THE ROLE OF LAW IN DEVELOPMENT
PAST, PRESENT AND FUTURE

Edited by Y. Matsuura

Nagoya University
CALE Books

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under the JSPS Core-to-Core Program&
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Copyright 䊚2005
By
Center for Asian Legal Exchange
Graduate School of Law
Nagoya University
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THE ROLE OF LAW IN DEVELOPMENT
PAST, PRESENT AND FUTURE
Edited by Y. Matsuura

Nagoya University
CALE Books 2FOREWORD
The efforts to use law to assist social and economic development date back to the
1960s when the United States provided development assistance in South America andAfrica. The American efforts identified difficulties and tasks of the legal reform assistancein the context of the economic development. As Professor Trubek reflects in his contribution
to this volume, the American projects, though full of rich inspirations, were not so
successful.
Since the 1990s leading countries of the world again have tried to use law to assist
developing countries and post-socialist countries to shift to the market economy. We can
not find any elaborate planning and preparation on the part of donors of legal reform
assistance. Rather, it seems to be an emergency response to the desperate needs of thesecountries.
The symposium “The Role of Law in Development —Past, Present and Future—” isan attempt to “stop, listen and see”, after a decade of legal reform assistance, our pastexperience of legal reform projects. Approximately one hundred and fifty experts andacademics participated in the symposium to share their experience and thoughts on thepast projects.
The symposium reviewed the history of legal reform assistance and then discussed
what sort of lawyer will be most effective in the recipient countries. It also examined how
law is invoked and utilized in real social context of developing countries. The very strong
assumption that law is essential to economic development, democracy and protection ofhuman rights was subject to critical scrutiny. A translation project of Japanese law into
English was reported as an effort to share the information about law globally.
All the participants agreed that we did our best efforts but there still remains much to
be done. We also recognized that developed countries must reflect upon their own legal
practice so that their experience should become truly relevant to the recipient countries.
This book is the first product of the consortium of those who are deeply concernedwith the sound development of the recipient countries.

Yoshiharu Matsuura
Professor of Law, Nagoya University Law School— iii —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

Table of Contents
FOREWORD .......................................................................................................................

iii

List of Authors .....................................................................................................................

vi

The “Rule of Law” in Development Assistance: Past, Present, and FutureDavid M. Trubek ................................................................................................................. 1A) The Law and Development Movement of the 1960s .................................................... 1B) Crumbling Pillars: The Collapse of the L&D Paradigm ............................................... 4C) The “Rule of Law” Replaces Law and Development ................................................... 6D) Beyond Critique: What Future for the Rule of Law? .................................................... 16
Selected Bibliography ......................................................................................................... 17
Japanese Approach toward Legal Development Assistance (Law and Development)
Akio Morishima .................................................................................................................. 19
Legal Education for Developing Countries: A Personal Case Study from Indonesia
Cliff F. Thompson ............................................................................................................... 21
Introduction ......................................................................................................................... 21
Cautionary Comments ......................................................................................................... 21
A Personal Case Study from Indonesia .............................................................................. 22
Developing legal education in Vietnam
Lars-Göran Malmberg ....................................................................................................... 33
Introduction ......................................................................................................................... 33
The Project .......................................................................................................................... 33
Law and Legal Assistance in Uzbekistan
Katsuya Ichihashi ...............................................................................................................
Introduction .........................................................................................................................
1. What is Uzbek Law? ......................................................................................................
2. Statutory “Legal Failure” and the Rule of Informal Laws ............................................
Conclusion ...........................................................................................................................
References ...........................................................................................................................

41
41
41
44
48
48

Removing Impediments to the Mobilization of Local Resources
Charles R. Irish .................................................................................................................. 51
1. Introduction ................................................................................................................... 51
2. Legal obstacles to local resource mobilization: A sampling ......................................... 52— iv —

3. Why the Benefits of Reform Are So Great ................................................................... 54
4. The Barriers to Reform Are Substantial ........................................................................ 55
5. Conclusions: Implications for Legal Assistance Programs for Less
Developed Countries ..................................................................................................... 57
The Rule of Law and Economic Development: A Cause or a Result?
Hiroshi Matsuo ...................................................................................................................
1. Introduction ...................................................................................................................
2. The Rule of Law and Economic Performance ..............................................................
3. Good Government and the Rule of Law .......................................................................
4. Conclusion .....................................................................................................................
References ...........................................................................................................................
Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy ofLegal Assistance
Masanori Aikyo ..................................................................................................................
1. Human Rights and Democracy in Vietnam ...................................................................
2. The Position of “Human Rights” and “Democracy” in Legal Assistance
Activities ........................................................................................................................
3. What Do “Human Rights” and “Democracy”
Contribute to Legal Assistance Studies? .......................................................................
4. What is Legal Assistance? – Reviewing the Philosophy Behind It ..............................

59
59
60
64
66
68

71
71
73
75
77

Development and Democracy from a Viewpoint of International Law
Maki Nishiumi ....................................................................................................................
Introduction .........................................................................................................................
1. International law of development / droit international du développement ...................
2. Right to development / droit au développement ...........................................................
3. Sustainable development / développement durable ......................................................
Reference .............................................................................................................................

81
81
81
83
84
84

Improving Legal Transparency: The Translation Project of Japanese Law and
the Prospect of New Comparative Law
Yoshiharu Matsuura ...........................................................................................................
Introduction: Seriously Imperfect Information ...................................................................
2. Real Challenges to the Translation Project ...................................................................
3. Good Translation and Information Technology ............................................................
4. The Translation System and the Computer-aided Legislative Drafting .......................
5. A New Approach to Comparative Law .........................................................................

87
87
88
90
92
94

Appendix
Programme of the Symposium ............................................................................................ 111—v—

List of Authors
David M. Trubek is Voss-Bascom Professor of Law and Senior Fellow of the Center for
World Affairs and the Global Economy (WAGE) at the University of Wisconsin-Madison.
From 1989–2001 he was the UW’s Dean of International Studies and Director of theInternational Institute. Professor Trubek directs the Wisconsin Project on Governance andRegulation, a joint venture of WAGE and the Institute for Legal Studies. He has publishedarticles and books on the role of law in development, the social role of the legal profession,
human rights, European integration, the impact of globalization on legal systems, thegovernance of work and welfare in a new economy, civil litigation, social theory, andcritical legal studies. Currently, he is working on new approaches to governance in Europe
and the United States, transnational economic regulation, and the role of law in economic
development.
Akio Morishima is Professor Emeritus & Former Dean (1994–1996) of the Graduate
School of Law, Nagoya University, Japan. He was a Professor at the Graduate School ofLaw, Nagoya University from 1961 to 1996, during which time he taught subjects on Civil
and Environmental Laws. Since 1998, he has been President and Chair of the Board of
Directors of the Institute for Global Environmental Strategies (IGES). He has chaired the
JICA Committee on Legal Assistance to Vietnam and Cambodia and has co-authoredbooks on tort law, environmental law and medicine and human rights and has written
extensively on environmental law in both Japanese and English.
Cliff Thompson teaches Contracts, Property, and Legal Philosophy. He has been Professor
at the University of Wisconsin, USA, since 1983, and was Dean during the period of
1983–90. He has also been Dean of the state Law Schools in Ethiopia, Hawaii, and Idaho.
From 1960 to 1973 he worked at the law schools in Sudan, Zambia, and Ethiopia. Overthe past 11 years, he has spent a total of eight years in Indonesia, working at the Ministryof Justice and in the university law schools, primarily in legal education reform.
Lars-Göran Malmberg is an Associate Professor in the Faculty of Law at the Universityof Lund, Sweden. He lectures in Public Law, Administrative Law and in Administrative
Procedure Law. He also gives special classes in Air Law and Maritime Law. He is currently
resident coordinator in Vietnam under the program: Strengthening Legal Education in
Vietnam, which is funded by the Swedish International Development Cooperation Agency(Sida). His doctoral thesis was titled: The Right to Conduct Air transportation. His researchand conference presentations cover areas of comparative aspects of Aviation Law inMaritime Law.
— vi —

Dr Malmberg has been involved with the project “Strengthening Legal Education” inVietnam since 1998 and has been responsible as coordinator and master of the projectsince 1999. He has been resident in Vietnam since 2001.
Katsuya Ichihashi is a Professor in the Graduate School of Law at Nagoya University,
Japan. He lectures in the School of Law and Graduate School of Law on Administrative
Law. His research covers comparative administrative law systems, including the former
Soviet Union, Russia and Uzbekistan. He worked in Uzbekistan as a legal adviser for
JICA in 2002, and engaged in legal assistance in the sphere of civil law. Currently he isparticipating in the Legal Assistance Project in Uzbekistan to assist with reforms of thecivil and administrative law system. He has published Gyoseijou no Gimurikoukakuho no
Shudan (Measures of Administrative Compulsory Execution) C. Muroi ed., Shin Gendai
Gyoseihou Nyumon 1 (An Introduction to New Modern Administrative Law), and Futsu
Chihoukokyo Dantai no Jichirippouken (Autonomous Municipal Lawmaking of Local
Government) C. Muroi al. ed. Shingendai Chihou Jichihou Nyumon (An Introduction to
New Modern Local Autonomy Law).
Charles Irish is a Professor at the University of Wisconsin, USA, and teaches courses on
U.S. individual and business taxation, international taxation, tax policy, international
business transactions, and legal issues involving North America and East Asia. As Directorof the East Asian Legal Studies Center, Professor Irish has created a large-scale Master'sof Legal Institutions program, providing Asian law students the opportunity to learn about
the American legal system. He also has done extensive advisory work on tax reform forgovernments in Africa, Asia, and the Caribbean.
Over the course of his career, he has traveled to over 70 countries working with existing
legal systems to improve practical results. He recently created a CD-Rom project onteaching An Introduction to Tax Law in Indonesia to be offered to Indonesian law schools.
This project was originally proposed by the Economic Law, Institutional and Professional
Strengthening Project (ELIPS II), and is awaiting final approval by U.S. AID. In addition,
he has also focused on law in action, arranging exchanges with Chinese lawyers and judges,
recently establishing a program for seminars and internships with Shanghai Xuhui District
Municipal Workers.
Hiroshi Matsuo is a Professor in the Law School at Keio University, Japan. He lectures at
the Faculty of Law and the Law School on Civil Law and Law and Development Studies(Legal Assistance Theory). His research includes comparative civil law systems, natural
law theory, law and development studies, and theory of legal systems. He was a visiting
professor at the University of Sydney and lectured on the Japanese Legal System in 1997,
and was a visiting scholar at the University of Oxford to conduct research on the theory oflegal systems in 1998–1999. He is currently participating in the Legal Assistance Projectin Lao P.D.R. to assist the codification of the Civil Code.
— vii —

