49

Catalistic Role of Legal Assistance between Formal Law
and Social Norms: Hints from Japanese Assistance
KANEKO Yuka＊

1. Introduction1
The purpose of this article is to review the phenomena of legal and judicial reforms
in Asia from the inside . Japan has been almost the only active donor from the insideof Asia in this field, and, as such, has experienced more than a little friction with
Western donors in the course of assisting draft-makings for Codes and other basic
economic laws, as well as in such judicial reform projects as trainings for judges
and/or ADR promotions2. The essence of such inter-donor friction has often been
understood as a result of differences in legal policies reflected in respective legal
designs. The author used to share the same understanding, and wrote several critical
articles about the problematic outcomes of

neo-classicalpolicy stance taken bymajority of model laws promoted by development agencies especially in economic law
areas3. Recently, however, the author is more inclined to review this kind of friction in
the context of choice of distance from the local straggles for better harmonization
between the imported formal law regime and the existing local regime.
Western donors led by such influential development agencies as the World Bankand the ADB have been eager totransplantparticular legal models, whether

common law or civil law, and accordingly, numbers of academic works have been
devoted to identify better choices of legal models, better paths for the convergence,and conditions for more successful transplantations. It is only recent that these
influential donors have started to pay attention to the outcomes created in the local
society as a result of the transplantation drive4. In contrast, Japan s legal assistance,since its very beginning in the middle 1990s, has been quite far from the idea oftransplanting any sort of legal models. Though Japan is often regarded as a typical＊Professor, Graduate School of International Cooperation Studies, Kobe University.

Journal of International Cooperation Studies, Vol.15, No.3（2008.3）

国

50

際

協

力

論

集

第15巻 第３号

developmental state and its Asian neighbors have often expect it to export somekinds of knowhow forinterventionist

economic development, the basic nature ofJapan s legal system has been, quite to the disappointment of these neighbors, much ofa liberalist since the Meiji modernization, which is basically not much different fromthe Western models5. In this sense, a study of Japan s legal assistance might castnothing new to the current academic debate over the choice of legal models, since itdoes not carry any implication of a third category to be added to the familiar choice
between the common law and the civil law6. Nevertheless, we can still insist theJapan s case offers one unique dimension to the studies on legal and judicial reforms:
that is its highly respectful stance towards the local customary orders. This stance has
been a long tradition ever since the colonial period before WWII when governmentsponsored prominent scholars devoted a lot of energy to the

Kankou-Chousa（survey of the customary laws）in the Korean peninsula and the northeastern part ofChina7. Though such a respectful stance taken by the colonialist government towards
local customs might sound unnatural, it is considered to be a reflection of Japan s own
experience of having been making extreme efforts at harmonizing imported formallaws and existing local customary norms. It is well known that Japan experienced
great difficulties in the process of transplantation of Western law, as is often illustrated
in the popular episode that it took nine years before the final adaptation of the Civil
Code in 1899 since its first version drafted by French professor Boissonarde wassuspended at the national legislative body in 18908. It has been a hard lesson for theJapanese government that the formal law cannot be accepted by the society without
going through a thorough debate over the way of how to integrate newly transplanted
norms into the existing order. This shocking lesson has continuously beenremembered, which has brought about a strong habit of the Japanese to be overly
reluctant to amend the fundamental codes, as well as its uniquely respectful attitudes
towards the local customs in the other countries

law making processes. Suchreluctance remained unchanged even after the WWII when the US occupation policy
forced fundamental changes in the constitutional law as well as in the area of economic
competition9.
Thus, Japan has to be considered as a unique donor in Asia having had its own
hard-learned lessons on the difficulty of transplantation . This makes us to become

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance51

curious enough about what is happening in the far front of legal assistance projects
where this Japanese respectful habit toward the local customary norms meets formal
law models being transplanted by Western donors. How is the Japan s assistancedifferent from that of Western donors? How are these differences dealt with among
donors under what logics or policy choices? This article tries to answer these inquiries
based mainly on case studies: namely, the conflict in Cambodia between the draft Civil
Code assistance by Japan and the Land Law reform directed by the World Bank and
the ADB（section 2）; and another conflict in Cambodia between the draft Civil
Procedures Code assistance by Japan and the draft Law on Establishment ofCommercial Court promoted by Canada and the World Bank（section 3）; and finally
the ADR assistance project by Japan for post-Tsunami disaster Acheh（section 4）.

2. Cambodian Draft Civil Code vs. Land Law: Treatment of Customary System
2-1. Changed Objectives of the Land Reform
Land Law is the area where the friction between the formal law and the customary
legal order emerges most frequently. It is a matter of natural course that the mode ofland usage changes according to the shift of socio-economic structure. However, therisk of friction increases when a land policy aiming at a rapid economic growth isintentionally brought into a traditional agriculture-based society. The nature of friction
can differ according to the development strategies and the respective norms behind
them: When astructuralist

development strategy brings about land policy tostrengthen the agricultural productivity and to overcome adual structurein theeconomy, Land Law is often chosen as a tool in realizing the policy goal via such legal
designs as the land redistribution to create small landed farmers and/or thecooperative land usages, which never abandons the ultimate goal of sustaining an
agriculture-based society, whatever the changes must be assumed by the traditionalsociety. Whereas, the neo-classic development strategy denies the interventionist land
controls by the State, while featuring instead the freedom of contracts based on theabsolute ownership registration system which brings sophisticated market
mechanisms into an agricultural society10. It is often the tendency in such neo-classic
strategy that the promotion of the market mechanism in itself is regarded as the goalin land reforms, while the causal link between such market promotion and the

