The Japan Academy NII-Electronic Library Service

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1 The Japan Academy

2 Grundgesetz für die Bundesrepublik DeutschlandThe Japan Academy

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21 policy actbasic Act on EducationBasic Act Fundamental Law of Education NEPAeach personresponsibilityrecognize 101(c)NEPA Rahmengesetzgebung GrudsatzgesetzgebungGrundlagengesetzgebung Sozialgesetzbuch The Japan Academy

22 Soziale Rechte 2(1)weitgehend 2(2) loi de organiqueloi de programme loi d orientation loi d orientation sur l éducation (1989) loi n du 5 janvier 2006 d orientation agricoleloi n du 23 avril 2005 d orientation et de programme pour l avenir de l écoleloi n du 1er août 2003 d orientation et de programmation pour la ville et la rénovation urbaineloi n du 9 septembre 2002 d orientation et de programmation pour la justiceloi n du 29 août 2002 d orientation et de programmation pour la sécurité intérieureloi n du 9 juillet 2001 d orientation sur la forêtcode de l environnementthe Japan Academy

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27 forum No.1 (1995) Hoffmann-Riem / Schmidt-Assmann / Vosskuhle, Grundlagen des Verwaltungsrechts,2006,S.612 The Japan Academy

28 loi d orientationthe Japan Academy

29 http : //kokkai.ndl.go.jp/ The Japan Academy

30 legal system. I observe that truth lies in the middle : a mixture of both.japan Academy the Act had some irregularity in its content, eventually it was justified in the terms of necessity of democratic revolution in education. In this sense, the birth of basic acts in Japan was nothing but historical and coincidental. Afterwards, however, the basic acts have gradually established themselves as a category of law in Japanese legislative practice with expectations of a highly authoritative character, or a highly enlightening one, of legislation as well as a political strength of legislation to bring about political support for administrative and financial policy means. Almost no one in legislative or implementing arenas or no legal academics have questioned possible incompatibility of basic acts with the modern legal system. This could be evidence that the modern legal system of rights and duties has not firmly been established in Japan. This observation can also be supported by a research in comparative law. Some East Asian nations, such as Korea and Taiwan, have enacted basic acts similar to the ones in Japan. No serious criticism seems to exist in those nations against statutes that include in themselves matters other than legal rules. On the other hand, Western nations do not have basic acts as a category of law. I know of no statutes in Western nations that provide for moral values to be observed by citizens. Having said that, however, I see the fact that legislators in any modern nation commonly expect for enlightening or policy-declaratory strength of legislation. The category of loi d orientation in France should be a good example for that. Some environmental protection statutes in Germany and the USA declare basic principles and provide for each person s responsibility. This should suggest that nations even outside East Asia, to deal with new serious problems human beings are facing, have come to enact statutes to express matters that are not in a strict sense within the modern legal system. The This paper concludes as follows : frequent utilization of basic acts in Japan can be seen as a front-runner of the most modern legal system while it can also be seen simply as a symptom of the fact that Japan has not fully adapted to the modern

31 Japan Academy The local governments, business entities, and citizens ; and provide for councils which advise the government on how to pursue the policy means. Basic acts usually do not contain any legal rules directly affecting rights and duties of private entities. Thus, even if any person or entity does not perform its responsibilities as provided for in a basic act, there would be no legal sanction against such person or entity. Basic acts usually oblige the government to take necessary legal and financial measures while, even if the government fails to take such measures, there is no way for anybody to bring the matter to court. In this sense, basic acts are not complete by themselves in pursuing the policy means provided for therein. Basic acts thus have such features that are different from regular legislation in the modern legal system. Especially, their provisions on citizens responsibility, being so abstract in wording, could reach as far as moral aspects of citizens life. Such provisions might be incompatible with the modern principle of dichotomy of law and morality. Despite these possible problematic aspects, however, basic acts have kept being enacted in Japan. Why is it so? My observation is that there are two factors : the historical factor which derives from the wide-spread social revolutions in Japan which took place after the World War II and the other factor that the basic act is trying to respond to needs in the modern society. Immediately after the World War II, Japan underwent institutional revolutions under the new Constitution : in the area of education, for example, new educational policy was needed to replace the former policy declared in the imperial Rescript on Education(enacted in 1890) which had widely been followed under the Meiji Constitution. Under the new Constitution which contains the principle of citizens sovereignty, the rescript was no longer appropriate, and a new legislation by the Diet was demanded to declare new educational ideas which should consist of peace, democracy, and culture. Even though providing for moral values, the act was considered to be in accordance with the spirit of democracy because it took the form of legislation by the Diet. In the legislative process of the Basic Act on Education, although some argued that

32 for realization of the ideas ; describe responsibilities of the national andthe Japan Academy On Basic Acts Hiroshi SHIONO, M. J. A. Laws entitled kihon-ho are frequently enacted in Japan. Kihon means basic or fundamental in English while ho means statute or law. The first kihon-ho was about education, and according to the Ministry of Education, Culture, Sports, Science and Technology of Japan, the law is translated into English as the Basic Act on Education (enacted in 1947, as amended in 2006). Because Western nations seem to have no such law entitled basic act, it might be a little difficult for Western lawyers to imagine what such law is all about. Although basic act might not be the best translation, the author will follow the practice to translate such law as basic act. Starting with the Basic Act on Education, the Japanese Diet has enacted more than 30 basic acts, including the Basic Act on Environment (enacted in 1993) and the Basic Act on Outer Space (enacted in 2008), which could be described as a small boom in the Diet of enacting basic acts. The purpose of this paper is to overview basic acts in Japan as a category of law, trying to find both Japanese uniqueness and common aspects in legislation of modern states. The Constitution of Japan does not mention basic acts. There is no such statute in Japan which sets forth general matters about basic acts. Basic acts themselves, including the Basic Act on Education, give no definition of what they are. However, it may safely be said that laws entitled as basic acts usually provide for ideas and goals of the policy which is of superb importance to the government, as well as the mechanism of pursuing such policy. For example, in areas such as education, environmental protection, and outer space, basic acts declare policy ideas ; outline policy means to be utilized by the national and local governments

環境影響評価制度をめぐる法的諸問題（4） : 米国の環境影響評価制度について

環境影響評価制度をめぐる法的諸問題（4） : 米国の環境影響評価制度について Kwansei Gakuin University Rep Title Author(s) 環境影響評価制度をめぐる法的諸問題 (4) : 米国の環境影響評価制度について Sekine, Takamichi, 関根, 孝道 Citation 総合政策研究, 33: 73-103 Issue Date 2010-02-20 URL http://hdl.handle.net/10236/3583