Masanori Aikyo is a Professor, at the Center for Asian Legal Exchange, Nagoya University,
Japan and a member of the Institute for Advanced Research, Nagoya University. He is
also currently active as a representative of the “Legal Assistance in Asia — Structuring a
Paradigm for Countries in Asia” project, which is being conducted by the Ministry of
Education, Culture, Sports, Science and Technology. He is a specialist on Asian law,
constitutional law, and comparative legal culture. He has conducted extensive research on
Southeast Asian comparative law with particular focus on Vietnamese law. He has publishedbooks including Betonamu Kenpoushi (A Constitutional History of Vietnam), and Houseibi
Shien to wa Nanika? (What is Legal Assistance?)”.
Maki Nishiumi is a Professor at Chuo University, Japan, where he has taught internationallaw in Japan since 1985. Prior to this, he taught at Kumamoto University, Japan. He is amember of the Council of Japanese Society of International Law and also a member of theInternational Law Association acting as a committee-member of the International Law on
Sustainable Development Committee. Professor Nishiumi has published articles on topics
such as International Law of Development, and Right of Humanitarian Assistance.
He holds a Master of Law degree from Chuo University and Diplome d’etudes
superieures d’Universite d’Aix-Marseille III (France).
Yoshiharu Matsuura is a Professor of Law at the Graduate School of Law, Nagoya
University, Japan. He joined the Nagoya Law Faculty in 2000 and teaches subjects including
jurisprudence, history of ideas in law, law and economics and legal informatics. As avisiting professor he taught at the University of British Columbia and the University of
Wisconsin Law School. He is interested in the development of American legal thought inthe second half of the 19th century, as it was this period during which Japan first attempted
to become a new industrial nation in Asia. In addition, he published a book discussing
how metaphors organize and revolutionize our traditional legal thinking. Currently Professor
Matsuura is engaged in the technical assistance being provided by the Japanese government
in legal reform and is working in Vietnam, Laos and Cambodia. He wishes to utilize
information technology to improve the quality of legislation and legal databases. He is
also working on an ongoing project of the Japanese government to translate a major bodyof Japanese law into English.

— viii —The “Rule of Law” in Development Assistance: Past, Present, and Future

The “Rule of Law” in Development Assistance:
Past, Present, and FutureDavid M. Trubek
This essay is dedicated to Judge Brun-Otto Bryde of the German Constitutional Court, apioneer in the study of “law and development” and a champion of democracy and humanrights. In preparation of this paper, I received invaluable comments, assistance and support
from David Kennedy, Duncan Kennedy, Catherine Weaver and Alvaro Santos
The issue of the relationship between legal institutions and “development”, whether
development is defined narrowly in economic terms, or more broadly, was originally mooted
by Max Weber 100 years ago and has continued to fascinate scholars. In recent years, it has
also come to interest policy makers as development institutions have placed increasing emphasison the “rule of law” as a necessary ingredient in any development strategy. The result has beena proliferation of law reform projects and programs supported by development assistanceinstitutions.
In the 1990s, there was a massive surge in development assistance for law reform projects
in developing and transition countries. These projects involve investments of many billions ofdollars. The World Bank alone reports it has supported 330 “rule of law” projects and spent$2.9 billion dollars on this sector since 1990. At the beginning of this new surge of interest in
law within the development community, there appeared to be a broad consensus on the reasonsto create the “rule of law” in these transitional and developing economies, on what the “rule oflaw” meant, and on the best strategies to implement those objectives. But as more was learned
about the challenges, and a burgeoning literature emerged, it has become apparent that theinitial enthusiasm for the rule of law masked different, and potentially contradictory, visions
and approaches. This paper seeks to trace the origins of the current wave of interest in the ruleof law, identify the contradictions that have emerged, and specify issues now on the agenda.

A) The Law and Development Movement of the 1960s
Fully to understand the present, it is useful to go back to the first wave of interest in law in
the international development assistance community. This was the law and development (L&D)
movement that started in the 1960s and continued into the 1970s. This movement was led bya small band of liberal lawyers working in development agencies, foundations and universities
in the US and Europe. They sought to interest development agencies in the importance of legal
reform. Although the L&D movement was relatively small and short-lived, and had little impact
on the development policies of its time, it did put the issue of how law related to “development”
on the intellectual agenda.
The L&D movement was built around the dominant Western development paradigm of the—1—

Center for Asian Legal Exchange, Nagoya University CALE Books 2time which gave priority to the role of the state in the economy and the development of internalmarkets. This was the era of import-substitution industrialization, in which developing countries
sought to build their own industrial capacity by limiting manufactured imports from advanced
economies and providing subsidies for national firms. The basic economic model was one ofa regulated market economy in which the state played an active role, not just through various
forms of planning and industrial policy but also through state ownership of major industries
and utilities.
Although the rhetoric of development stressed that the ultimate goals were freedom anddemocracy, not just growth, the projects focused on growth. Development policy stressed
economic matters not because planners were uninterested in political democracy or social
development, but because those who cared about such matters thought they would follow
from economic growth. This meant that within this vision it was possible to accept – if not
favor – various forms of bureaucratic authoritarian rule while professing allegiance to ideas of
democracy and promotion of individual freedom. Authoritarianism could be portrayed as atemporary stage that would foster growth but automatically wither away once growth wasachieved.
In this context, it is no surprise that the small band of liberal lawyers who focused on law
reform as a development strategy placed great emphasis on the economic role of law andhighlighted the importance of law as an instrument through which state actors could shape theeconomy. This meant more effective operation of state-owned economic enterprises and“modern” approaches to regulation of the private sector. The L&D movement cherished avision of lawyers as pragmatic, instrumental problem-solvers who would facilitate state-led
economic development. Depending on their role, such “modern” lawyers would help policy
makers shape and enforce effective regulations; advise the managers of state enterprises how
best to realize their goals; and counsel private clients in ways that would allow them to growand profit while acting consistently with the policy objectives of the planners and law-givers.
According to the L&D planners, legal systems in Latin America and other developing
nations were not producing the kind of modern law and lawyers that were needed. The planners
saw many obstacles to legal modernity. Foremost among them was that the legal cultures ofthese nations were highly “formalist”. By this the L&D planners meant rules were developed,
interpreted, and applied without careful attention to policy goals. They alleged that formalist
law teachers taught that law was an abstract system to be applied by rigid internal rules without
concern for policy relevance and impact; formalist legislatures copied foreign models or
followed abstract principles instead of studying social context and shaping rules for instrumental
ends; formalist judges applied rules in a rigid and mechanical fashion rather than first accepting
the inevitable discretion adjudication entails and then looking to the policy goals behind therules to guide them in the application of this discretion; and formalist practitioners stood aloof
from both the goals of the law and the objectives of their clients, issuing interpretations basedon some abstract logical system or rote application of formulae thus impeding rather thanfostering progress.
Formalism, in this sense, engendered other weaknesses. These included weak enforcement,
inappropriate rules, and low legitimacy. Enforcement was ineffective in part because the rules
adopted were inappropriate to specific national contexts and thus were easily ignored, and inpart because of administrative deficiencies and corruption. The rules passed were inapposite:—2—

The “Rule of Law” in Development Assistance: Past, Present, and Future

this was because they either had been copied from more advanced systems without real concern
for national need and attention to specific national context, or because they were elaborated bysome system of abstract logic equally insensitive to real policy concerns. The legitimacy ofthe legal system was low because the rules had little to do with the needs of the country and forthat reason (among others) laws were frequently ignored.
This diagnosis led to the L&D programs that evolved in the 1960s. The primary goal ofthese programs was to transform legal culture and institutions through educational reform andselected transplant of “modern” institutions. If formalism was the source of bad laws, weak
enforcement, and ineffective or counterproductive lawyering, then the most important thing to
do was to create a new, more instrumental legal culture. This culturalist approach led to aheavy emphasis on reform of legal education. Legal education was seen as the source of theevils of formalism, and change of legal education as the way to transform a formalist culture
into an instrumental one. Instrumentally-oriented law schools would not only turn out lawyers
who would approach their tasks in an pragmatic, can-do fashion; they would also be venues
from which a critique of formalism in law making and application could be mounted, as wellas think-tanks that could produce the modern law that was so badly needed.
This culturalist approach meant that the L&D movement found itself working to a significant
degree with law schools and with the legal elites that exercised substantial influence overmajor law schools in the developing world. Less attention was paid to the legislature, judiciaryor practicing bar. This was not because they were thought to be less important, but because it
was assumed that change in the education system was the most effective way to bring aboutchange in all other legal institutions.
Looking back, it is not wholly clear why the idea took hold that legal education was thefulcrum on which all forms of change would occur. It seems as if the planners assumed –paradoxically – that legal education was both highly autonomous and yet very influential.
That is, they assumed that it would be relatively easy to bring about change in the law schools
because they were freer from the forces of “formalism” than the bench or bar while at thesame time they thought that once change occurred in the schools it would immediately influencemodes of adjudication and methods of lawyering. The focus on legal education also may havebeen influenced by the importance of law schools from advanced countries in the development
effort. The pioneers of the law and development movement were drawn from elite law schools
in the US and Europe and, early-on, called on the schools to assist in the effort. And in the US
at least the law schools were actively involved in development assistance projects while theorganized bar, bench, or attorneys general usually were not.
Legal education reform may have been an area of prime concern but it was not the sole
focus of reform energies. It was also recognized that there was a need to create modern rules
and legal institutions. This meant to some degree transplanting legal institutions from moreadvanced countries. But in accordance with the culturalist critique, this had to be done withcareful attention to local needs and conditions to avoid the mimicry that seemed to have playedsuch a major role in legal borrowing in the past.
Both in the reform of legal education and the development of modern law, the emphasis
was on economic law and the training of business lawyers not just in the private sector but also
in the public sector which played such a major role in many third world economies.. Thisemphasis on economic law was not because all L&D planners were indifferent to issues of—3—

Center for Asian Legal Exchange, Nagoya University CALE Books 2democracy, social justice, and human rights; rather it was because many thought that suchvalues were best served by first getting growth going. Moreover, they believed that a more
effective legal system would – by its very nature – insure protection of individual rights. Just
as the development thinkers hoped (or pretended to hope) for spillover from economic growth
to democracy, so the L&D movement believed there would be spillover from an effective andinstrumental orientation in economic law to “democracy values” like access to justice andprotection for civil rights.
What was the theory that lay behind the law and development movement of the 1960s? Ina sense, there was none. Academics played a role, along with lawyers and others in development
agencies, in creating the movement. But they really had no well developed theories to explain
their choice of programs and projects. Beyond a general belief in the importance of law, therelevance of western models, and the importance of a modern legal culture, it was all ad hoc
and pragmatic. This was a time everyone thought it urgent to get on with the job, not theorize.
Theory could—and did—come later.
The Law and Development Movement had a brief and intense life. Of course, by today’s
standards it was never a major enterprise. It was focused on a few countries in Latin Americaand Africa. Projects were small and short-lived, and funds limited. The bulk of the funding
came from foundations, not bilateral or multi-lateral aid agencies. USAID did support someprojects, but neither the World Bank nor regional banks like the Inter-American Bank forDevelopment directly supported the reform of legal institutions. For a brief period there was asurge of energy and activity, engaging a small but dedicated group of reformers. However, by
the middle of the 1970s there was disillusion in the academy, foundation interest declined, andthe official aid agencies showed no interest in moving into legal reform. So, for the moment,
the L&D movement seemed to have run out of stream.

