What are legal modes of thinking?〔PS 20230228: Ref〕

　The following is a blogger's reconstruction of a brilliant description (pp. 15-18) of "legal modes of thinking" in

Yoshio Hirai, "Hō seisaku gaku - hō seido sekkei no riron to gihō [Legal Policy Studies - Theories and Methods for Designing Legal Systems]," 2nd edition, Yuhikaku, May 1995.

 Although this is mostly a quotation, some parts have been reworded without changing the content for the sake of readability on this blog, due to the need for bullet points and separate paragraphs. Please note that the text has been reworded without changing the content.

平井宜雄『法政策学―法制度設計の理論と方法』第２版、有斐閣、平成７(19951)年５月

1) legal modes of thinking are inseparable from conflict and conflict resolution.

2) Dispute Resolution - Three Ideal Types

(1) "Conflicts in the organization"
One of the disputants oppresses the other by physical force to bend the other to its will or ultimately eliminate it from the relationship.

(2) "Conflict of Interest"
The parties do not act as in (1) above, but instead reach an agreement through trade, negotiation, or compromise, thereby resolving the state of dispute.

(3) "Conflict of Value"
Unlike (1) above, the disputants do not have the resources to overwhelm each other, and unlike (2) above, they cannot resolve the dispute by compromise, so they have a third party intervene to resolve the dispute and submit to the judgment of the third party.

3) "Conflicts in the organization" arise when there is a large disparity in the resources (power, physical strength, etc.) that one party to a dispute can control over the other.

If there is no interdependence of any kind between the parties, the conflict ends with the use of physical force. However, if there is interdependence in any sense, the relationship between the two parties, which differ in the distribution of resources, is organized as hierarchical control, and the status of the superior is justified by some norm. In such cases, conflicts between superiors and subordinates do not manifest themselves on a daily basis.

4) "Conflict of Interest" is a dispute that arises between parties with comparable resources.

Typically, this type of dispute arises when the parties to the dispute share a common understanding of the existence of some object (goods) that should satisfy their needs, but the scarcity of the goods prevents the parties from satisfying their needs. In this case, because the parties have equal resources and a common recognition of the scarcity of the goods, transactions and negotiations occur over the goods, and each party obtains the goods through compromise. Since common recognition leads to the sharing of norms, and since transactions and negotiations develop and differentiate such norms, disputes do not emerge as long as those norms are followed (e.g., production and allocation of goods by the market mechanism).

5) "Conflict of Value" arise when there is no effective means of resolving disputes between the parties.

　Unlike "organizational disputes," one party does not have the resources to overwhelm the other party, and, as in "interest disputes," there is a lack of common recognition or shared norms that the subject of the dispute is a scarce good. Disputes over beliefs, values, or the existence or non-existence of facts. Unlike "organizational disputes" and "interest disputes," these "value disputes" have a greater potential to manifest themselves and create a social need for resolution. If resolution between the parties is difficult, a third party must intervene and make some decision to resolve it. The decisions made by the third party in this "value dispute" are the source of the legal mode of thinking.

6) The legal mode of thinking is non-causal, and non-"ends-means" mode of thinking.

　The third party called upon to intervene to resolve a "value dispute" must not be the one with the resources to control the disputants. If they do, then when a "coalition" occurs between them and one of the disputants, the other party may be overwhelmed by the resources of the two parties, and the dispute may be resolved in favor of only one party. Therefore, since both parties will reject the intervention of such a third party, the one who intervenes is a "third party without resources (a person with resources such as age, experience, knowledge, etc., that by itself cannot control the other party). In other words, they must be in a "neutral" position. Since "third parties without resources" cannot mobilize any physical resources to resolve disputes, all they can do is to make some kind of judgment (decision) about the dispute. And since decisions are made by those who do not have the resources to control the disputants, it is not possible to think in the manner of positioning the parties as a means to an end (because resources are required for this purpose), i.e., an ends-means way of thinking. And since the existence of a causal law must be assumed for the "purpose-measure" relationship to be established, this means that the thinking style relied on by the "third party without resources" is not a thinking style that assumes a causal law. This means that the "third party without resources" must treat the disputants as an end in itself, not as a means to a higher end. In other words, it must adopt a mode of thinking that compares the disputants with each other. In other words, in the absence of the law of cause and effect, we have no choice but to rely on normative judgments about how to treat one of the disputants in comparison with the other, to determine whether it is "fair" or "just" to do so.

　For example, a "third party without resources" is unable to position a dispute as if it were a disease, investigate the cause of the disease, determine which part of one or both parties is responsible for the disease, and eliminate the cause. This is because it is not a way of thinking that compares the parties as a whole, and is therefore perceived as a judgment that is not "fair" and biased toward one party only, and does not play a role in resolving the dispute.

7) Legal thinking must take the dichotomous form of "this or that.

　Because the judgment is made in a "value dispute," it takes the form of whether or not a certain fact existed, or whether or not a certain right or obligation exists, as opposed to a "conflict of interest," which is resolved through a compromise. This characteristic is in contrast to the causal, means-object mode of thinking, which is based on probability.

8) The legal mode of thinking is oriented toward the past.

　Since it is based on mutual comparison of the disputants, it necessarily compares and contrasts what the parties concerned have "done" in the past. Comparison of "what will be done in the future" is excluded because it is based on the law of cause and effect and is evaluated in light of some objective (e.g., prevention of crime). Correspondingly, the purpose-measure mode of thinking is to predict future events according to the law of cause and effect and to indicate the means to be taken to deal with them.

※Ref（PS 20230228）
1) 思考モデルとしての法／ Law as thinking model: 本に溺れたい
2) 過去を探索する学問モデル Thinking model that explores the past: 本に溺れたい