited strictly to English law. 'I have read, and with delight, the Scottish statutes, and some other collections of their laws; with delight, I say, partly to see their brevity and propriety of speech, and partly to see them come so near to our laws; yet I am unwilling to put my sickle in another's harvest, but to leave it to the lawyers of the Scottish nation; the rather, because I imagine with myself that if a Scottish lawyer should undertake by reading the English statutes, or other our books of law, to set down positively in articles what the laws of England were, he might oftentimes err, and the like errors I make account, I might incur
in their(22).,
Bacon's mention can be appreciated, because it shows that anyone
has a limits of individual capacity and suggest that it is necessary for studying comparative law to do a division or specialty of it, either needs a synthesis and is indispensa.ble to study it and systematic and joint
method responds to that which is mentioned above, thus Dr. Prof.
Ishizaki's assertion ls timely appropriate.
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A method in the latter, comparative administrative law
The administrative law is born in France in the flfSt time and is introduced into Germany, Italy, Spain etc. and their administrative laws
compose the "Continental administrative law system" and an
administrative court is one of its outstanding trait and they which have it are called a "administrative state" and their administrative law systems do not go across the Straits of Dover.
Dicey says that England has not an administrative law at flfst time,
(2')
but he writes a book which recognizes it - , in the course of time, because England needs early many social laws which aim at conquering contradiction of capitalism, their laws are an administative law, their
varieties grow wildly in England and U.SA receives them, though he
resists a receiving the common law at his war of independence, but the both have not an administrative court and only a judicial court, though
the both have an administrative law which composes its law system, and which is called "AngleSaxon" admmlstrative law system and the
both are called "judicial state"(23)
Japan adds the "Anglo Saxon" admmrstrative law to his
administrative law, the administrative court is abolished and only the judicial court remains after the world war II, because the Constitution says that the whole judicial power is vested in a supreme court and in ferior courts, no extraordinary tribunal shall be established, nor shall any organ or agency of Executive be given final judicial power (Art. 76) and all trial becomes all lawsuit, or all lawsuit becomes all trial and so he can't try his administrative case at once tirne, a famous jurist asserts that Japan converts "administrative state" into "judicial state", but his
assertion is not unjust, because only the judicial court tries an
administrative case in japan too and the administrative court can do only the administrative case in continental nations which have it. Japan has a administrative case litigation law (1962, S. 37) at present time, but
in Japan there is only the judicial court. And there are many
administrative laws and many administrative law systems in the world
at present time, every nation has the former and which will gather
(24)
around the latter which are a same religion or ideology too.
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O
j : I can only show the historical method, and the systematic and joint
research method in the former, but can't mention the substantial
method, because I can't specify it and I can show it in the latter,
comparative administrative law, because I can specify an
administrative law, which includes the present, positive and foreignadministrative law and past foreign administrative law too, and the substantial method is administrative fact or administrative relation of them too which is pure fact. 'And it is necessary at least for studying comparative administative law to use the method and I will be happy in this study, if you know the relation of between the former, comparative law and latter, comparative administative law.
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
There are a lot of books - Gutteridge, Comparative Law, 1949, Constantinesco, Trait6 de droit compar6, I, 11 et 111 1974, Schnitzer, Vergleichende Rechtslehre, 1945, Rodiere, Introduction du droit compar6, 1976, Agostini, Droit compar6, 1988, etc.
Goodnow, Comparative Administrative Law, 1903, Rivero, Cours de droit administrative compar6, 1950-55, Junior, Droit administrative compar6, 1983, TAKAGI, Droit administrative compar , which is written with Japanese language 1986, etc.
Zweigert und k6tz, Einfuhrung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, I, 1971, David, Trait6 6lementaire de droit
compar6 civil, 1976, Arminjon, Nolde et Wolf, Trait6 de droit conrpar6, I which says that the civil law is only possible to attempted to study the comparative law (o.,c., I, p. 7 I), 11 et 111), Paz, Introduczion al derecho civil comparado, 1960, etc.
Gutteridge, o.c., p. 9.
Constantinesco, o.,c., p I et s., I, David, o.p., p. I et s., Cassin, Droit de
1'homme et m thode comparative, Revue international de droit
compar6, 20 (1968) p. 499 et s. Mtiler-Roemer, Ziele und Methoden der
Rechtvergleichung Zwischen beiden Teilen Deutschlands,
Osteuroprecht, p. 5 et s., etc.
Ancel, Utilite et m6thode de droit compar6, 1971, Caemmerer & Zweigert, Evolution 6tat actuel de la m6thode du droit compar6 en Allemagne, Livre de Centenaire, p. 284 et s. II, Rothoef, System der lrrtumslehre als Methoden der Rechtsvergleichung, 1968, etc.
Armin,jon, Nolde et Wolff, o., c., I, 11 et 111, Gutteridge, o., c., p. 72, David,
ibid.
Saleilles, Conception et objet de la science juridique du droit compar ,
Proc s-Verbaux, Congr6ss international de droit compar6 de 1900, I,
1905, Lambert, Etudes de droit commun legislatif, introdiction p. 6, La
fanction du droit compar , 1903, p. 3, Hall, Comparative Law and Social theory, 1932. pp 66-67, Paz, o., c,. p. 103, Sarfatti, Le droit compar dans son essence et dans son application, Recueil Lambert, p. 61 et s., I
Gutteridge, o., c., pp. 1-5, David, o., c., p. 3 et s et 9.
V. Aubin-Zweigert, Rechtsvergleichung in deutschen
Hoch-Schulunterrich, 1952, a study of foreign law is regarded as a study of
(11) (12) (13) (14) (15) ( 16) (17) (18) (19) (20) (21) (22) (23) (24)
comparative law in Japan after war (1945).
V. Gutteridge, o., c., pp. 27-29.
V. Ddlle, Mitterlungen der Gesellschaft ftir Rechtsvergleichung, Rabel z. Nr. I (1950-1951), p. 2 et s. Gutteridge o., c., pp. 6-7.
Masaichiro Ishizaki, An Unifying laws of E. Lambert, 1 1, V. Science of
Law (Ho-Gaku), he is my former teacher.
Zweigert･K6zt, o., c., p. 67 et s. I, TAKAGI, From Comparative Law to Comparative Constitution, pp. 66-70, 1973.
TAKAGI, ibid.
TAKAGI, Positive Administrative Law, pp. 1-8, I, 1990, Positive Administrative Law, pp. 37-94, II, 1988.
Gotteridge, o., c., pp. 75-84.
but comparist does not almost mention a f'act and relation of law, but specialy a interpretation of law needs the both
Gutteridge, o., c., p. 17, Lee, Comparative law and Comparative Language, journal of the Society of Public Teachers of Law, 1936, Polloch, Proc s Verbaux I, p. 258.
Gutteridge o., c., pp. 15-17.
M. Ishizaki, Comparative method and Institution of Comparative law, Comparative Law journal 13.
Gutteridge, o., c., pp. 14-15.
Phillips, Constitutional and Administrative Law, 1967, pp. 31-39.
V. Phillips, o., c., pp. 523-699, Junior, o., c., p. 65 et s., but that book does
not show the german administrative law system, David, Les grands
syst mes de droit contemporains, 1978, Zweigert und K6tz, o., c., p. 67
et s, I, o., c. II, Arminjon, Nolde et Wolff, o., c., p. 42 et s I, 11 et 111, Agostini, o., c., David und Grasman, Einfuhrung in die groSen Rechtsysteme der Gegenwart, 1988 etc.