B) Crumbling Pillars: The Collapse of the L&D Paradigm
The movement rested on four pillars; a cultural reform and transplantation strategy; an ad
hoc approach to reform based on simplistic theoretical assumptions; faith in spillovers fromthe economy to democracy and human rights; and a development strategy that stressed stateled import substitution. In the course of the 1970s all four of these pillars crumbled.
As L&D actors gained more experience with Western-inspired reform projects, they began
to see serious flaws in the approach initially taken. Questions arose about both the culturalist
approach and its educational strategy, and the general effort to transplant Western legal
institutions. The educational reform program failed to yield the results hoped for. The law
schools proved more resistant to change than the reformers had imagined. And even if small
gains were made in the educational sphere, and instrumental ideas accepted by some third
world lawyers and legal scholars, the projects failed to have the system-wide impact hopedfor. It seemed as if the structures of law making, law-applying, and practice were quite capableof resisting foreign-inspired cultural change. At the same time, many efforts at legaltransplantation proved similarly disappointing. In some cases the transplants did not “take” atall: some of the new laws promoted by the reformers remained on the books but were ignoredin action. In others laws were captured by local elites and put to uses different from those thereformers intended.
—4—

The “Rule of Law” in Development Assistance: Past, Present, and Future

Finally, even when change did come about in the economic sphere, leading to more
instrumental thinking, effective law making, purposive approaches to adjudication and pragmatic
lawyering, the hoped-for spillover to democracy and protection of individual rights did notoccur. This was a real shock to Western liberal legalists who had assumed that the legal system
was a seamless whole and that reform in one sphere would necessarily lead to progressivechange in other areas. These chastened reformers found themselves facing the frightening
possibility that legalism, instrumentalism, and authoritarianism might form a stable amalgam
so that their efforts to improve economic law and lawyering could strengthen authoritarianrule.
If these lessons from experience started to undermine several of the pillars on which the
L&D movement rested, the edifice was further weakened by the effort to develop a theory of
law and development. While the early L&D projects were put together in an ad hoc fashion
and without any effort to develop a systematic theory, both the academics in the movement
and some of the funding agencies sensed the need for such theory. As a result, substantial
intellectual energy went into the search for a theory of law and development. Such a theory, it
was hoped, would both explain and justify the earlier programmatic efforts and chart the way
for future reform efforts. However, the project had effects opposite to those desired. Rather
that providing a justification for what had been done, and a map for further reform, the theorybuilding project revealed serious flaws in the original approach without offering a robust
alternative that could orient action and guide project development.
It is important to understand the context in which the theory-building effort was undertaken.
The L&D movement was conceived and launched in the early days of the 1960s when liberalinternationalism flourished and liberal legalism was a confident creed. The L&D projects
were largely conceived by people from Western universities and aid agencies. By the end of
the decade, when the project of theory-building really got underway, the context had changed
dramatically. The failures of the initial reform projects were beginning to become apparent.
The anti-Vietnam protests, the events of 1968 in Europe, and other developments had changed
the political context and radicalized students in many of the universities in which the theory
project was housed. At the same time, the initial reform efforts had brought scholars andactivists from the developing world into the effort and they offered perspectives very different
than those of the initial US and European reform groups. As chastened reformers met withsophisticated thinkers from the developing world and radicalized students, very different ideas
about both law and development began to emerge.
In this new context, it is not surprising that the theory project brought to light some of thesimplistic assumptions on which L&D reform projects had been based. Although no explicit
and well-developed theories had been put forward in the original surge of L&D interest, further
analysis suggested that behind ad hoc decision making lay a set of assumptions that constituted
a theory of sorts. It became clear that many project designers had employed a linear model ofdevelopment. In such a model, it was assumed that all nations went through similar stages toreach a common end, represented in this kind of thought by the legal, economic, and social
structures of the US and Western Europe. This naive and ethnocentric neo-evolutionist thinking
made it easy for L&D planners to believe that something called modern law, not surprisingly
found in their own national legal institutions, was the end toward which all legal systems weremoving. Because they could imagine that legal development followed evolutionary stages—5—

Center for Asian Legal Exchange, Nagoya University CALE Books 2linked to stages of economic growth, and that “Western law” was the higher evolutionary
stage towards which all systems were moving, it was easy to believe that the process oftransplanting Western legal culture and institutions would be relatively simple and straightforward. After all, weren’t the reform projects, modeled as they were on the legal institutionsof more “advanced” societies, just modest efforts to accelerate the forces of history? With thewinds of history at their back, how could the reformers fail?
Needless to say, the moment these simplistic ideas were held up to critical scrutiny, theycollapsed. These ideas probably would have fallen of their own weight under any circumstance,
but it helped that the critique emerged in a period in which, amid growing concerns about neoimperialism, their was a great distrust of all forms of western intervention in the developingworld. Thus as the1970s rolled on, the L&D movement had to face the fact that the culturalist
strategy was not working as they had hoped; transplantation often went awry; spillover was
not happening, and critique had demolished the only theory they had. Things looked bad.
But if that were not enough, at the same time development policy was shifting, thus
undermining the fourth pillar. While the L&D movement was going thorough this period ofreflection, changes were afoot in the larger world of development policy. People began toquestion the effectiveness of ISI and of state-led growth. Attention focused on the inefficiencies
of protectionism and the distortions of bureaucratic management of the economy. It was clearthat a paradigm shift in development thought was on the way.
The L&D movement, as such, never recovered from these blows. Of course, some academics
continued to work on these issues and development aid for law reform did not dry up completely.
But the pace slackened. Foundations lost interest in the area and the bilateral aid agencies andinternational financial institutions did not take up the slack. Some academics became
disillusioned. The networks of academics and policy makers that were created in the 1960s
started to unravel, and the study of law and development in the academy declined. Some
declared that the L&D movement was dead.

C) The “Rule of Law” Replaces Law and Development
The rumors of its death were greatly exaggerated. Today, the enterprise of law reform indeveloping and transition countries is big business, far eclipsing even the wildest dreams of
the L&D pioneers. Aid agencies like the World Bank, which once focused primarily on building
roads and dams and getting macro-economic variables right, now proclaim the importance of
the “rule of law” (ROL) and spend billions to reform the legal systems of countries as different
as Albania and Argentina, Bangladesh and Bolivia. How did we get from L&D to “ROL”?
What forces impelled the move of law from the periphery of the development agenda to itsvery core? And what is the difference – other than sheer scale – between the projects of today
and those of the L&D era?
To answer those questions, it is useful to divide the ROL era into two periods: an initial
phase in which the new paradigm took shape and massive investments in law reform began,and a more recent period in which subtle changes can be glimpsed.

1) The global context is transformed
Although the L&D movement took institutional form in the 1960s, it could be seen as a
—6—

The “Rule of Law” in Development Assistance: Past, Present, and Futurecontinuation of processes that dated to the end of WWII. The ROL era, in contrast, emerged
during the latest wave of globalization and the post-Cold War era. This radical change ofcontext helps account for the great differences between ROL and L&D.
The L&D movement emerged in a period in which international economic policy was
supportive of state-led initiatives in partially closed economies. In the advanced countries ofEurope and the US, this was the era of “embedded liberalism”. This regime, guaranteed by the
Bretton Woods system, maintained a balance between openness, democracy, and economic
fairness. Embedded liberalism was an international regime that operated to facilitate domestic
politics and shield domestic systems of economic regulation and social protection in advanced
capitalist countries from global shocks. It allowed individual nations leeway to regulate theeconomy, promote employment, insure against economic risks, and redistribute income. It
supported democratic politics at the national level, ensuring that when governments exercised
the powers safeguarded to them by the international regime they would act in the best interestsof their citizens. This system combined efficiency with legitimacy: its great virtue was thatonce the international machinery was set in motion, the nation states had effective authority
over their economies, major political choices could be made at the national level, and national
governments could be held accountable through democratic processes.
Although the developing world was only marginally affected by embedded liberalism, one
can see strong affinities between the broad intellectual framework the regime rested on anddevelopment policy of the 1950s and 1960s. Embedded liberalism was a compromise between
those who wanted a completely open world economy and those who felt that it was important
to limit the impact of exogenous economic forces and thus allow the state to play a major rolein national economies. For people who accepted such a compromise for the developed world,
it was easy to accept the idea of import substitution industrialization and state-led growth forthe “Third World”.
If the thinking behind embedded liberalism affected the overall architecture of the postWWII era, the emphasis on state-led growth and relatively closed markets was also a way forthe managers of the world economy—or at least of that part of the world economy under
Western hegemony—to cope with the pressures of nationalism and demands for decolonialization. National movements seized control of states in former colonies and sought tobreak ties with their respective metropoles that had been built up under colonialism: this meantplacing more emphasis on national development strategies and endogenous growth, a changeinternational development policy makers accepted and supported.
Finally, there was the Cold War, and the ideological struggle with the Soviet Bloc. Thisrequired that the West promise to be able to deliver economic growth, but do so while also
claiming to promote liberal democracy. Law and development was part of the West’s answer
to communism, part of the promise, often not fulfilled, that a Western-led economic system
could deliver economic growth with freedom.
The contemporary “Rule of Law” enterprise took shape in a very different conjuncture. By
the 1990s when ROL really became big business, major changes had occurred in the world
economy and world politics. International trade had grown substantially. The spread of industry
into the “third world” and the success of export-led growth in Asia, plus the globalization
strategies of major transnational corporations and rapid deregulation of capital markets,significantly increased the degree of world economic integration. The collapse of the Soviet—7—Center for Asian Legal Exchange, Nagoya University CALE Books 2Union helped legitimate the kinds of neo-liberal economic policies that gained credence in theWest under the aegis of the Reagan and Thatcher administrations. The vision of a world ofpartially closed national economies and state-controlled national markets gave way to a visionof a fully open global economy with minimal state involvement and free flows of goods andcapital across national boundaries. This vision affected thinking about development in very
profound ways, creating a new development paradigm with important implications for the law
reform agenda. It implied a triple shift, from state to market, from internal to export-led growth,and from official capital flows to private foreign investment.
These shifts create multiple pressures for the internationalization of legal fields. They provide
opportunities for the more cosmopolitan sectors of the legal profession, valorizing knowledgeof foreign legal systems and contacts with foreign firms. They put pressure of governments tomake legal changes calculated to attract foreign investors. They created the need to strengthen
the legal foundations of market institutions.
One of the more dramatic developments is the emergence of new actors into the legal
scene. These include the growth of more internationally oriented corporate law firms indeveloping countries and the emergence of major multi-national law firms as global players.
Local law firms with cosmopolitan connections were able to expand in size and influence.
And truly global institutions were constructed. Through merger, acquisition, and opening of
branch offices, major law firms, led by the US corporate bar and British solicitors, and joinedby law subsidiaries of the Big 5 (now 4) accounting firms, created global legal practices withhundred if not thousands of lawyers operating in many countries. While the global practice oflaw was not a new phenomenon, the scale of such firms and the geographic range of theiractivities grew geometrically in the 1980s and 1990. The global firms often came to occupy
important positions in national legal orders, thus deepening the contact between national legal
systems and transnational legal ideas and actors and facilitating the spread of a new orthodoxy
about law and economic development.
These forces intertwined with the growing interest of the official development agencies inlegal reform so that the reform projects both found responsive supporters and helped create
additional support elements. Although the remainder of the paper focuses on the development
agencies and their discourse concerning law, it is important to bear in mind that they act in a
broader context that is influenced by multiple actors and forces.

