Law and Development 2011, Fall semester, GSIDSHIMADA Yuzuru
shimadayuzuru@gsid.nagoya-u.ac.jp

Chapter 1: Rule of law temptations
Points of this class:(1) Original meaning of the Rule of Law, and its development(2) Understanding the various and sometimes
understandings on the RoL, and its consequences.

contradicting(3) Problems of the RoL reform projects.
1. Meaning of the RoL:
The most essential meaning of the "rule of law" is that no one can be above law.
"Law", in this context, is broader concept than mere legislations.
Originally, the "rule of law" is a concept rooted in Anglo-Saxon (England) law.
In 1215, the King of England, John, accepted Magna Carta (the Great Charter) in orderto have support from Barons (feudal rulers). In Magna Carta, John recognizedcustomary rights of Barons, and that even king had obligation to obey customary law ofEngland.
In 17th century, the significance of Magna Carta was reinvented again under
the atmosphere of the civil revolution in England. In 1688-89, as a result ofconfrontation with the Parliament, James II, the king of England, fled to France, and theparliament invited William III and his wife, Mary, from the Netherlands to England tocome to the throne. This event is called the Glorious Revolution.
In this event, William III and Mary issued the "Bill of Rights" that recognized
the supremacy of the Parliament to the King and customary rights for property andfreedom of English subjects.
Both Magna Carta and the "Bill of Rights" included elements of the RoL, suchas supremacy of law, limited power of king, protection of human rights, and so on.
* compare to "rule by law".
2. Broad consensus on the "rule of law", but on detail... reductionism andsequencingAs Carothers points out, "rule of law" was accepted by many governments for:a. facilitation of market economy -- legal and institutional predictability andefficiency,
b. democratization -- new constitutions, electoral systems, political and civilrights
c. alleviation of corruption and ordinary crimes
However, each governments, agencies as well as individuals "may all proceed withputatively common rule-of-law agenda but in practice pursue quite different
preoccupations, either in relative isolation from each other or sometimes at cross1

Law and Development 2011, Fall semester, GSIDSHIMADA Yuzuru
shimadayuzuru@gsid.nagoya-u.ac.jp

purposes."
Given this reality, it might be significant to us to review what the RoL mean. Here, I
explain a wide spectrum of the RoL by referring the "thin concept" of the RoL and the"thick concept" of the RoL.
■Thin concept of rule of law→"formal or institutional aspects of rule of law"
For example...
a. rule or norm for determining which entities may make law
b. law must be made by an entity in accordance with suc rules and norms to be validc. accessibility to law
d. generally applicable (equality before law)e. clarity, consistency, stability and non-retroactive
f. enforceability
g. reasonability
These elements are considered necessary for social stability (free from Hobbesianchaos), preventing arbitrary action of government, securing predictability (of contract),
efficient dispute resolution and legitimate government. From the institutional viewpoint,capable legislature, efficient implementation system (both administrative and judicial),
due process (impartial court, clear rules of evidence etc.) and skilled lawyers arenecessary.
*The RoL reform with this concept has minimum political implication. So, you may
understand why the World Bank can be the biggest donor of the RoL reform fordeveloping countries.
(See Articl IV, section 10 of the IBRD's Articles of Agreement: "The Bank and its officers
shall not interfere in the political affairs of any member; nor shall they be influenced intheir decisions by the political character of the member or members concerned. Only
economic considerations shall be relevant to their decisions, and these considerations
shall be weighed impartially in order to achieve the purposes stated in Article I.")
■Thick concept of rule of law→"basic elements of thin conception"＋"elements ofpolitical morality"
For example, those systems should exist in “rule-of-law” state according to “thickconcept”:
a. free-market capitalism
b. democratic form of governmentc. protection of property rights and freedom (classical human rights)
However, certain states may claim that they have rule of law even though their economy
is not free-market capitalism. For example, Scandinavian countries and Germany arevery different from free-market system, and property rights in those countries areheavily restricted from the US view. But, no one will say that those countries lack theRoL.