52

国

際

協

力

論

集

第15巻 第３号

prosperity of an agriculture-based society is no more properly questioned11. Because ofthis replacement of the role of land reform from the means（for better agriculturebased society）to the goal（to promote capitalist transactions to produce higher profit
than agriculture-based society）, the tension can increase all the more between thereformist government and the local society. It is a natural course that such a simple
neo-classic strategy has been directed various empirical or theoretical criticisms by theschools of communitarians and/or sociologists insisting the need of full preservation of
local customary tenures12.
This tension between the two extremes, namely the neo-classic land reform and thecommunitarian, school seems to have been addressed to some extent by a dualistic
approach recently taken by leading donor agencies head by the World Bank. It is aninteresting fact that increasing campaigns have been led to appeal the importance of
paying attentions to local customary orders in the context of poverty reduction andsustainable development, while the most sophisticated neo-classic Land Law reforms
are continued in an unchanged rigorous way 13. This dualistic strategy is often
materialized in the actual project levels as an enactment of twin land laws to
separately cover the highly sophisticated formal land transaction system for urban
areas and the preserved customary system for rural areas, respectively. However, thequestion of how to regulate the increasing intercourses between both systems is left
without any answer, as if these donors deem it a natural course that the lattercustomary system will ultimately be swallowed into the former14. Though this fate ofcustomary orders is trying to be justified by the neo-classic belief that the market willbring about the final way to reduce the poverty15, but so far there seems no empiricalsign that such an assumption has been proven beyond the expectation of believers16.
Thus, the leading donors

campaign for more considerations on local customaryorders turns out to be a mere tentative measure meant for mitigating local hostilities
against drastic land reforms. Their basic neo-classic stance is found unchanged even in
the era of PRSP（Table-1）.

2-2. Neo-Classic Nature of the Cambodian Land Law
The Cambodia s Land Law enacted in 2001 is a typical product of such a dualistic
approach of leading donor agencies to appeal tentative considerations for local

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance

53

Table-1: Land Law Policies according to the Development Strategies
Land Policy
Land Law

Neo-classics
Structuralist
Market-based:
State-based:
Land Reallocation as Land Transaction as
The agricultural policy The agricultural policy
Land Registration to Land Registration topromote the land
confirm the Landtransaction
Reallocation

PRSP
Market-based:
Land Transaction for thepoverty reduction
Urban Area: Land
Registration to promote
the land transaction;
Rural Area: tentativecollective ownership.

customs. The law was primarily a product of ADB s assistance17, which ambitiously
aimed at the full completion of a land ownership registration system to cover thewhole country within 5 years after the promulgation, as well as the promotion ofredistribution or concession of the state-owned lands. Though such an impressive
slogan as Land of Their Own sounded like a progressive reform to involve drastic
land redistributions to the poor, the actual reform was not meant for any intervention
into the status quo. Rather, the land ownership registration was designed to follow theAustralian-style Torrens System which gives an absolute perfection effect to theregistered ownership, and thus considered as a rigorous means to confirm andstrengthen the legality of existing order of land ownership and with that to create firm
enough bases of sophisticated land transactions in the market.
At the same time, what attracts our eyes is the redistribution of state-owned lands
to the local community as a collective ownership . This redistribution is actually not
at all involving any new distribution of state-owned lands, but is actually the reverse:
just a unilateral transformation of the status of what has been under the traditionalcustomary usages by local communities into the new state-owned land status, followed
by formal state approvals for the continued collective usage under the new status as acollective ownership （Land Law, Art. 26）. Moreover, most surprisingly, if a single
member of the community asks for the distribution of his own portion as an individualownership, the already approved collective ownership can be divided into parcels, withthe justification such that for the purpose of facilitating the cultural, economic andsocial evolution of members of the community

andto allow such members to berelieved from the constraints of the community （Art.27）. Thus, the true nature ofstate-owned land redistribution

here is nothing but a hidden confiscation of

traditional community lands, disguised as a tentative confirmation of continued

54

国

際

協

力

論

集

第15巻 第３号

collective usages while preparing a secret path to the ultimate integration into thesophisticated land transactions in the market.
The same Land Law includes provisions for the state land concession for living
and agricultural purposes（Art. 49）, which again do not match the slogan of poverty
reduction, since its basic goal is set on a promotion of large scale agriculturalbusinesses as shown, for example, in such a vast concession area restriction up to
100,000 hectors（Art.59）.
In summary, the Land Law of Cambodia, prepared in the context of poverty
reduction under the auspice of the World Bank and the ADB, gives almost no concrete
proposition for the future of agriculture-based socio-economy in Cambodia beyond theimplication on large scale agri-businesses, but instead reveals a typical neo-classic
policy to trust the destiny of traditional society on to the market, while preparing ahidden path to admit gradual divisions of customary land usages into the parcels
which are sooner or later to be integrated into the absolute land ownership regime.