2) Discovering the “Rule of Law”: Human Rights, the Washington Consensus, andthe emergence of law as a development assistance priority
This was the context for the re-discovery of law in the development community. One could
see the ROL movement as arising from the confluence of two forces at work in this new era.
These forces had different roots, were supported by different actors, and defined “development”
in different ways. But they coalesced, at least at the more general level, on the importance ofsomething called “the rule of law”.
a) The Project of Democracy and the need for domestic human rights protections
The first of these could be called “the project of democracy”, and came out of the humanrights movement of the 1970s and 1980s. Remember that the L&D movement thought thatgrowth and cultural transformation would lead to democracy and protection of human rights.
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The “Rule of Law” in Development Assistance: Past, Present, and Future

It soon became apparent that this “spillover” would not occur automatically: human rights had
to be pursued as an independent goal. As a result, “human rights” went from an idea to anorganized movement and institutionalized force. The international community made great
progress in specifying human rights norms, creating machinery for international action to
enforce them, and ensuring that internationally recognized human rights became a part of the
discourse of domestic politics in many countries.
For our story, the most important move was the recognition that purely international
approaches to human rights protection were insufficient without strong counterparts in domestic
law. Events such as the Helsinki process drew attention to the lack of protection for humanrights in domestic institutions. The human rights movement began to look at domestic
institutions, championing the creation of constitutional guarantees, judicial review, greater
judicial independence, and “access to justice”. This path naturally led to ideas about theconstruction of “the rule of law”. It was understood that that project would require substantial
effort both to dismantle older systems that had buttressed authoritarian rule and to create the
new culture and institutions needed to protect democratic freedoms.
b) The Project of Markets and the discovery of institutions
The second, and for the understanding of development assistance the more powerful, force
might be called “the project of markets”. Following the decline of the 1960s statist-ISI paradigm,
a new set of development policy prescriptions emerged from the Washington-based international
financial institutions. This approach stressed export-led growth, free markets, privatization,and foreign investment as the keys to growth. To pursue these goals, it was necessary to create
all the institutions of a market economy in former command economies and remove restrictions
on markets in dirigiste economies such as those in many Latin American countries.
For many who promoted the project of markets, growth would be best achieved if the state
stayed out of the economy except to the extent that—through law—it provided the institutions
needed for the functioning of the market. These include guarantees for property rights,
enforcement of contract, and protection against arbitrary use of government power and excessive
regulation. All this was packaged as “good governance” and deemed important both to stimulatedomestic growth and attract foreign investment.
In the very beginning, promoters of markets may have assumed that the main thing thatneeded to be done was to get the state out of the way, and somehow everything else would takecare of itself. But it soon became apparent that markets do not create the conditions for theirown operation, so that the move to markets would involve major institutional reform. As arecent World Bank Report notes:
Subsequent practical experience suggested that reform efforts could not stop with policies
designed to shrink the state and liberalize and privatize the economies…It turned out that alack of attention to institutions generally, especially legal ones, placed substantial limits on
the reforms as a means to promote economic development and poverty reduction. (WorldBank 2002, p. 17-18)c) The Rule of Law as a common goalOnce the economic development agencies realized that the neo-liberal turn involved positive
intervention to create the institutional conditions for markets, development agencies were
—9—Center for Asian Legal Exchange, Nagoya University CALE Books 2committed to investing in legal reform. They found their concerns overlapped with those of
the proponents of human rights and democracy. For both, the rule of law was a common goal.
While the project of democracy and the project of markets seem very different, they both
identified “the rule of law” as an essential step toward their objectives. Both thought it importantto have constitutional guarantees for certain rights, even if they differed on the rights to begiven primacy. Both thought that an independent judiciary, preferably armed with powers of
judicial review, was desirable, even though they had different ideas about what the judges
were to be independent of and what was the purpose of such independence. And they agreed
that efficiently functioning courts providing cost-effective access to justice were needed,although they probably had different ideas about who should get such access and for whatends they would use it.
Ironically, both the market builders and the democracy promoters showed a faith informalism, albeit a modernized neo-formalism, which was seen as an inherent part of a “ruleof law”. For some of the promoters of democracy and freedom, it seemed self-evident thatindependent judges would possess a method of adjudication that would resolve all questions
without resort to ideology, politics, or even policy-oriented balancing. However, at the sametime that ROL proponents were championing formalism, they also were arguing that it wasnecessary to make legal systems more effective and efficient, and promoting instrumental
thought and greater sensitivity to policy concerns.
The reform agenda that came from this curious amalgam of markets and democracy was
wide-ranging, covering all aspects of the legal system from education and drafting of newrules to organization of the bar. This was especially true for programs in former command
economies where, it was thought, the whole institutional structure of market society had to bebuilt from scratch. Thus, unlike the L&D movement which focused on education, ROL projects
sought to bring about change in all aspects of the legal system. This meant that there were
projects to strengthen the bar and bench as well as the academy, and to reform legal rules inalmost all areas. Practicing lawyers, prosecutors, judges, and court administrators from Westerncountries joined legal academics in this new phase of law reform and transplantation. However,special emphasis was placed on the administration of justice. This includes the efficientmanagement of cases, increased access to justice through the construction of alternative dispute
resolution mechanisms, enhanced means of enforcing judicial decisions, and the promotion of
judicial independence. While there are many reasons why the administration of justice loomed
so large in the ROL programs, it is worth noting that because of their shared faith in the role ofjudges, this is an area in which the project of markets and the project of democracy overlap.
Several distinctive features marked the first phase of the ROL era. In addition to neoformalism and a focus on the administration of justice, there was great emphasis on contract
and property, seen as core ingredients of a market economy, a strong belief in the possibility oflegal transplantation, a willingness to conduct reforms at once in all parts and levels of thelegal order, and a view that there was one model of “the rule of law” that made sense for all
countries. Further, there was a faith that the needed reforms could be imposed from the top,
and would be quickly and easily accepted.
Looking at some of the ideas and projects of this period, L&D veterans could only sigh as
they saw many of the errors of the past being repeated. For them, the emphasis on top-down,
one size fits all reform, suggested that little had been learned from prior experiences. What
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The “Rule of Law” in Development Assistance: Past, Present, and Future

about all the experience with the limits of transplants, the need for adaptation to local contexts,
the possibility of multiple paths to growth, the risk that reforms would be captured by elites
for their own ends, the gap between law the books and law in action? And what could they
make of the apparent return to formalism? After a personal encounter with the managers of the
new ROL program in USAID in the early 1990s, I felt about that agency as Tallyrand felt
about the Bourbons after the Restoration: they had forgot nothing and learned nothing!

3) Critiques of the First Phase
The first phase of the ROL enterprise had a narrow concept of the rule of law and a simplistic
notion of how bring the rule of law into existence. There were three things that could be saidin criticism. The first dealt with the implementation ideas. The others dealt with the institutional
ideas themselves.
a) Questioning implementation methods
The first criticism has already been suggested. It focused on the method to implant the ruleof law. For those who thought that there was a single model good for the whole world, attention
had to be drawn to the fact that working legal institutions must be embedded in diverse contexts.
Those who relied heavily on legal transplants had to be reminded of the complex anddisappointing history of legal transplantation. And those who thought that reform ended withthe passage on new laws needed to be lectured on the historic gap between the law on thebooks and the law in action.
b) Challenging the model itself
But doubts about the enterprise went beyond questions of timing and strategies fortransplantation. There were real questions about the kind of “rule of law” that would result.
Critics expressed concern about the results that would come from successful implantation of
the initial rule of law model.
These more fundamental criticisms might be divided into two broad types. The first were
those who agreed with the basic ideas behind the ROL enterprise, focused on the economy, but
accepted a somewhat broader role for law and legal institutions than the strict, neo-liberalmarket vision that took center stage in the first phase. Early ROL ideas rested on a particular
view of the role for the state in the economy. They presupposed severe restrictions on economic
regulation. Private law was presented as a neutral framework with no distributional effect. The
model did include protection for human rights, but these included rights to property as well as
political and civil rights, and property was emphasized. The role of the judiciary was to police
the boundaries between state and market, and it was thought they would do this through amechanistic formalism.
Critics could note that such a model was at odds with the actual existing arrangements inall advanced capitalist states. They could point out that these countries used law to intervenein markets in myriad ways to correct market failures and allocate risk. They could also notethat actually existing legal systems in established market economies vary in many dimensions,and that there was no single model or set of best practices that could be copied, even if, despite
the prior experience with transplants, copying could be done effectively.
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Center for Asian Legal Exchange, Nagoya University CALE Books 2

While this second criticism fell well within the mainstream of liberal thought about law
and development, a more radical strand may also be discerned. The more radical position
would embrace the first two critiques, but go beyond them to promote a version of the “rule oflaw” that promoted solidarity as well as efficiency and which operated more as an arena inwhich the struggles for various values and interests could go on than as than a fixed entity
rigidly cabined by formal rules and processes or a technocratic machine limited exclusively tocorrecting market failures.
c) revealing contradictions in the amalgam
If we look at the body of thought that arose in the first stage (ROL-1), we can see that it
represented an uneasy amalgam of potentially contradictory strands. Emerging from an unstablealliance of the project of markets and the project of democracy, the amalgam had latent within
it serious tensions. Initially, these were masked by the vagueness of the idea of the rule of law,a term sufficiently general so that different meanings might be and were read into it by partisansof differing visions.
Of course, there were areas of real overlap between the visions of the two projects: thus
both believed in the idea of an independent judiciary that would serve as a shield against
arbitrary state action. And it may be that both sides felt a need to play down differences in theinterest of interesting policy makers in the part of the vision that they really shared. But astime has gone on, and critics have poured cynical acid on some of the initial ideas of the initial
ROL effort, the contradictions always latent in ROL-1 and the neo-liberal development model
have become clearer. These include contradictions between:

