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Top>Opinion>Administrative Legal Studies Are Groaning


Yuzo Nakanishi

Yuzo Nakanishi [Profile]

Administrative Legal Studies Are Groaning

Yuzo Nakanishi
Professor, Faculty of Law, Chuo University
Areas of Specialization: Administrative Law, Public Service Law, etc.

Accumulation from the past; research and education

My occupation is administration law research and education. I have only one year and seven months left until my retirement, and forty-four years have passed since I became a Research Associate in 1967. During this period, I spent relatively more time to work on university administration, so, I feel somewhat shameful about research activities, for which I was initially expected to play some role, and I cannot reflect on classes that I have provided without some regret.

Like other academic fields, administrative legal studies are founded on the accumulation of culture, academic research, and experience in the past. With such accumulation in mind, and based on this accumulation, we examine whether there are any unsolved facts or mistakes in solutions or in positioning, and then create a new theory or conceptual approach as necessary. We then release the results of the research broadly, through which we receive criticism from others about whether or not the research contains any self-justifications or errors. This is how the research or release of studies should be carried out. We also teach students such existing accumulation as well as new theories and conceptual approaches systematically so that they can explore social and natural phenomena themselves and generate new results based on those existing findings. This is the foundation of education. While such a thing is a matter of course, the more facts accumulated over time there are to be delivered to students, the more limited time we can use to select theories and findings suitable to teaching, discover new facts, create new ways of understanding or thinking, receive criticism from others about them, and teach them to students. This also tends to expose us to criticism that university education is old-fashioned or merely an impractical or useless theory.

Exploring what to teach and free time for faculties

To begin with, when you deliver existing theories to students, you need to deeply understand under the space-time constraints under which such theories were created and what problems they were proposed to solve before teaching students the details and purpose of those theories. If there are too many things to teach, however, it may be impossible to adequately check them, and as a result, you might end up teaching students generally accepted theories as if there is apparently nothing doubtful in them, and focus on making students memorize them. Students who receive them, on the other hand, tend to memorize these theories slavishly to prepare for examinations and earn credits-through which students acquire a position in the community-without questioning the nature or significance of the theories. True research and education should never be this way, but you may often fall into such a vicious circle if you do not have enough time. And while recognizing the generally accepted theories as they are, you might use some seemingly novel expression or rearrangement of concepts for making up a new theory, and present it as your research results, to avoid a low rating in your self-assessment of research in the university evaluation, or seek a high score in education by offering students funny riddles. Faculty members in universities have more free time than ordinary people in the community do, and this time must be taken as time that is granted to fundamentally and drastically examine what has been received from the past and would be passed on to students.

Various challenges for administrative legal studies

The issue of discretion is one of the most important things that administrative legal studies have been required to reconsider these days. For this issue, education has gone beyond teachers' control for the very reason of accumulated theories, and administrative legal studies cannot sufficiently meet the role of legal control on administrative events, which the society originally expects from administrative legal studies. To put it a bit roughly, the nuclear power plant accident on March 11 posed administrative legal studies a problem that was not justifiable only by theories such as professional scientific discretion and procedural discretion.

There is another issue, which is not as serious as the problem above, and which has hardly been questioned. Some local governments unilaterally claim the right of owning recyclable waste as their source of revenue, and enact an ordinance specifying that those who make a living by picking up such recyclable waste are subject to penalty. Is it natural to consider that such an ordinance resulted from innovative (!) policy and legal affairs and pay no attention to it, believing that the Constitution does not guarantee the right to make a living by doing things like picking up refuse?

Regarding the enforcement of the Road Traffic Act on illegally parked vehicles, an article that ran in yesterday's newspaper revealed that the police decided to strengthen their control since they found it extremely unsatisfactory finding more drivers who left their cars on the road srtongly resisting the personnel of organizations that were commissioned to check illegal parking. Illegal parking is, of course, not a good thing in that it may cause an accident. In the first place, however, is it consistent with the principle of proportionality required for the exercise of police authority to determine illegal parking automatically when a person left a car only for two or three minutes? If the police insisted on this policy for the purpose of privatization of police activities, it would end up putting the cart before the horse.

I believe that administrative legal studies, which cover a variety of social phenomena, need to be built on recognizing facts as they are, instead of simply emphasizing theoretical frameworks.

Yuzo Nakanishi
Professor, Faculty of Law, Chuo University
Areas of Specialization: Administrative Law, Public Service Law, etc.
Born in Tokyo in 1942. Graduated with a degree from the Faculty of Law, Chuo University in 1965 and the Master Program, Graduate School of Law, Chuo University in 1967 with a master's degree. He became Research Associate (administrative law), Faculty of Law, Chuo University in 1967, and Assistant Professor, Chuo University in 1971, before assuming his current position of Professor, Chuo University in 1978.
Since he was a Research Associate, he has been especially engaged in research on Public Service Law, as well as in administrative law research and education in general.
His publications include Administrative Law 1 [Gyoseiho 1] (Chuo University Correspondence Division, 2002), and Types of Public Servants [Komuin No Shurui] (Yuhikaku, 1985).