2-3. Inter-Donor Conflict on the Cambodian Land Law
This very neo-classic policy choice of the Land Law was the issue in the inter-donor
conflict between the Japan s draft Civil Code assistance team and the World Bank/
ADB. Though the friction was never officially made open to the public by suchagencies, it has been much debated in the Japanese academic circle mostly by the civil
law specialists18. Among various technical aspects involved in the friction, the author
will especially discuss the dimension of the treatment of local customary orders.
The fact is as follows: Japan s ODA project to assist the Cambodian draft Civil Codeofficially started in 1999. By the time the final draft was completed and handed over tothe Cambodian government in 2003, the Japanese team（involving the most respectedcivil law specialists head by Professor Akio Morishima）tried several coordination
meetings with the Land Law drafting team made up of practitioners working for theWorld Bank and the ADB. However, these practitioners often neglected thiscoordination sought by the Japanese side, and went on to the final adaptation of theLand Law in 2001. After the adaptation, these Land Law promoters insisted that theJapanese team should amend the draft Civil Code so as to conform to the substance of
the Land Law. The Japanese team did not easily surrender, while empathizing theCatalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance55

superior position of the Civil Code in the holistic consistency of total private law
system in Cambodia to set basic principles for all subsidiary areas including the landlaw.
The core issue of conflict was the legal effect of the land ownership registration
system: the international agencies insisted the transplantation of the Torrens System
which vest a landowner with an absolute

perfection effectupon the registration,

while the Japanese team, based on the result of a survey on local customs conductedby the team prior to the drafting, intended to assign only a notification and priority
effectto the registration, while separating the substantial question of ownership to be

decided outside the registration system. Under the former system, an ownership, once
registered, cannot be repealed even if any customary right holder insists on his
original right, which should have been claimed only at a special dispute resolution
mechanism in the process of registration（Land Law Art. 65-69）. Also, such an
absolute effect of registration will keep away the notion of prescription to override
the once registered ownership（Art. 30-31）. In contrast, under the draft Civil Code,customary right holders can seek chances to continue their accusation even after theregistration, since the transfer of the ownership is valid only upon the true intention of
the parties（draft Civil Code Art.133-134）. Prescription is also permitted（Art.162）,
which represents the draft s basic respectful stance toward the intention of actual
utilization, rather than the abstract venue of registration as a sophisticated transaction
base.
This difference on the effect of registration should not be considered as a meretechnical issue, but rather a quite substantial question to decide the destiny of local
customs. Since the Land Law has chosen a typical dualistic approach to divide theformal system for sophisticated land market and the customary system of collective
ownership, it is extremely difficult to find the standards to be applied in theintermediary dimension where the both systems interact. When, for example, any landdeveloper attempts to penetrate into the customary land area and somehow
successfully obtains formal land ownership registration, the local society might haveless of a legal basis to fight against this invader, since the customary rights are
isolated from the formal system and not given any equivalent definitions under theformal law s logic（Land Law Art.26）. Though this separated treatment for

国

56

際

協

力

論

集

第15巻 第３号

community ownership under the dual structure seems as if a special protective way topreserve the local customs, in fact, it tends to result in the deprivation of the accessfor local people to the chances of formal resolutions.
On the other hand, the draft Civil Code is, as well, silent on the legal substance ofcustomary rights（draft CC Art.306）. However, it also designs the substance of formal
ownership to be far more plastic than the absolute strength envisaged under the Land
Law. Given the mere notification and priority effect of the land registration, the legal
substance of an ownership, either registered or unregistered, is to be sorted out in theindividual process of disputes, which allows chances for customary rights to fightagainst the formal ownership regime, even with certain chances to rewrite them in
return. It should be noted here that the relation between formal law and customary
law is not considered as a separated one which never interact, but rather understoodas mutually relevant, and equally open to the possibility of changes according to thesocial choice to be developed in the accumulation of actual cases. This flexibility of thedraft Civil Code would imply an alternative path in the destiny of the local customaryorder: apart from the anticipation that the traditional agriculture-based society issooner or later to be integrated into a sophisticated capitalist market, there must be
some chance that the local society will seek out a third way of their own: With acertain social control over the extreme type of freedom of neo-classic transactions, thesociety might be able to sustain the bases of living while continuing some agriculturebased development.
This flexibility of the draft Civil Code is understood as stemming from Japan s own
experience since the Meiji modernization. The law on lands or immovable properties is
one of the areas where the society experienced the most frequent disputes in the
midst of rapid socio-economic changes, which had actual effects to force certain
reviews of formal policies, laws, and/or judicial interpretations19. First of such was thechange of the legal effect of the land ownership registration system, which was once
envisaged with the perfection effect but later changed to the mere notification andpriority effect to follow the French law, partly because of increasing abuses of theformer choice. Then, in order to respond to the nationwide burst of land related
disputes, a special court-annexed conciliation system was initiated, which became
actively used. Further, as a result of accumulated resolutions at courts and/or