Formalism and pragmatism
ROL-1 stressed the importance of a neutral framework for growth, judicial autonomy,
and adherence to the rule of law while simultaneously championing the need for an
instrumental approach to law, pragmatic problem solving, and policy science. Thus it
contained an unstable amalgam of legal formalism and a post-realist legal culture that not
only rejected formalism, but denied that formalism is a realizable goal. According to thelegal realist tenets embedded in post-realist pragmatist thinking about law, legal orders,
private as well as public, are inherently indeterminate. As a result, any effort to revive
formalism and pretend otherwise was mystification. As a result, pragmatists not only rejected
the formalist option but claimed it was a myth behind which rules were being manipulated.
As time goes on, the contradictions between these two inherently inconsistent strands oflegal culture have become clearer.
Economic constitutionalism and democratic empowerment
The ROL-1 amalgam favored strong constitutional or quasi-constitutional protections
for basic economic freedoms including property rights, freedom of contract, and protection
against excessive and arbitrary regulation. At the same time, stress was placed on expanding
access to justice, popular empowerment and more democratic forms of governance. At
some point, these two approaches were bound to clash if democratically-elected governmentschoose to regulate their economies and intervene in market processes.
— 12 —

The “Rule of Law” in Development Assistance: Past, Present, and FutureMarket-oriented growth and direct poverty alleviation
The ROL-1 amalgam arose at a time when the faith in markets to spur growth and lift
all boats was at its apogee. ROL accepted poverty alleviation as a goal, but in the robust
version of this faith, there was no need for direct action for poverty alleviation as thiswould result from growth itself – yet another “spillover” idea in a field plagued by such
notions. Needless to say, as time went on and the promised growth did not always materialize,
or materialized but did not automatically lift all boats, this contradiction also has become
more apparent.
Efficiency and distribution
In the ROL-1 amalgam, stress was placed on law’s role in making the economy more
efficient, but little was said about distribution. There were two different reasons why
distributional issues were down-played. First, according to formalist thinking, the rule oflaw simply creates a framework for efficient allocation of resources and does not itself
have distributional consequences. Second, in robust neo-liberal economic thought,
distributional issues are generally downplayed. But as some in the ROL enterprise havebrought to light the inevitable distributional effects of all legal rules and institutions, andalso seen the desirability of direct forms of intervention for distributional purposes, issuesof distribution have reappeared in the debate.
Globalization and endogenous growth
Two cardinal aspects of robust neo-liberalism are that everyone will benefit from greater
global economic integration, and foreign investment and export-led growth are the bestdevelopment strategies. In this vision, a primary goal for the rule of law is to make national
economies more attractive to foreign investors. To that end, property and other economic
rights should be protected and government intervention limited. At the same time, thisvision stresses the importance of measures of legal harmonization and elimination of any
discrimination against foreigners so that national economies can be more easily linked tolarger global or regional economic entities. But as evidence came in to show thatliberalization can hurt some sectors of the population, and that some economies had grown
successfully while placing limits on foreign investment and stress on internal market
development, the tension between globalization and economic fairness has surfaced.

4) ROL Stage II: Cracks in the Monolithic View of Development and Law
As one looks at policy developments and at the burgeoning law and development literature,
it looks as if we are entering a new stage in ROL era. To be sure, many of the elements of thefirst stage are still with us. But in recent years, critics have brought to light problems with the
neo-liberal Washington Consensus approach to growth and raised doubts about some aspects
the program of law reform initially associated with that approach. These changes and doubts,
when coupled with other developments, show that the project is more complex – and more
problematic – than initially thought. As the L&D veterans feared, the project of institutionbuilding has proven more difficult than imagined. The idea that market development would byitself spur institutional reform has proven an illusion: it is one more “spill-over” idea refuted— 13 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

by experience. As one observer noted, markets do not create the conditions for their own
success. All the problems of transplantation discovered decades ago have belatedly beenrecognized. Finally, there is a growing recognition that the original compromise between the
projects of markets and the project of democracy papered over contradictions now becoming
more apparent.
a) Changes in development policy
The first big change has come about in the broader sphere of development policy. Doubt
has arisen concerning the ease of implementing policies and institutional changes dictated by
the Washington Consensus. This has led to much greater attention to issues of reformsequencing, and to a recognition that active planning and implementation are needed to
implement even the most neo-liberal, free market order. But this questioning has gone beyond
issues of timing and implementation: some more or less within the mainstream have alsoquestioned some of the policies themselves. They have criticized the exclusive emphasis onexport led growth; the strong bias against regulatory intervention; the idea that there is one
and only one road to development that works for all economies; the idea that full and immediate
capital market liberalization is highly desirable; the lack of concern for strong social safety
nets.
As a result, a chastened neo-liberalism may be emerging. In this vision the “big bang” is tobe discouraged and privatization and markets phased in gradually; export led growth policies
will be tempered with concern for domestic markets; limits allowed on foreign investment;
state intervention permitted but only when necessary to correct market failure; and targetedpoverty reduction and limited safety nets allowed.
b) Official ideas about the “Rule of Law” become complexified
The second change has occurred in official thinking about law. One can see signs thatdevelopment institutions have begun to question some of the ideas that were taken as holy writin the first stage of ROL. Mainstream voices are heard questioning formalism; raising doubts
about rigid constitutional constraints on state action; recognizing failures of transplants andtop-down reform; stressing need for context-specific project development; accepting need forlong time horizons; recognizing the need to add labor rights, women’s rights, and environmental
protection to contract, property, bankruptcy, and economic regulation; acknowledging needfor special efforts to ensure access to justice; and questioning the adequacy of the field’sknowledge baseThus the World Bank has recently expressed doubts about the earlier commitment toformalism:
A new conventional wisdom about the rule of law and development seems to havetaken root in development circles. It is asserted that formalist rule of law, which stresses
institutionalized legal mechanisms and absolute autonomy from politics, is a necessity
for economic development. But attempts to transplant formalist rule of law to developing
and/or democratizing countries could actually be counterproductive for economic,
institutional, and political development, especially when informal mechanisms would
be more effective and efficient (World Bank n.d)
Similarly, in a recent note posted on the Bank’s legal institutions website, we see an emerging— 14 —

The “Rule of Law” in Development Assistance: Past, Present, and Future

recognition of the complexity of the relationship between formalism, judicial autonomy, anddevelopment:[T]he economic impact of a particular set of institutions often depends on context.
For example, certain institutions make it difficult for the government to institute policychanges. In some contexts, this is beneficial for economic development, since it makes
government commitments more credible.On the other hand, in times of economic crisis
or rapid change, these same institutions can hinder a government’s ability to respondeffectively. An independent constitutional court may encourage foreign investment by
ensuring the executive does not arbitrarily seize property, but if it were to prevent the
rapid adoption of policies needed to counteract a financial crisis, it might also discourage
investment (ibid.)
These cracks in the monolithic views of the first stage of ROL parallel changes in thinking
about development policy in general. Even those who think that it is possible to create perfectmarkets now see that such a program involves time-consuming and arduous efforts atinstitutional reform. But as it becomes apparent that there will always be market failures ofvarious forms, justifying some degree of regulatory intervention, emphasis is shifting towards
various forms of regulatory and administrative law. These were far from central to the visionof the first stage of ROL. Finally, the recognition that there are different legitimate paths to
growth casts doubt both on the “one size fits all” idea and the sure faith in legal transplants.
c) Expansion of the reform agenda and refinement of methods
The changes in official views have led to changes in the reform agenda and the nature of
projects now being undertaken. A quick survey of recent developments at the World Bank
indicates the following:● explicit recognition of the failures of transplants and to top-down methods● rejection of a one-size fits all approach and stress on the need for context-specificproject development based on consultation of all “stakeholders”● awareness that legal reform requires a long time horizon and cannot be carried out
quickly● recognition of the importance of the rule of law for poorer segments of the population● support for rule of law projects that deal with labor rights, women’s rights, andenvironmental protection● acceptance of the need to make access to justice an explicit dimension of judicial
reform projectsd) Questioning the knowledge base
A final aspect of the current scene is that questions have begun to arise about the knowledge
base on which the whole enterprise has been built. While the World Bank has acknowledgedthat it made mistakes in the past, its’ current publications stress that there is now a strong
knowledge base and effective methodology to guide rule of law projects. However, evensympathetic outside observers have questioned this assurance. In a recent paper, Thomas— 15 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

Carothers, heard of the Democracy and Rule of Law Project at the Carnegie Endowment forInternational Peace, challenged official thinking on a range of issues (Carothers, 2003). Where
the World Bank is quite confident about its ROL credos, to the point of producing tables thatquantify the amount of rule of law and show that the more ROL, the higher national per capitalincome (World Bank 2002), Carothers struck a more skeptical note. He questioned the validityof key aspects of conventional ROL wisdom such as whether:● the rule of law is necessary to attract foreign investment● technical improvements in the administration of justice are necessary for democracy● the court system is the core of “the rule of law”.
Carothers made clear that, despite the expansion of the reform agenda and the refinementof methods, ROL projects remained tied to a Western model—one might add an idealized
Western model—in which the core of the rule of law is thought be the an independent judiciary
applying neutral rules in an objective manner and to the belief that the creation of such an
institution will directly and unproblematically accomplish a wide range of goals from market
development to poverty alleviation. Carothers suggested that despite rhetoric to the contrary,
the development agencies have learned very little from their experiences and there are substantial
obstacles to any systematic learning process in this field.

