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2005 >> Sex Equality and "Positive Discrimination" : Comparative Legal Analysis >> SUMMARIES >> Professor Yûichiro MIZUMACHI
" Sex Equality and "Positive Discrimination" : Comparative Legal Analysis "
(Co-organized by the Gender Law and Policy Center and the Society of Comparative Legislation)
SUMMARIES
"Positive action" and employment : a reflexive approach of French, American, and Japanese policies
Professor Yûichiro MIZUMACHI
(Tokyo University)
Among countries practicing « positive action », we can see a tendency to promote as well "procedural positive action" measures. Those measures correspond to a new legal model substituting to the classical model of the so-called "rule enforcement approach", which is not any more adapted due to the increasing complexity of our societies.
Such a legal transformation is based on two different legal theories. The first one - called "structural approach" - is supported by Professor Susan STURN (Columbia University); the second one - called "procéduralisation du droit" - being principally supported by Professor Antoine Lyon-Caen. Both theories have various characteristics in common. First, both intend to adapt to increasing social complexity. Second, both focus on procedure, especially on collective and open procedure. Finally, law here intervenes to control a posteriori such a procedure. But, in the same time, those approaches differ. While the "structural approach" is economically oriented, the so-called "procéduralisation du droit" is based on philosophical considerations. An integrated approach of both of these theories could contribute to the development of "procedural positive action" measures.
However, we can observe that both dynamics raise a fundamental problem: the risk to come back to a "pre-modern" society, especially in Japan, where this passage to modernity has not been completely accomplished. To avoid such a risk, it is important to reform the legal system by institutionalizing openness and transparency of deliberation, and by organizing the reflexive coordination of various points of view through concerted discussions.
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