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance57

conciliations, important rewritings were made by legal interpretations of formal law
provisions, which ultimately resulted in enactments of several special laws to amend
Code provisions, especially in the context of giving more respects to the usage rights（e.g. leasehold, including the long-term leasehold considered as a major category in theformal law corresponding to the customary rights of tenant farmers）while in contrast
limiting the absolute nature of the ownership20.
This historical experience of Japan where social initiatives led the formation of
normative order in the course of interaction between the imported formal law and theexisting local customs must have been reflected in the flexible nature of theCambodian draft Civil Code. The Japanese assistance team had a natural trust on theinitiatives to be taken by Cambodian society in bringing up their own norms just as
the Japanese had been doing21.
Accordingly, in terms of the treatment of local customary orders, a clear contrast isobserved between the rigorous stance of international agencies to force the absolute
ownership regime under a tentative dual structure, and the flexible stance of Japan s
assistance to admit chances of local initiatives in finding the their own way. This
contrast, however, was often disregarded, without enough constructive discussions, ina political process where the international agencies finally succeeded in persuading theJapanese assistance team to amend the draft Civil Code according to the provisions of
the Land Law22. Questions still remains: whether this political result was the best
choice for the Cambodian society; or whether the Land Law（Art.27）s simple
modernist assumption to deem a ultimate collapse of traditional society as a social
evolutionor arelief from the constraints

come together with such advanced

development norms as sustainable development and/or poverty reduction; or whether
the Land Law s simple neo-classic belief in the extreme freedom of land transactions
can be actually proven to be the most effective way to achieve the economic growth,
especially in an agriculture-based society in need of solid bases for better agriculturaldevelopment. How can the same Neo-classic Land Law be supported when theempirical facts in many advanced countries show much milder alternatives to control
land usages and/or transactions from the viewpoints of social needs?
Among all these questions, the most fundamental one must be who is to decide allthese policy choices. While international agencies believe they are best suited to

58

国

際

協

力

論

集

第15巻 第３号

decide, Japan s flexible legal design implies that the local society is the master of thesedecisions. Perhaps, the most serious conceptual gap between two donors must be laidaround this fundamental question of ownership in the legal development.

3. Cambodian Draft Civil Procedure Code vs. Commercial Court: Procedural Rules for
Local Law Development
3-1. Problems of Exclusive Jurisdiction
The equally serious friction between the international agencies and the Japanese
assistance was observed in a procedural law area in Cambodia. Namely, the draft Civil
Procedure Code assisted by Japan since 1999 and handed over to the Ministry ofJustice in 2003, experienced another hard political scene with the draft Law on
Establishment of Commercial Court prepared by the Ministry of Commerce under the
auspice of Canadian aid and the World Bank. The fundamental gap was in theirrespective goals: while the Japanese assistance aimed at the creation of judicial accessfor ordinary Cambodian people in achieving their individual civil rights 23, theCanadian/ World Bank assistance was directed at the promotion of foreign
investment24. Perhaps, this gap might not have been an apparent question if there had
not been an extremely wide exclusive jurisdiction set by the draft Law on
Establishment of the Commercial Court（Art.26）25. Because of this wideness of
exclusive jurisdiction to cover almost all market-side disputes regardless of theinvolvement of non-merchants in weaker bargaining positions, the other problematic
provision meant for exempting the commercial court from the Civil Procedure Code sapplication（Art.31）came under a keen notice by the Japanese team.
The reasons for this exemption were understood, for one thing, to secure thefreedom of choosing internationally popular procedural rules meant for the quickest
way of contract enforcements, and, for the other, to expand the chances of direct
application of foreign laws chosen as the governing law in the contracts26. Assumingthat such intentions to guarantee the freedom of contract were acceptable for the
purpose of foreign investment promotion, however, the Japanese team warned ahazardous side effect that might be caused on local citizens in economically weaker
positions, who could be compelled out of the reach of local law protection, as a result ofsuch an extremely wide exclusive jurisdiction. The Japanese team insisted that local

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance59

citizens were intrinsically vested with the constitutional right to sue under the Civil
Procedure Code, before almost automatically being captured into the quickest
enforcement mechanism of commercial contracts which could contain unfair provisions
forced in asymmetrical bargaining positions.

3-2. Aversion vs. Promotion of the Local Form
Though this conflict among donors is still pending as of 2007 without much progressother than some occasional political responses, the case is still casting meaningful
lessons, especially when it is reviewed in the context of treatment of customary rights.
Reflecting the interests of foreign investors, the basic stance of the draft Law on
Establishment of Commercial Court is apparently aversive toward the local norms,
either formal or customary. In order to secure the applicability of international
standards, it attempts to abate the local litigation which basically applies local norms.
Conversely, the Japanese team set the ultimate goal of the draft Civil Procedure
Code assistance in the establishment of

the civil law regime to be trusted andenforced by the whole Cambodian society

27. It is recognized a consistent stance ofJapanese assistance, just as in the case of the above mentioned land law area, to pay
respect to the social ownership in the local law development process, while securing
the local citizens access to the local forum in the expectation of local initiatives in theformation of their own norms.
In this context of social ownership, two aspects deserve discussion: First, the Civil
Procedure Code was considered as an essential way for local citizens to enforce theindividual rights declared in their own law.28 This constitutes the reason why the Civil
Procedure Code assistance had to be closely coupled with the drafting of the Civil
Code. Second, the role of civil procedure was envisaged as something beyond a mere
static application of the formal law. Japanese assistance to the Code drafting has beenclosely coupled with the judicial training projects which feature such special
curriculums asfact-finding methods

andultimate facts application methods

developed in the tradition of the official judicial training institute in Japan29, all directed
for the training of skills of judges beyond a mere literal application of formal
provisions. It is implied that the judicial process is a forum where the deepening ofsocial norms takes place amid the dynamic interaction of imported formal law and the

国

60

際

協

力

論

集

第15巻 第３号

existing local customs. Judges are expected to act as catalysts in such deepening
process of laws through actual dispute resolution processes.