D) Beyond Critique: What Future for the Rule of Law?
Shifts in views about development and the cracks that have emerged in the original rule oflaw orthodoxy suggest that things are more open and fluid than they once seemed. Critics ofthe Washington Consensus and the legal orthodoxy it engendered have succeeded in opening
up the discourse. The moment seems more open, the discourse more fluid.
But doubts remain. Are we dealing with a situation in small concessions have been madeto other ways of thinking about both law and development, but a hard orthodox core remains?
Or is this a time when new ideas and new strategies might have a chance to be taken seriously?
The World Bank has expanded its reform agenda and rejected the most blatant errors of
implementation. It has added some “social concerns” to the economic rights core of its vision.
But the Bank’s view of “ROL” is still grounded on strong of assumptions about the nature oflaw, the relationship between law and development, and the relevance of Western models,
however contextualized. So the question is: in this period of rethinking and partial doubt, isthere a real chance for the recognition of alternative development strategies and of very different
legal paths that can be followed on the road to economic growth and political freedom? Is it
possible, for example, that acceptance of pragmatism could replace faith in formalism, however“neo” the formalism may be; democratic empowerment take precedence over economic
constitutionalism; poverty alleviation be a goal in itself rather than a result of “trickle down”
policies or token project additions; distributive concerns be highlighted in policy making andthe construction of legal rules and institutions; and a better balance struck between economic
integration and endogenous growth?
My view is that there is an opening for the introduction of new idea. I see the present as aturning point, a moment in which it is possible to go beyond critique of orthodoxy to— 16 —

The “Rule of Law” in Development Assistance: Past, Present, and Futurereconstruction. Thus I think that progressive intellectuals should engage constructively with
the ROL enterprise. I support such values as human dignity, equality, and fairness that areembedded in the idea of the rule of law. I recognize that actually existing legal systems do notnecessarily embody these values, and to some degree can deny them while professing to upholdthem. But we also know that these actually existing legal institutions are arenas in which thestruggle for such values can go on in relatively bloodless ways.
That suggests that the struggle for progressive goals can be compatible with efforts tocreate something called “the rule of law”. And it raises the possibility that ROL development
projects could be shaped to serve the whole population, not just an economic elite. There aregroups in the developing world who seek to do just that. Intellectuals in the north have an
opportunity—and an obligation—to work with them to identify the perils and open up the
possibilities of this present moment.

Selected Bibliography
Bryde, Brun-Otto (1976), THE POLITICS AND SOCIOLOGY OF AFRICAN LEGAL DEVELOPMENT (Metzner).
(1999), North and South in Comparative Constitutional Law—From Colonial Imposition
towards a Transnational Constitutional Dialogue, in W. Benedek, H. Isak, and R. Kicker,
DEVELOPMENT AND DEVELOPING INTERNATIONAL AND EUROPEAN LAW (Peter Lang).
Carothers, Thomas (2003), Promoting the Rule of Law Abroad: The Problem of Knowledge, 34 WORKINGPAPER OF THE CARNEGIE ENDOWMENT FOR INT'L PEACE RULE OF LAW SERIES.
Dezalay Y. and B. Garth (2002), THE INTERNATIONALIZATION OF PALACE WARS (Chicago).
Fiss, Owen (2001), The Autonomy of Law, 26 YALE JOURNAL OF INTERNATIONAL LAW 517.
Howse, Robert (2002), From Politics to Technocracy—and Back Again: The Fate of the Multilateral
Trading Regime, 96 AJIL 94.
Kennedy, David (2003), Laws and Development, in A. Perry and J. Hatchard eds., CONTEMPLATINGCOMPLEXITY: LAW AND DEVELOPMENT IN THE 2ST CENTURY (Cavendish)Kennedy, Duncan (2003), Three Globalizations, SUFFOLK UNIVERSITY LAW REVIEW (forthcoming)
Ohnesorge, John (2000), Asia’s Legal Systems in the Wake of the Financial Crisis: Can the Rule of Law
Carry the Weight (working paper)
Rittich, Kerry (2001), Who’s Afraid of the Critique of Adjudication?: Tracing the Discourses of Law in
Development, 22 CARDOZO L REV 929.
Stephenson, Mathew (2000), A Trojan Horse Behind Chinese Walls?: Problems and Prospects of USSponsored “Rule of Law” Reform Projects in the PRC, 47 CID W ORKING P APER , Center forInternational Development, Harvard University.
Trubek, David M. (1974), Scholars in Self-Estrangement: Reflections on the Crisis in Law andDevelopment Studies in the United States, (1974) WISCONSIN LAW REVIEW 1062-1102 (with Marc
Galanter).
(1994), Global Restructuring and the Law: Studies of the Internationalization of Legal Fields
and the Creation of Transnational Arenas (co-author), 44(2) CASE WESTERN RESERVE LAW REVIEW
407-498.
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Center for Asian Legal Exchange, Nagoya University CALE Books 2(1996), Law and Development: Then and Now, Proceedings of the 90th Meeting of the American
Society of International Law, 90 ASIL PROC., 1996.
(2001), Law and Development, in N. J. Smelser and Paul B. Baltes eds., INTERNATIONALENCYCLOPEDIA OF THE SOCIAL & BEHAVIORAL SCIENCES, Pergamon, Oxford, at 8443.
(2002), Book Review, Nye and Donahue eds., Governance in a Globalizing World, 96 AJIL
748.
Upham, Frank (2002), Myth-making in the Rule of Law Orthodoxy, 30 WORKING PAPER OF THE CARNEGIEENDOWMENT FOR INT’L PEACE RULE OF LAW SERIES.
World Bank (2002), LEGAL AND JUDICIAL REFORM: OBSERVATIONS, EXPERIENCES AND APPROACH OF THE LEGAL
VICE PRESIDENCYWorld Bank, (n.d.) Legal Institutions of a Market Economy Home Page http://www1.worldbank.org/
publicsector/legal/index.htm— 18 —

Japanese Approach toward Legal Development
Assistance (Law and Development)
Akio Morishima
Japanese strategy of the official development assistance in the legal sector is fundamentallydifferent from that of the law and development movement of the United States in the 1960s.
The goal of the legal assistance project is to provide the countries in the process of transition
from socialistic economy to market economy with necessary information and resource training
to establish legal institutions appropriate enough to participate in the global market. Its
methodology is as follows: to organize Japanese expert groups to draft laws or to advise drafting
laws, to dispatch those experts to the partner country and to hold discussion meetings withlawyers of the partner country, and to conduct field studies if necessary. JICA (Japan
International Cooperation Agency) sends long term experts to the partner country to coordinate
project works. The Japanese experts do not make any final decision on the draft law but always
seek for consensus with partner experts. For the purpose of capacity building, judges andgovernment officials are invited to Japan to participate in a four-week seminar.
The philosophy of Japanese Legal Assistance is the partnership or equality between thetwo parties. Of course, the country of transition does not have the appropriate market legal
institutions. The society itself is currently far behind the developed countries. However, thelaw of the country has to function in the society. Even when a country has an ideal legal
system, it is not the law of the country if the system does not work in its society. Japan received
European legal system in the 19th century and took long time to adjust to our own culture andsociety. That is the reason why we request our partners to take initiatives in making final
decisions. Needless to say the countries of transition inevitably have to shift to market economy.
In this sense we have to show our partners what are the merits and demerits of a legal institution
and other alternatives of the market law. However, we refrain from imposing our preferenceon our partners.
Last few years the World Bank has been interested in the coordination of legal assistanceprojects of international organizations and governments under the name of Rule of Law. The
idea could be to improve the governance and democracy of developing countries under judicial
control. As an idea it is not bad, but each country has its own tradition of judiciary and thecheck and balance between the administration and judiciary varies from one country to another.
If the assisting country imposing its own idea of judiciary, the transplanted system will notwork in the society of assisted country.
Having described the experience of Japanese legal assistance, I would like to make mypersonal comment on the Law and Development in the United States. I learned it when I
stayed at Yale Law School in 1971. When former colonies in Africa achieved independence inthe 1960s, they needed assistance to establish their own new governments. I suspected that,taking that opportunity, the US tried to extend its political influence to Africa by exporting US— 19 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2legal system to the countries of former European colonies and to strengthen the political power
against the Soviet Union. However, since the legal institution is a part of the superstructure of
the society, a mere transplantation of legal system may not root into the society. Despite thelegal institutions the dictatorship has prevailed and the administration has lacked governancein many countries in Africa.
So far Japanese legal assistance project has covered only private laws (transaction laws)
and extended to the countries in the process of transition from socialist economy. But somecountries such as Indonesia are interested to receive assistance and the assistance to somepublic law areas such as the jail administration law is requested. We have to reexamine ourassistance policy from the broader perspectives and formulate the long term strategy for thelegal development assistance.

— 20 —

Legal Education for Developing Countries:
A Personal Case Study from Indonesia
Cliff F. Thompson
Introduction
My own work in legal education has been about 20 years in developing countries and morethan 20 years in the USA. The first phase outside the US was in three countries in Africa from1961 to 1973, and the second was eight years in Indonesia between 1993 and 2004.
The current quest for principles of effective development is yielding results, but too late toguide me. My guiding principles, whether right or wrong, were consistent. The generalities
are easy to state. Legal education must be responsive to the needs of the country, and the“effective lawyer” will not only know about modern law in the global age, but also will be able
to apply it in drafting statutes and preparing teaching materials to educate the students, the
new generation of lawyers. You must attract to the law school the students and teachers who
are as excellent as possible. You must avoid one of the greatest barriers to effective legal skills,
namely an education that is too rote, without sufficient opportunities to learn application.
There are many ways to provide students with experience in applying the law, but that makes
it important to note a limitation often overlooked by those who help plan education in developing
countries: money. Faculty members are poorly paid and often needed to take outside jobs thatinterfere with other ambitions. Overall, law schools in developing countries often do not havethe money for adequate libraries, or small-group programs like legal clinics. I have seen
impoverished schools that had alleged clinics that were the equivalent of lecturing on “how toride a bicycle” to 150 people who do not know how to ride a bike. They will learn something,
but not how to ride a bike.

Cautionary Comments
1. Although many financial donors express the need for an effective legal system to support
development, the perceptions over the past half century of the connection between law anddevelopment have changed as much as the waxing and waning of the moon. In 1986 there wasa conference at Arden House, New York, called “After 20 Years” that brought together those
who had served in Africa and Asia, mostly with the International Legal Center, a creation of
the Ford Foundation. If David Trubek and Mark Gallanter had walked into the meeting, there
were those who, I feel sure, would have tarred and feathered them. My own view of Trubek
and Gallanter’s critical work on law development was not unfriendly. We would later become
colleagues at Wisconsin, but I did not know that at the time. My equanimity had two sources.
First, from what I had experienced, much of what they said seemed valid, and anyway not as
apocalyptic as some believed. Second, if law was to have any role in the new countries of— 21 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2Africa, there was an acute need for law-trained people, because they were in short supply or
virtually non-existent. In Indonesia, in contrast, there were hundreds of law-trained people,
but too few with requisite knowledge and skills in modern economic law. So development oflegal education could go forward whatever the latest state of the theory of law and development.
To the extent I needed reassurance, I got it from Willard Hurst’s book, Law and Economic
Development (1964), despite the differences between Wisconsin 1836–1915 and where I wasserving.
2. One peculiar characteristic about legal education, unlike medical education, is thateveryone is an expert. Or so everyone believes. Every law teacher, every lawyer, and a fairnumber of development experts without law training believe they know what is best. Fortunately,
this makes for many good and interesting ideas. Unfortunately, the experts disagree. Once in awhile, a good idea takes hold and comes generally to be accepted. In the USA, forceful advocatesof clinics date from at least 1930, an idea that finally gained general support in the law schools
in the late ’60s and ’70s. Much of the time in the US, however, the wheel is regularly reassessed or re-invented, as new generations question their role and the role of the law school.
Regrettably, disagreement among the experts about different methods can stall progress on
any of the alternative paths of educational reform.
3. The final cautionary comment is that even when the experts are in general agreement,
progress can be badly delayed by a conceptual difference. The problem is whether it is necessary
to create the image of an outstanding or “ideal” legal education in order to proceed. (i) One
view is that an overall conception of an “ideal” curriculum is necessary in order to makesmaller changes meaningful. A common sense version of this might be, “A journey of a thousand
miles must begin with a single step, but you better know which direction you are going.” (ii)
There is a trap, however, in the preceding view that must be noted and avoided. If agreement
cannot be reached on the ideal curriculum, there may be failure to change what we would
otherwise agree was bad, on the basis that an overall conception is needed to guide the smaller
steps. Lon Fuller in The Morality of the Law (1964) called the difference the “morality of
aspiration (the ideal)” as contrasted with the less ambitious “morality of duty.” But the “moralityof duty” can be quite practical – in a common sense image, we can get a hammer if we need topound nails, and we can agree on this even if we disagree about what we should buy for an“ideal” complete set of tools. Likewise, where reformers in a law school agree about specificneeded changes, my advice is to plunge ahead with those changes, and don’t be embarrassed
that there is still lack of agreement on the ideal legal education, because there may never beagreement about the ideal curriculum.