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Law and Development 2011, Fall semester, GSIDSHIMADA Yuzuru
shimadayuzuru@gsid.nagoya-u.ac.jp

If so, how about the case of Asian developmental states with very strong stateintervention to economy, for example, Malaysia and Singapore? Or central planningstates such as, say, Cuba?
Actually, various economic arrangements, various forms of governments and various
conceptions of human rights can not be compared by single measure.
While certain aid agencies putting emphasis on human development (e.g. the UNDP)
may say that the RoL inevitably entails political participation, others will concentrate
their legal reform effort to formal institution only according to thin concept in order toavoid lengthy political argument.
Just see the spectrum of conception of human rights:
a. libertarian -- personal freedom is the highest value
b. classical liberal --- protection of property rights and freedom through the socialcontractc. social welfare liberal --- certain limitation on property rights and state intervention toprivate sphered. communitarian --- personal rights must be implemented for its social function
e. Asian value --- duty for community is heavier then individual rights.
3. Ease
Simplistic perspective on legal transplant
Instrumental view on the law
Misunderstanding about the social status of legal elites in developing countries.
law and development (LDM) in 1960s - 1970s
As the author indicates the "rule of law" reform project is not meretransplantation of a rule or rules from one country to another. David Trubek and Mark
Galanter criticized the experiment of "rule of law" reform project in earlier year, so
called "Law and Development Movement", because the lawyers involved in the LDM
supposed the reform too much instrumentally and mechanically.
According to Trubek and Galanter, problems of the LDM are as follows:a. transplanting US legal system --> removing traditional barriers and change economic
behaviorb. unilineal development view (modernization theory) --> “underdevelopment =backwardness”, “Emulating the trajectory of western industrialized countries”
c. based on the view of “liberal legalism”: purposive, pluralistic procedure, equallyapplicable through judiciary, and respected by citizens --> idealized view of US law(*see also, p.28 of the text.)3

Law and Development 2011, Fall semester, GSIDSHIMADA Yuzuru
shimadayuzuru@gsid.nagoya-u.ac.jp

Donors

Projects

Counterparts–Education, Training (US law/ American history Law school, Law students,of political thought/ Legal English, distribution staff of the Ministry of justice,of US law textbook and English law dictionary, lawyers, judges, judge advocates,
legal scholars
Training for prosecutors in US)–Support for democratic system (draftingelection law, the Law Society of Free Vietnam)–Vietnam Law Study (Collection, translationand systemization of Vietnamese law, Lawyer
system in Vietnam, Research about landtransaction law, research about the improvementof private law)
Other (Legal program for improvement ofmilitary efficiency)
UNDP,–Economic Laws (property law, governance Ministry of justice, Ministry ofWorld Bank,process, commercial law, financial law, foreign planningandinvestment,
Asian Development investment law, environment protection law, Parliament, Court, Prosecutor
Bank,banking law, dispute resolution system, labor office, Ministry of water resource,Denmark, Sweden, law, ownership law, maritime law, petroleum Ministry of finance, Board ofCanada,France, resource law, mineral law)audit, Ministry of transportation,
Japan, Australia, the –Justice system (legal information, lawyer National environment agency,
United States,
training/ legal education, criminal/ civil local governments, law schools,
Private foundations,training institutes, Institute of stateprocedure, penal/ private law, family law)
Universities, NGOs, –Empowerment of administrative capacity and law, Ministry of construction,
Law firms(administrative law, official procurement, water Ministry of education and training,
Ministry of foreign affairs, Agency
policy, improvement of institutional capacity)–Democracy/ Human rights (promotion of of education and science, lawyers
human rights, legal advising service)
Comparing legal technical assistance to Vietnam in 60s and 90s. source: Prugh (1975) and Rose (1998)
the United States(judgeadvocateoffice)1960s
1990s-[References]Rose, Carol V., 1997, “The ‘New’ Law and Development Movement in the Post-Cold War Era: A
Vietnam case study”, Law and Society Review, v.32 n.1, pp.93-140.
Prugh, George S., 1975, Law at War: Vietnam 1964-1973, Department of the Army, Washington
D.C.
Trubek, David M., & Galanter, Marc, 'Scholers in Self-estrangement: Some reflections on the crisis
in Law and Development Studies in the United States', Wisconsin Law Review vol.1974.

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