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In your daily life, have you ever wondered, "What are the laws for?" or "Why do we have these rules?" Most people probably think of the existence of laws as something that just goes by without a trace, and have never really thought deeply about their significance.

I am a researcher in legal philosophy, a field that thoroughly examines fundamental issues of law with skepticism and critical thinking, without being bound by common sense or conventional wisdom.

As a researcher, I think about "how many laws we can reduce from this world." Some people may be surprised to hear this. Most people would think that if there were no laws, we would literally fall into a "lawless state" and it would be impossible to maintain social order.

So, was society a chaotic and desolate place before modern laws were established? Not at all. Communities such as villages had shared norms within them, and these norms maintained order.

While law has the role of "maintaining social order," it also has a negative side of "violating individual freedom." In tracing how we came to live in an era in which positive law flourishes today, I am considering the question, "In the absence of positive law, is it possible to maintain social stability through spontaneous order (order that has formed naturally over the course of history)?"

First, let us take a look at the process by which laws are enacted.

The Twelve Tables, the first written law established in the Roman Republic, is said to be a written version of the customary law that had been in use up until that point. Customary law is something that was traditionally practiced or passed down orally among a certain range of people, such as tribes or village communities, and eventually came to have the force of law.

Until then, trials in Rome were conducted by priests, and the priesthood was monopolized by the nobility, so the common people could not know the law. Therefore, the common people strongly demanded that the law be made clear, and as a result, the oldest written law, the Twelve Tables, was created. This marked the beginning of trials based on the law, rather than trials based on divine revelation.

Later, when sovereign states were established in Europe in the 16th to 18th centuries, law passed through a period when it was considered a "sovereign command" and then changed to "something made by the sovereign." However, at this stage, national sovereignty was held by the king, and the people were not yet considered sovereign.

Furthermore, in 19th century Germany, the idea that "legislative power is shared between the monarch and the parliament, and that laws represent the will of the legislator as well as a means to achieve the public welfare" became dominant, and laws came to be increasingly characterized as "rules by which those in power control the people."

Then, at the start of the 20th century, the "Weimar Constitution" was enacted in Germany. In addition to adopting popular sovereignty and universal suffrage with equal rights for men and women, this constitution was the first to guarantee "social rights" (such as the right to life, basic labor rights, and the right of workers to organize), and is said to be the forerunner of 20th century democratic constitutions. These social rights are the right to demand that the state actively intervene so that the socially and economically disadvantaged created by capitalist society can live culturally and healthily as human beings. After the enactment of the Weimar Constitution, the number of statutes allowing the state to intervene in society increased and became more complex.

Then, in the late 1970s in Europe and the United States, excessive "legalization" became a topic of debate. Legalization refers to the phenomenon in which the state has a growing tendency to use the law as a tool to resolve various problems that arise in society, resulting in a proliferation of statutory laws and an expansion of the scope of litigation.

For example, there has traditionally been a principle since the Roman law that "the law does not enter into the home." This indicates the idea that the law should not get involved in problems within the family, but should be left to the family's own autonomous resolution, and is embodied in the consensual divorce system in the Civil Code (a system in which divorce can be obtained by filing a notice without court involvement if both parties agree). However, in recent years, there have been cases where the law goes beyond this principle and actively intervenes in problems within the family, such as the enactment of the Child Abuse Prevention Act and the Act on Prevention of Spousal Violence and Protection of Victims (abbreviated as DV Prevention Act) to combat abuse and violence within the home.

In this way, the tendency to solve social problems through legalization will expand the scope of state power. Eventually, this could manifest as a movement to crack down on signs of crime in order to prevent crime from occurring in the first place.

Looking at actual court cases, there are examples such as "distributing political leaflets in an apartment building was deemed to be a trespassing offense" and "writing graffiti on the exterior wall of a public toilet was deemed to be a criminal offense for vandalism." In one case, a man was indicted for trespassing after entering the apartment of a resident on the upper floor to complain about noise problems in the apartment building. The old common sense that "if you're not a criminal, you won't have to deal with the police" no longer applies.

German philosopher and social philosopher Jurgen Habermas describes the progression of legalization as the "colonization of the lifeworld by law." He fears that the law will intervene in areas that are not normally amenable to legal regulation, such as neighborly relationships, the family, and education, resulting in the destruction of people's lives and communication, and he warns against excessive legalization.