A Personal Case Study from Indonesia
The Suharto regime neglected the Indonesian legal system during three decades ofauthoritarian rule that ended in May, 1998, when public pressure pushed Suharto out of power.
Before his fall, the government belatedly undertook patchwork legal projects. The original
ELIPS Project was one of them. It began near the end of 1992, continued after the democratic
and reform experiment began in 1998, and ended on October 7, 2004. During those 12 years,
there was the original ELIPS Project (1992–1997) and the recent ELIPS II Project (2002–
2004), with shorter versions in between, such as the “ELIPS Bridge.” The ELIPS acronym— 22 —

Legal Education for Developing Countries: A Personal Case Study from Indonesia

became a landmark in Indonesia, but it had shifting if similar titles, the final one being“Economic Law, Institutional & Professional Strengthening”. The Government of Indonesia
and USAID sponsored the ELIPS Projects to help Indonesia to strengthen its legal system inregard to “economic laws.”
When the project began, the phrase “economic law” was in fact not much in use in the
United States. In Indonesia, many law faculty members, if they had heard of “economic law”,
equated it with a framework for a state’s planned economy. But the Project’s purpose was tooil the wheels of commerce and generate new wealth, especially in the private sector, and withan eye to a global market. An entrepreneurial emphasis was behind the GOI-USAID support
for reform in the field of “economic law.”
There are other law reform projects in Indonesia that preceded or accompanied ELIPS,
and such projects are likely to continue after ELIPS. Three decades of neglect of the legal
system left much to reform. The Civil Codes, originally Dutch, lack official translation and arebadly out of date. As reform began, there were virtually no versions in Indonesia of global
economic laws, such as the International of Sales of Goods. Many judges were polishing theircorrupt practices when not responding to political interference. In legal education, the 26
public law schools had an old guard of faculty (an able group), then a generation gap between
it and the younger faculty being hired in the early 1990s. The schools’ curriculae had changed
little from what was adopted in the years following Independence after World War II.
It is not the purpose of this paper to cover all of the reform projects, or even to cover all theactivities of ELIPS, which had many components. Areas of concentrated effort included thefollowing, noted with the name of the full-time Advisor who could provide a valuable accountof the component: government contracts (Hal Sullivan), information technology applied tostatutory material (Charles Shapiro); the new Competition (anti-trust) Commission (John Davis),
and, most recently, legislation and regulations on anti-terrorism and control of money-laundering(Jon Eddy).
My emphasis is on legal education. The paper will note the many ELIPS activities in legal
education, but the emphasis will be on its development of a Masters in Law program in the US
for junior law faculty members. A theory about a legal education program is incomplete without
realizing there are many unanticipated problems that can defeat the program. These are likethe “transaction costs” that bedevil economic models. So I will provide a bit of the troublesome
reality, an illustrative story with twists and cautionary tales. An underlying theme will be thatthe overseas law degree programs, including those in Australia, England, Germany, Japan, theNetherlands, and the USA and others, are the most effective form of faculty upgrading indeveloping countries that need to reform their legal education, and were essential in Indonesia
to jump-start the engine of legal reform.
That the GOI-USAID law reform project contained a significant legal education component
in 1992 was unusual. Since then, there has been worldwide no development project in legal
education on the scale of the ELIPS Project. Law reform projects often assume that there areenough experts to carry out the new designs, but ELIPS recognized that the decades of neglect
in the legal system required assistance to upgrade the legal experts and to create more of them.
The Project had significant funding for legal education for much of the period 1993–2004.
ELIPS applied three guidelines for achieving effective legal training: 1) the use ofknowledgeable and effective teachers, Indonesian or foreign, as “teachers of the teachers” for— 23 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2“training the trainers” in USAID parlance; 2) the preparation of written materials for the trainees
to reinforce their learning; 3) the provision of intensive and in-depth educational opportunities
as well as shorter introductory training. The last guideline was opposed by those who thought
it was only necessary to “train up” people in short courses. It surprised me to find so many
who thought a one or two day workshop could transform someone into a negotiable instruments
expert. One of my arguments for longer programs and not just short-courses was that the
introduction in the USA of Articles 3 and 4 of the Uniform Commercial Code required yearsof educational effort, in the law schools and elsewhere.
You will notice that in the three guidelines that I named, there is no mention of interactive
teaching. There was no requirement that the teaching be interactive, although we strongly
favored it. Interactive teaching, in fact, has been a preferred goal by legal education leaders inIndonesia since the 1970s, but like other countries, it is easier to ask for it than to get it. ELIPS
worked hard in support of interactive teaching, but we also felt we made progress if, for example,
a course on the International Sale of Goods was added to the curriculum, where none had
existed before, even if it was primarily taught by lecturing.
Also notice that while the assumption of the third guideline (the longer the training thebetter) proved generally valid, a study in 1997 indicated that a one or two-day workshop, if
supported by good teaching and appropriate written materials, could bring about morecurriculum reform than expected. The reason was that a newer law school, outside the major
cities, with almost no modern economic law in its curriculum, would add introductory materials
on new courses into the large blocks of hours that were assigned in a general way to commercial
law. In contrast, the more established schools, with more entrenched senior teachers, often
were unwilling to undertake the effort of change.
In addition to the three guidelines, namely, the use of good teachers, written materials fortrainees, and the use of several levels of upgrading, we had two broad goals that help tocharacterize the ELIPS Project’s approach to legal education. The first was that we wanted tomatch the upgrading of people’s knowledge and skills with providing new tools for them touse. By new “tools” I mean new syllabi and new teaching materials for use by the teacher. The
syllabi for Indonesian economic law courses were often non-existent or inadequate.
The second broad goal fits the saying of “killing two birds with one stone.” Thus, if there
was a need for a workshop on “Commercial Paper,” we would insist on presenters who could
prepare papers they were willing to see printed in a “Basic Book” on that subject. This goal ofgetting double value from activities was one of the many contributions to ELIPS by Professor
Mardjono Reksodiputro, a former Dean at the University of Indonesia Law School, andsometime Executive Secretary of the Consortium of Law Schools.

The Need for the Legal Education Programs in Indonesia
The shocking shortage of economic law experts in Indonesia in the early 1990s was wellunderstood by Professor Charles Himawan, the Dean 1986-1992 at the Faculty of Law of the
University of Indonesia (FH-UI), and a major player in establishing the modern economic law
program at FH-UI. He was also influential in lobbying for legal education to be included in
ELIPS’s law reform program. He estimated in 1993 that the FH-UI had at most only 10 faculty
who could be considered relatively knowledgeable in economic law, broadly defined, and thatthe other six “leading law schools” (those offering Masters and Doctoral programs) would, on— 24 —

Legal Education for Developing Countries: A Personal Case Study from Indonesia

the average, each have fewer than five such experts. The situation in the remaining 19 publiclaw schools was even weaker. The some 175 private law schools in 1993 reflected the inadequate
state of the public law schools, since most of their faculty were those moonlighting from thepublic schools.
The shortage of economic law “experts” meant that there were too few people available todo the specialist tasks of initiating law reform, such as drafting the revisions and new laws
needed, or designing and teaching the courses essential to educating the new generation oflawyers who are required for the long-term success of the program, and writing the scholarly
articles that can help to guide the development of the law.
The basic shortage of legal experts in Indonesia was not, however, generally recognized bymost of those who were actually or putatively the experts. They seemed to believe there wereplenty of people available for the crucial tasks. Yet when asked for the names of those who
were up to those jobs, people provided the same short-list of a few names, the “usual suspects.”
It reminded me of a scene from the Beatles’ film “Help” in which a foreign official coming outof his airplane on a tropical isle is obviously impressed by the large number of people in thereception line. He shakes a hand, looks the fellow in the face, and then moves to meet the next
person. But then the camera pulls back and you see there are only a handful of people in theline. The explanation is that after a person has greeted the official, that person runs ahead andrejoins the line, producing an endless line-up of greeters. Likewise, there was a wide-spreaddelusion in Jakarta about the number of economic law experts who were actually available. It
may have been they actually believed there were many experts, for there were certainly a large
number or faculty members and lawyers, both private and government. Or, their viewpoint
may have been similar to an attitude I have seen in every one of the four states in the US where
I have taught. Simply stated, many local lawyers assert that their jurisdiction already has too
many lawyers and discourage law schools from adding any (who just might compete withthem).
Indonesia did indeed have an abundance of law teachers, private and public lawyers, andlaw-trained people serving in the public and private sectors in a variety of roles in jobs withvarying degrees of legal content. But they were not expert in the growing field of economic
law, so ELIPS had many potential targets for its training programs.
Our primary emphasis was on the teachers, especially the younger teachers, in the law
schools. Attention was also given to a more limited number of young lawyers in selected
government offices, and to lawyers generally. The importance of teachers is that they are theones needed to reform legal education and improve the quality of future law graduates. And inpractice, government departments often relied more on law school faculty members than on
their own staff in drafting of new or revised laws.
Before turning to the overseas Masters’ programs, I will briefly outline some of the otherkinds of training that ELIPS made available.
– One to two day workshops in a variety of topics, involving upwards of 2,000 faculty
members, government officials and other professionals;– Month-long, full-time programs for over 125 candidates;– Semester-length (3 to five months) full-time training for over 100 junior faculty or
government officials;– Advanced research work of two to four week in US law libraries for five senior faculty— 25 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

who helped train junior faculty;– Research fellowships in Indonesia for 24 Masters or Doctoral candidates in economic
law subjects;– 40 new model syllabi in economic law subjects– 18 sets of teaching materials;– 12 “Basic Books“ that were not textbooks, but introductions to subjects that emphasized“law in action” as well as the “law on the books;”– assisted with Continuing Legal Education programs every semester at FH-UI;– arranged for two US law professors on sabbatical to be in residence at Indonesia law
schools to share their economic law expertise: one at USU in north Sumatra (for one
semester), and one at UGM in central Java (for two semesters);– core library collections of 200 economic law textbooks for all seven of the “leading law
schools” and 500 additional textbooks for FH-UI;– legislative drafting training, in a wide variety of formats, most usually a two-weekworkshop, under the leadership and methodology of the Professors Ann and RobertSeidman of Boston University, and with major assistance to the FH-UI in the revision ofits basic training course methods. The participants in the training were legislators,
legislative staff, faculty members, and members of NGOs;– distance learning courses involving CD-ROM technology and some synchronous online faculty-student exchange, in conjunction with several of the leading law schools inIndonesia, and with the law schools of the University of San Francisco, the University ofSouthern California, and the University of Wisconsin. The main courses were an
Introduction to US Constitutional Law, International Transactions, and Basic Tax Law.
James L. Agee III, the Chief of Party for ELIPS II 2002-2004, was the principal implementerof the last two noted activities, as well as being involved in other ELIPS programs since ELIPS
began in the early 1990s.

