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法社会学の主題としての「死と生」 : 「死の法社会学」に向けて

The Social Management of Death : Toward a Sociology of Law of Transmundane Experience

Japanese (日本語)

法社会学

62

31-40

有斐閣

2005

2019-12-09

By one's death, the cessation of a life, the whole relationship of a person may be supposed to come to an end. The person's social relationship, however, survives his/her death for some more time. For example, a person who is remembered in other people's memory continues to affect other people's life. Also the person's social relationship may change well before his/her death. For example, a person can envision his/her death in some future to change his/her behavior tremendously. Indeed a person's death is an evolving set of events in life both of him/ herself and for others. In cases of a tragic massacre, the deaths are unexpected and public event causing an extensive societal reaction. From this standpoint, a death may be viewed as a distinctively social phenomenon, a process being comprised by various social, i. e. personal, familial, professional, legal, and etc. experiences. In view of delineating the relationship of phenomena of death as represented in actions of law and death affecting people's lives, this paper takes up 4 types of social experience of death, i. e. (1) hidden death, (2) envisioned death, (3) lived death, (4-a) death as being seen off, and (4-b) death as fuelling other people's life. In the first case, a death is hidden both in medical and in some public discourse. Talking death realistically is a socially restricted behavior. In the second case, a death is envisioned personally as accomplishment of one's life, reflecting cultural activism in the modern society. In the third case, a death is composed of the communal experiences of intimate people through the ceremonies. The norms of commemoration seem to emerge based on this experience. In the fourth case, a death publicly causes a protest or other enduring activities. In dealing with the above aspects of death, the paper generally pursue to collect various insights in the analytical tradition of ethnomethodology, social constructionism, the action theory of Talcott Parsons, and the theory of civilization of Norbert Elias. The author suggests that both the "living law" and "positive law" may emerge from these experiences. The sociology of law should analyze the mechanism of norm emergence and social functions of legal roles, (i. e. legal profession, parties of the legal case, or ordinary people) in those areas, such as succession laws, litigation for life damages, legal regulations to the terminal medicine, and law's contribution to the culturally problematic definition of death and life, among others.

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学術雑誌論文

本文データは学会の許諾に基づきJ-stageから複製したものである。