3-3. Legal Interpretation
An indispensable tool for this catalyst s role of judges must be thelegalinterpretation , which is a technique to control the meaning of formal legal provisions
beyond their literally natural understanding, while applying normative deductions
from the most fundamental principles in the Code s logical regime. Such special
curriculums asfact-findings

and/orultimate legal facts

are very trainings forjudges to improve skills of legal interpretation beyond a literal application of formal
provisions.
Japan s own experience must contribute to this special concern on the interpretation
by judges. It is a known fact that Japanese Civil of Code has never experienced
meaningful changes for more than a hundred years since its initial adoption in 1898. It
is also true that Japanese society has been through the most dramatic changes during
the same period. There must be something to bridge this unchanged Code and thechanging society, which is considered, to a large extent, to be the role of judges infilling in the gap between the Code and the reality, while applying the technique oflegal interpretation

to draw out flexible conclusions to match the social need.

Though the legal interpretation is a more or less common place phenomenon in every
advanced county having the Codes30, it should be noted that the technique plays all themore importance roles in the process oftransplantation

where the local societyneeds to go through with a hard process in the interface with the transplanted law
models31. Empirical evidence from Japan would tell that, not only for catching up withsocial changes in a natural course, but also for filling the gap between the formal law
and the local traditional norms, local society needs the flexible role of judges32. The
author believes that, in the law and development studies, more attentions should bedirected to this important role oflegal interpretationin the long-term deepening

process of local laws, where the imported foreign models are gradually accepted andinternalized into the local existing order. Such a long-term observation must be neededin order to see the factors to divide successful and unsuccessful reforms, rather thansticking to such over-simplified frameworks as legal origin or receptiveness only

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance61

dealing with beginning short-period of transplantations.
The outcome of the pending inter-donor conflict in Cambodia is still unseen. If theconflict is to end up with the full admission of the Commercial Court s unreasonably
wide exclusive jurisdiction and the avoidance of the Civil Procedure Code, then theconsequence will be that the variety of economic disputes to come in the process ofdevelopment must be resolved based primarily on the international standards, which isbeyond the reach of legal interpretation by civil court judges who are going to be
trained for the technique of forming their own norms. The question looks as simple aswhether the foreign investment policy should be placed over the formation of the local
normative regime, which will be handled in the politics among the relevant Ministries.
However, the author believes that the true question behind this is, again, who is themaster of the decision-making. Whatever benefit is to be brought by the foreign
investors, they can never step into the central position to decide the direction of thelocal law development, unless they stop adhering to the international standards andtake part in the midst of dynamic formation process of the new local norms.

4. ADR Promotion in Post-Tsunami Ache: Alternative Forums for Norm Interactions
4-1. Classification of ADRs
Alternative Dispute Resolution（ADR）has been one of the central menus in therule of law projects, given the often unfavorable reputation of the quality of the formal
judicial system33. Also in the above case of Cambodian Land Law reform, a special
conciliation forum was envisaged in every local administrative level to be managed bycentral officials sent from the Ministry of Land Management, which was provided asstrictly compulsory before filing at the court. The role of ADR in this case wasapparently aversive to the formal judicial process, and expected as an enforcement
mechanism to assure quicker resolutions to various complicated conflicts involving
local customary issues, in order to help prompt settlements of ownership at theregistration office34.
However, before generally concluding that ADR is always a superior choice to the
judicial system, it must be worthwhile to reconsider the nature of different types of
ADRs. Table-2 below is an attempt to classify the ADRs according to the major
concern of this article, namely, the treatment of customary rights.

国

62

際

協

力

論

集

第15巻 第３号

Table-2: Treatment of Customary Rights in the Dispute Resolution
FormalNorms
Customary
Norms

Commercial
ADR
International
Standards
Nonapplicable

Administrative
ADR
Applicable

Civil
Litigation
Applicable

Intermediary
ADR
Applicable

Nonapplicable

Possible

ApplicableCommunity
ADR
Nonapplicable
Applicable

Among others, the commercial ADR refers to such a sophisticated forum as thecommercial arbitration where international standards are primarily selected to govern
the merit of disputes, while less respects are being paid to either formal or customary
local norms. In contrast, theadministrative ADR

is an important means for thegovernment to enforce the administrative laws, and accordingly obedient to the local
formal law regime, but usually closed to the local customary norms which could often
contradict the formal law. For example, the above mentioned conciliation mechanism
promoted in the Cambodian Land Law is considered in this category. In this contrast,
the role of civil litigation at court is described as a catalyst between the formal andcustomary norms provided that judges are trained well enough for the flexible
applications of legal interpretation techniques.
Within these contrasts, thecommunity ADR

refers to a variety of traditional

dispute resolution mechanisms found somehow in almost every indigenous community,
where local customary norms exclusively govern their internal affairs without
consideration for the trend of formal laws prevailing outside the community. There isan apparent gap between this closed

community ADR

where only customarynorms are applied and the other forums where formal laws are primarily applied.
Probably, there must be some third category ADR to fill this gap, especially when thesociety is in a rapid change amid the pressure of economic development.
Then, what are the characteristics expected for such intermediary-typed ADRs?
Among all possible intermediary options, the author will especially empathize apositive catalyst role to be taken by ajudicial ADR

for one part, and acommunity-based judicial ADR for another .
35

A judicial ADR here is referring to an ADR closely connected to the court and, inthat sense, backed by a trustful image that they must finally be sanctioned by theauthority, but at the same time assuring a more flexible resolution than a litigation.
Apart from a settlement in the course of litigation and/or a court-annexed conciliation

