法與輿論的互動是否可能？—從日本近年的刑事立法說起

Abstract

This article examines the alternative explanation about law-making, social discourse, and the narrative spaces between them. Using the discussion of public opinion and legislation, author offer an alternative dialogic approach in reframing the function of “public opinion” in law-making.At first, this article opens with a discussion of the new punitiveness movement in Japan recently. In 1990s, Japanese criminal laws and practices began to make the efforts in response to the demands of the victim right movement, which significantly challenge long-held understandings of the meaning and practice of criminal justice─from offender-orientation to victim-orientation.Then, Author examines the function of public opinion as the meaning of recognition in legislation. Adopting a concept of public opinion as contingent outcome in a social transaction, this analysis reveals that not only professional, institutionalized discourse but also resistance to institutionalized authority draws from sociocultural resources, including symbolic, linguistic narrative in victim communities and mass-communication discourse. Author argues the issue of criminal law-making development in recent years, is how to transform social discourse into institutionalized process, especially in the discussion of lawmaking, center to make a joint product of actors’ interpretation between legal professor and laymen.Finally, to illustrate this, one of interesting case study of public opinion and legislation, namely limitation for crimes in the lawmaking process of Japan in 2010 is analyzed. In this part of the article, the discourses has been elaborated, include the deliberation of the ministry of Justice, institutionalized hearing, report of mass-media and the conversation on cyberspace. My aim in this case study is to compare the character of interaction with multi-stage from institutional practices to common-life, and to consider how public opinion was produced in real lawmaking process and whether it provide us with a persuasive understanding of the meani