Currently, Japan has approximately 1,900 laws, including the Constitution, and approximately 5,600 cabinet orders and ministerial ordinances, totaling nearly 7,500 laws. There are many laws among them that leave us wondering for what purpose and for whom they were established.

A typical example is the Act on the Use of Numbers to Identify Specific Individuals in Administrative Procedures, which is the legal basis for the My Number System introduced in 2016. The biggest benefit to the government from introducing the My Number system is that it will reveal every single person's income. This will ensure that the Ministry of Finance does not miss out on tax revenue. Furthermore, each government agency will be able to improve the efficiency of their work by introducing the system. On the other hand, the benefits to us, the people, are not clear. There are also fears of information leaks and the expansion of purposes of use. This makes it less of a My Number and more of a "Your Number."

Pharmaceutical regulations are also an example of a hindrance to the freedom of individual action and choice. I'm sure you've heard that it takes longer for new drugs to be approved in Japan than in Europe and the United States. This is called the "drug lag," and it is a serious problem, especially for patients undergoing treatment for intractable diseases, and there are growing calls for a review of the system. Under the current system, even if patients and their families wish to "take the risk and have a chance at life," they have no choice but to give up on treatment.

Some laws cannot be abolished for various reasons, even though they no longer serve a legal purpose. In reality, there are still many laws that make us wonder, "Are such laws really necessary?"

For example, do you know about the crime of "duel"? This is stipulated in the "Act on Duel" enacted in 1889, which prohibits so-called "one-on-one fights". Article 5 states, "Anyone who slanders another person for not accepting a challenge to a duel shall be charged with the crime of defamation under the Criminal Code." In other words, "If you call someone a 'chicken' (coward) for not accepting a challenge to a duel, you shall be charged with the crime of defamation."

In addition, the Liquor Tax Law, which originated in the Meiji era when liquor tax was an important source of government revenue, is a law whose very existence is now questionable. This law prohibits the unlicensed production of alcohol with an alcohol content of 1% or more, even for personal consumption. However, Japanese people have been brewing their own alcohol since ancient times. Alcohol is deeply connected to the food culture of every country, not just Japan. France, Germany, Italy, and other countries have never banned home brewing. Also, Britain and the United States, which banned home brewing in the past, have since lifted the ban. The ban on home brewing in Japan should be called a "denial of culture."

Even if the enactment of laws is inevitable, a true "nation governed by laws" should be one in which laws are passed through the parliament, which represents the will of the people, and which then control the executive and judicial systems. However, the reality is that the regulations that bind citizens and businesses are created by government officials in consultation with industry groups, claiming that they are "for the good of the people." And the current situation in Japan is that the changes and repeal of regulations are freely made at the discretion of government offices and politicians.

So far, we have considered the process of law enactment, legalized society, and the necessity of law. We have also seen the reality that excessive legalization is causing people to be at a loss.

For many people today, nations and laws may be something we take for granted, like the air we breathe. However, there are also those who believe that a better society can be realized by minimizing or eliminating the constraints of nations and laws. Let's look at two examples.

Libertarianism is the idea that "it is justice to respect individual freedom (Liberty) and to keep restrictions on it by the state to a minimum." It aims to ensure efficiency by simplifying the law, limiting state activities to maintaining public order and conducting trials, and entrusting other powers to private companies in the market as much as possible.

In a word, anarcho-capitalism is the idea that "there is no need for government, only the market." All security services such as police and courts are provided by private companies, not by the state, and currency is supplied by multiple banks and is subject to competition for creditworthiness. Therefore, under anarcho-capitalism, individual activities are not dependent on the government, but are carried out by private law and contracts.

Imagine this. To you, would this kind of society be a "happy society"? Or an "unhappy society"?

As long as we live without any interest in the state or the law, and without being aware that we are surrounded by laws, the legalistic society will steadily progress, threatening individual autonomy and freedom.

Currently, the country is experiencing an intensifying debate over whether or not to amend the constitution. In addition, there are increasing opportunities to think about the state and the law, such as the passage of the Act on the Protection of Specially Designated Secrets and the Security-Related Laws.

In your daily life, get into the habit of asking yourself questions like "What is the purpose of a nation?" and "Why do we have such laws?", and try to use your imagination to ask yourself, "What would a world without nations and laws be like?"

(Published in 2016)