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistancefrequently observed in many jurisdictions, the Japanese63

civil conciliation systemdeveloped since the Meiji modernization era is unique in its special closeness to thecommunity, such that a lay judge selected among practicing lawyers having merely 5
years experience or so can hear a case at the summary court together with two civil
conciliators recruited from the community. Given the fact that this civil conciliation
has been continuously popular in Japanese society with around 500,000 number ofcases being filed each year, just as many as the filing for litigations, it is obvious thatthe society has a choice for this special combination of the supportive involvement by
the court（preservation of evidence, investigation, enforcement, etc.）and thefriendliness to the community.
A community-based judicial ADR is meant for an adjusted type of community
ADR

having more capacities for making use of formal law s logics, instead of

avoiding them. For example, the Barangai judicial system in the Philippines is known
as a unique trial to strengthen the role of local community leaders to solve theincreasing number of local disputes with a balanced knowledge of both the formal laws
and the local customary norms.

4-2. Nature of ADRs Intended by International Donors
Among these varieties of ADRs, international donor agencies have been empathizing
several different types of ADRs. In their major policy papers, ADR is often explainedin the context of community ADR in the above sense as a mean to ensure access tojustice for the sake of entitlement, human development and poverty reduction.36
However, when it comes to actual reform projects in Asia, these donors often promoteeither the administrative ADR as seen in the case of Cambodian Land Law, or thecommercial ADR for the purpose of foreign investment promotion. How should weunderstand this gap between the agenda and the actual projects? It is unclear
whether these donor agencies simply lack coordination among different divisions37, orwhether they are intentionally making use of an idealistic communitarian notion of
ADR to conceal their true purpose of promoting special ADRs meant for better
enforcing the transplanted models. One thing clear is, when viewed from thetreatments of local customary orders, that all of community ADRs , administrative
ADRs

and

commercial ADRs

are more or less depending on merely one of

64

国

際

協

力

論

集

第15巻 第３号

normative regimes: they are equally indifferent and even aversive to the irrelevant
regimes, either of the customary norms, the formal laws, or the international
standards. There is almost no implication that any of these ADRs can act as a catalyst
to bridge dynamic interactions among these different regimes.

4-3. Need of Intermediary-typed ADRs
In contrast, Japanese legal assistance is often directed to promote someintermediary-typed ADR

as referred to in the above classification. Reference ismade here to the ADR promotion project in post-Tsunami-disaster Acheh, having been
assisted by the Japanese team since 2005 in response to the request from theIndonesian government38. According to the local custom in Acheh of avoiding disputes
for a one-year period of mourning, a burst of disputes relating to land demarcation,
inheritance, adaptation, etc. was anticipated in around the end of year 2005, andtherefore, special training programs were arranged by Japanese assistance in order tofacilitate the conciliation.
Interestingly, the targeted group for the training was not judges or lawyers
belonging to the formal law regime, but the representatives from the customary law（Adat）regime such as Sharia Court judges and/or local community leaders. The
primary reason for this was that the local community seemed to lack a trust on theformal dispute resolution mechanisms since the judges there often had limited
knowledge on the local customary law. Also, the eagerness of Sharia judges andcommunity leaders in contributing to the urgent social needs was apparent, andaccordingly, the assistance was naturally directed to those who would bring about themost effective outcomes. The project was designed so as to form a best structure to
support the leaders of the local customary regime, which helped them tackle the mostcomplicated disputes involving the interaction between the formal law and the local
customary order. These enthusiastic leaders were expected to act as a catalyst in the
dynamic process of formation of new norms to be emerged out of such interactions39.
This must be a good example of assistance to the community-based judicial ADR
in the above mentioned classification. What the donor attempted in the substance of
this assistance was nothing more than providing a bit of knowhow of conciliation
techniques, such as being applied in the post Osaka-Kobe Earthquake disaster inCatalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance

65

Japan. Rather than such substance of assistance, what had more important
implications was the selection of a counterpart from among the local customarysociety. The donor in this case did not intend any sort of ADR to enforce given norms,
but simply tried to assist and stimulate those who showed their will to lead thealternative forums of their own. This self-restraint stance of accompanist must stemfrom an instinctive understanding of Japanese team that the master of the law
development is always the local society, which must be a constant belief only held by adonor who has its own experience to be a recipient of forced law reforms.

5. Implications from the Cases
In this article, several cases taken from recent Japanese legal assistance projects in
Asia were reviewed, especially from the viewpoint of interaction between thetransplanted law and the local existing orders. One highlighted question was who is
to take the leading role in this interactive process. The assistance provided by suchleading donor agencies as the World Bank and the ADB revealed a tendency that thedonor is to decide the fate of law development, as typically shown in the case of LandLaw reform in Cambodia. These international agencies also make much of dispute
resolution mechanisms meant for the better enforcement of given formal law. In thearea of commercial disputes, for example, the establishment of the Commercial Courts
enabling international standards directly applicable both procedurally andsubstantially, have been envisaged so as to establish superior jurisdiction over local
judicial system. Also promoted are the administrative ADRs, often placed before thelocal judiciary, and promoted for better enforcement of the given formal law, as shownin the Cambodian Land Law case. These dispute resolution mechanisms share acommon nature that they are all meant for a quick realization of the transplanted
formal law, without allowing enough chances for the local community to respondagainst the imported norms.
In contrast, Japan s assistance was uniquely formed with respectful considerations to
the local society in taking initiative in their own law development. The draft
Cambodian Civil Code designed the ownership as a unique plastic right which canbe further defined in the accumulation of actual disputes. The draft Civil Procedure
Code assistance was coupled with the judicial training curriculum to help local judges

国

66

際

協

力

論

集

第15巻 第３号

master the techniques to apply legal provisions so as to meet the social needs. The
ADR assistance in Acheh was especially directed to the local leaders who represented
the customary regime but volunteered for the challenging task to solve disputes in thevery front of interaction between formal law and the local order. All these cases
showed a common stance of carefully refraining from substantive decision-making,while creating chances for the local society s own choices, trying to continuously
accompany this social initiative. The formal law, regardless of to what extent it is atransplantation , is considered only as an optional proposal to begin with, and thesociety is expected to own the whole internal brewing process of the law to come.
This respectful, self-restrained stance of Japanese assistance seemed largely stemmingfrom its own experience of hardship in the initialtransplantation

phase forced

under the Westernization pressure, followed by one-hundred-year s internal endeavor
to deepen its own legal regime.
Treatment of customary norms has long been an issue in academia since the Law
and Development Movement

criticism in 1970s. Even the scholars supporting thecurrent legal and judicial reform boom have been showing much concerns on
conditions to realizetransplantations

receptive

minds in the recipient societies for successful. Nevertheless, when it comes to the reality of individual projects,

40

there is an unchanged gap between the ideal and what is actually going on. The neoclassic theory, featuring the freedom of contract and the absolute ownership, is still
dominating the basic contents of law models, which are often evaluated in positive interms of the maximization of profits or the contribution to the GDP growth. Probably,some better frameworks for the evaluation are needed in order to reflect the higher
goals in the legal and judicial reform. Such higher goals, whether or not named either
rule of law , poverty reduction, or empowerment, etc. are going to be defined by thevery people who own the process of law development.

Notes
１ The first version of this article was presented at The Law and Society Association, Paper Session
CRN24 Role of Law Defined, Received and Resisted 4303 on July 28, 2007. The author is thankful to all
valuable comments given by colleagues attended the session, which are extremely helpful in improving
and completing this article.
２ For the details of Japan s legal assistance projects, see ICD News, each issue by the International
Cooperation Department of the Legal Research Institute, Ministry of Justice of Japan. Also for the caseanalyses, see Kagawa, K. and Kaneko, Y.（2007）Houseibi-Shien-Ron（Studies on Legal Assistance）,

Catalistic Role of Legal Assistance between Formal Law and Social Norms: Hints from Japanese Assistance67

Minerva-Shobo, Kyoto（in Japanese）.
３ Kaneko, Y.（2004）Asian Crisis and the Financial Law Reform, Shinzansya（in Japanese）.; Kaneko, Y.
（2006） Consideration of Law Models in the Law and Judicial Assistance Programs, Journal ofInternational Development Studies, Vol.15, No.2（in Japanese）; Kaneko, Y.（2006）A Study of Planningand Evaluation Method in the Legal Assistance Projects in the Result-based Approach , Visiting
Researchers Report Series JR-, Japan International Cooperation Agency（JICA）（in Japanese）.
４ See the discussion of the second stage of the law and judicial reform by Trubek, D. M.（2006） The
Rule of Law in Development Assistance: Past, Present, and Future, in Trubek & Santos, The New Law
and Development: A Critical Appraisal, Cambridge University Press, 2006.
５ See Oda, H.（2001）Japanese Law, Kluwer International, at Chapter 1, for example.
６ There is no debate that Japan s basic legal system belongs to the tradition of Civil Law system. Even
the Constitution as well as American standards introduced in the major economic law area after the
WWII, were cautiously integrated into the basic hierarchy of the existing legal system. See Mikaduki, A.
（1982）Introduction to the Legal Study, Koubundo（in Japanese）,at p.66 for example.
７ For the details of Kanko-Chousa, see, for example Fukushima Masao（1996） Fukushima Masao
Chosaku-Shu（Collection of Works by Fukushima Masao）VI: Comparative Law, Keisou-syobou, Tokyo.
８ It was not at all such a receptive process as understood in Berkowit, Pistor, & Richard（2003） The
Transplant Effect. Am. J. Comp. L. 163 at Table-3 at p.194.
９ See Mikaduki, A. supra, at p.89-98. A cautious or compromised gradualism seems to have been a choiceof Japanese law-makers and judges in harmonizing the application of transplanted norms.
10 See, for example, World Bank（1975）Land Reform Policy Paper: World Bank Development Series,
World Bank; Posnor, R. A.（1977）Economic Analysis of Law, Little Brown and Company, Boston at p.52;
USAID（1986）Policy Determination Land Tenure, USAID.
11 See Atwood, D.A.（1999） Land Tenure in Africa: the Impact on Agricultural Production, 18（5）,World Development, at 660.
12 See, for example, Atwood, D.A. supra, note 12; Platteau, J. P.（2000） Does Africa Need Land Reform,?
in Toulmin, C. & Quan, J. ed.（2000）Evolving Land Rights, Policy and Tenure in Africa, DFID/IIED/NRI.
13 See World Bank & Deininger, K.（2003）Land Policies for Growth and Poverty Reduction: World Bank
Policy Research Paper, World Bank & Oxford University Press.
14 See World Bank/ Bruce, J. W. et al.,（2006） Land Law Reform: Achieving Development Policy
Objectives. World Bank, at p.13.
15 See for example Rolfes, L. Jr.（2006） A Framework for Land Market Law with the Poor in Mind. inWorld Bank/ Bruce, J. W. et al., Land Law Reform: Achieving Development Policy Objectives, 2006, WorldBank.
16 See World Bank/ Bruce, J. W. et al.,（2006）supra, note 14, at p.13 on such remarks as conclusion is
yet to be sought or a more healthy market would ultimately benefit the poor .
17 ADB No. TA2591-CAM for the agricultural policy reform, and succeeding assistance projects.
18 Morishima, A.（2004） Inter-Donor Conflicts and the Need of Reformation of Japan s Assistance, ICD
News, No.14（in Japanese）; Sakata, I.（2007） Cambodian Civil Code and the Land Law, in supra
Kagawa, K. and Kaneko, Y.（2007）Houseibi-Shien-Ron（Studies on Legal Assistance）（in Japanese）.
19 For a review of the dynamism of Japan s law development since Meiji era, among all, see a greatcompile of works by professor Masao Fukushima: see Fukushima, Masao（1996）Fukushima Masao
Chosaku-Shu（Collection of Works by Fukushima Masao）,Keisou-syobou, Tokyo.
20 See for example, Hironaka, Toshio and Hoshino, Eiichi（1998）Minpouten-no-Hyakunen（A Hundred
Years of the Civil Code）,Yuhikaku, Tokyo（in Japanese）.
21 See the ultimate goal set in the Project Design Matrix（PDM）for the Legal Assistance to Cambodia,
Phase 2 prepared by the JICA in 2004, stating that having the civil law system trusted and utilized by
the Cambodian people .
22 See supra Sakata, I.（2007）at p.127-129.
23 See Takeshita, Morio（2004） Issues for Donor Coordination in Cambodia, ICD News, No.14（inJapanese）; also Misawa, Asumi（2004） Outlook of the Japan s Legal and Judicial Assistance in Cambodia,
ICD News, No.16（in Japanese）.
24 See Yasuda, Yoshiko（2007） Cambodian Civil Procedure Code vs. the Commercial Court, in supra
Kagawa, K. and Kaneko, Y.（2007）Houseibi-Shien-Ron（Studies on Legal Assistance）（in Japanese）.
25 All the disputes relating to inter merchant transactions, and mixed transactions between the merchantand non-merchant as long as the latter admits, as well as all the disputes relating to negotiable securities,
company law, insolvency law, financial law, foreign exchange law, product liability law, maritime law,

68

国

際

協

力

論

集

第15巻 第３号

competition law, antidumping law, and intellectual properties（Art.26）.
26 See for example the same flexible nature of the Intellectual Property and Foreign Trade Court in
Thailand operating since 1999.
27 See the ultimate goal shown in the Project Design Matrix（PDM）for the Legal Assistance toCambodia, Phase 2 , supra at note 19.
28 See supra Takeshita, M.（2004） Issues for Donor Coordination in Cambodia ; Also, Uehara, Toshio etal.（2003） Issues and Problems of the Legal Assistance: Lessons from the Cambodian Civil Procedure
Code Drafting, Jurist, No.1243, Yuhikaku, Tokyo（in Japanese）.
29 See Misawa, Asumi（2004） Japan s Assistance to the Trainings of Judges and Prosecutors in
Cambodia, ICD News, No.18（in Japanese）.
30 See Merryman（1977）The Civil Code Tradition, Stanford University Press.
31 See Oda, supra at p. .
32 See Segawa, Nobuhisa（1990） Interpretation of the Civil Code, in Hoshino, Eiichi ed. Minpou Kouza（Lecture on the Civil Law）, Extra Volume I, 1990, Yuhikaku, Tokyo; Also, Yoshida, Katsumi（1999）Civil
Society and the Civil Law Studies, Nihon-Hyoron-sya, Tokyo（in Japanese）.
33 See, for example, World Bank（2003）Legal and Judicial Reform: Strategic Direction, p.5.
34 See Land of Their Own , an explanatory note of the Cambodian Land Law reform project appeared in
ADB Review, May 2005 version.
35 See Ikeda Tatsuo（2002）ADR in Asian and Pacific Countries: Now and in the Future, Ministry ofJustice of Japan, which summarized the result of the Comparative Study Group on ADR in Asia andPacific conducted during 1999-2002 under the auspice of the Ministry of Justice of Japan.
36 See for example, World Bank（2001）Initiatives in Legal and Judicial Reform, p.6.; Also supra World
Bank（2003）p.5.
37 See Santos, A. 2006. The World Bank s Uses of the Rule of Law Promise in Economic Development.
in Trubek, D. and Santos, A. ed. The New Law and Development: A Critical Appraisal, Cambridge
University Press, 2006.
38 As for the detail, see Kawada, Sozaburo（1997） ADR Assistance to Indonesia after the Tsunami
Disaster in Ache, in supra Kagawa, K. and Kaneko, Y.（2007）Houseibi-Shien-Ron（Studies on Legal
Assistance）（in Japanese）at p.148-159.
39 See Kawada supra at p.155.
40 See supra Berkowit, Pistor, & Richard（2003） The Transplant Effect.