Masters in Law Programs in the USA
Between 1993 and 1997, ELIPS sent 10 candidates for a Masters program (hereafter LL.M,
although specific titles may differ) to law schools in the USA, and nine were successful. From2000 to 2003, we sent 13 candidates to the US who successfully returned to Indonesia with
their degrees. There were 17 more candidates in the US in 2004, aiming to graduate in May/
June, or by September 2004 at the latest. Fifteen did graduate, and two, while remaining ingood academic standing, had not completed all of the required credits when ELIPS ended.
The striking increase in the number of LL.M candidates between the original ELIPS Project
and the current ELIPS II was, for me, a wonderful development. That is because I am one of
the supporters of the view that overseas LL.M training is a crucial step in getting Indonesia
into a self-sustaining orbit in its effort to undertake law reform. But there were detractors andopponents as well as supporters of the LLM program. There is little by way of research tosustain either side. Detractors include those who are sure that they hold an alternative magic
key, such as a pedagogical methodology for designing courses, or a new technology that will
sweep away the problems of the past. They may be envious of the useful prestige of a LL.M asa credential and the networking among the recipients, but neither the formal prestige nor the
network would long survive if the substance of a foreign LL.M were not there.
— 26 —

Legal Education for Developing Countries: A Personal Case Study from Indonesia

Local training can be sufficient to excellent, once it is established, and in many areas thatlevel has been reached in Indonesia. But at a time when there are too few people with theadvanced qualifications to do all of tasks of law reform , including legal education, it is vital tobring up a new cadre to a high level as fast as possible.
Let me give you three of my reasons for thinking the foreign LLM could do this. 1) The
candidates are associated with teachers and fellow students engaged in advanced legal education
on an intense, full-time, and competitive basis, while at the same time largely freed of thetime-consuming obligations of their home institutions and the calls of an extended family. 2)
I saw the LLM program work in Africa in the early days of independence of many countries in1960 and afterwards. I helped in legal education in Sudan, Zambia, and Ethiopia, from 1961 to
1973, often not directly involved with the foreign LLM programs, but I saw the LL.M produce
an overwhelming number of the national legal leaders. 3) But you did not need to look tocountries outside of Indonesia, whether in Africa or SE Asia (and Singapore would jump tomind) to make the case for a foreign LL.M. In Indonesia in 1993, those who already could
undertake with expertise the revision and drafting of economic laws , and the building of thissubject into the university curriculum, were, with few exceptions, those Indonesians who haddone a foreign Masters in Law (and occasionally a doctorate), most of them in Australia, theNetherlands, Great Britain, Japan, and the USA.

Oversees Masters Program under the original ELIPS Project (1993–97)
Whatever the merits of the arguments for and against the overseas Masters program, you
might imagine that given my views, that the LL.M programs would proceed smoothly in theoriginal ELIPS Project. This was not to be. There were two obstacles. First, although there
was money in the contract for overseas training, nothing was tied to a Masters program. There
were plenty of rival claimants, especially those few who already had foreign LL.Ms and wanted
to begin foreign doctorates. Second, a much greater obstacle was that virtually none of theotherwise qualified candidates from the Indonesian law schools had sufficient ability at English
to be admitted to a US law school. This was stunning bad news. I had never met such a weakstandard of English It was not the Indonesians fault, the fault was in the wholly inadequate
system of language training in the government schools. A telling contrast for me was Ethiopia,
which was not a British colony, but it had a high standard of English in the university becauseof the leadership of Emperor Haile Sellassie.
ELIPS tested large numbers of law faculty candidates, often in the hundreds, at the Universityof Indonesia and the six other “leading law schools,” and at some of the other 19 public law
schools. The ones who were qualified were the few who had already done overseas Masters
programs in English. Otherwise, the scene was bleak. At Law Faculty of the University ofNorth Sumatra (FH-USU), for example, we found that out of more than two hundred testtakers only one person had a Toefl score near 550 (213 new scale), still well short of theminimum 580 (237) to 600 (250) required by US law schools, with scores in 640 (273) range
being preferred.
In addition to the language requirement, the person was to be a junior faculty member
whose career was, or increasingly would be, in economic law. A candidate needed the supportof the Dean and key colleagues, as part of assuring later service within the law school, andthere was a final vetting by ELIPS. We found an encouraging number of candidates who, other— 27 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2than the English requirement, met the ELIPS criteria for a LL.M. So the obvious need was tosupport English language training for the otherwise qualified candidates. That need led to thenext shock. The original ELIPS Project contract said that it was “not expected” that funding
would be used for English language training, and USAID’s Project Officer for ELIPS usedthat non-binding indication to make ELIPS support for such training unavailable.
We found indirect ways around that problem, but the main rescue of the Masters program
was by UI Law Dean R.M. Girindro Pringgodigdo (“Dean Bipi”). Elected as Dean in 1993,
and determined that his junior faculty would benefit by the LL.Ms potentially available fromELIPS, he quickly decided to send some 17 of them to a large house he rented in Cisarua, asmall town in the mountain area well away from Jakarta. With an Indonesian language instructor,
they studied English full-time for a semester, with permission to return home only on Sundays.
This episode is worth telling at greater length, but for this paper I will only emphasize that hehad no sure idea of how he would pay the cost, which was about US$26,000. His bravery andrisk paid off, since he found the money for the bill in an evening degree program he introduced,
and the majority of the first ELIPS’ LL.Ms came through his Cisarua program.
Otherwise, ELIPS’ indirect assistance to get around the ban on language training wasprincipally through four or five week summer programs for foreign lawyers in the US thatwere taught in geared-down English, and which had lower Toefl requirements. Some 40
Indonesian junior law faculty and GOI officials went to these programs at the law schools at
the University of California (Davis), the University of Wisconsin, and the Southwest Legal
Foundation. Later, a more elaborate program for 16 candidates was held for five months at a
specially designed program at Harvard Law School.
Eventually we had three faculty candidates from the University of Indonesia who wereclearly strong in their analytical skills and motivation, and who were up to the minimum of
550 (213) required by USAID for long-term training. Since we were convinced the three had
the character and academic ability to get an LLM, we needed to convince one or more US
schools to trust our judgment about the ability of our nominees. In effect, ELIPS asked from a
US law school not one but two favors: 1) to lower the 580 (237) or higher Toefl requirement
for admission down to 550 (213); 2) to provide, in addition to student advisors, a faculty
member who would meet weekly with an ELIPS candidate to make sure the person was on
track. The schools that cooperated were the University of Washington (Seattle), the University
of Florida, and the University of Wisconsin, which took one candidate each. The initial groupof three Indonesians performed from well to sensationally well. American University (D.C.)
and Louisiana State University joined the original three US law schools in welcoming the laterrounds of LLM candidates under the first ELIPS. The achievements of the first three candidates
made it much easier to place later candidates in the US schools, including the original threeschools. But there was also some increased risk, since the first selection was of only threecandidates observed closely over a relatively long period, circumstances that were less favorable
in later selections.
On the original ELIPS Project we had a total of 10 law faculty candidates for the LL.M,
seven women and three men, with an average age in the late 20s. Six were from UI, and one
each from UNPAD (Bandung, West Java), USU (Medan, Sumatra), and UNDIP (Semarang,
Central Java). Nine completed the work for their Masters’ degrees. All but one of the successful
candidates have since moved into the middle-level, or even above, in national legal reform.
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Legal Education for Developing Countries: A Personal Case Study from Indonesia

Overseas Masters Programs under the ELIPS Bridge (2000–2001) and ELIPS II(2002–2004)
The support for the overseas Masters programs under ELIPS took two important steps
forward during 2000–2004. First, the competitively-awarded contract to ELIPS II allowedfinancial support to Indonesian law schools for English language training. Since the level ofEnglish among potential candidates had already improved in many of the law schools from1993 to 2000, the authorization to intensify English training increased the chances of getting
good candidates for the LL.M. Second, and more dramatically, the goal of overseas LL.Ms
was not only explicit in the contract, it was also posited that approximately 30 new LLM
candidates would go to the US. Given that at the time of the contract to ELIPS II there wereabout five new candidates who had adequate Toefl’s scores, the goal was refreshingly optimistic
as well as daunting. We were able to prepare 13 who were in the first batch that began LL.Ms
in the Fall of 2002.
But the number of otherwise qualified candidates who would reach adequate Toefl scoresfor the second group to begin in the Fall 2003 was seriously in doubt until the receipt of theofficial scores in April 2003. We were pleased and relieved that the success allowed the final
selection of 17 candidates. They aimed to complete their degrees by September 2004.
That progress was greatly helped by the various programs that ELIPS II could provide inlanguage as well as law training. Similar to the original ELIPS, some workshops, such as thetwo-week programs in legislative drafting, while mostly in Indonesian also had English
presentations as well. More substantively and directly, a new program was that ELIPS provided
funding for law schools to put selected faculty into established English programs in theirareas, and ELIPS helped to monitor their progress. Some law schools, especially the Universityof Indonesia, used the ELIPS grant to expand programs they were supporting from their own
funds.
Perhaps most importantly, ELIPS II developed three centralized pre-LLM programs thatcombined introductions to the common law with some of the best English language training
available in Indonesia, competitively selected. Both the law component and the language section
provided interactive teaching, exams, and individual assessments based on class performance.
The first program was with the University of San Francisco and the Indonesian-AustralianLanguage Institute for 13 weeks; the second was with Professor Brietzke of Valparaiso
University (and former full-time Legal Advisor to a USAID economic development project inIndonesia) for five weeks; and the third was with the University of San Francisco Law School
and The British Institute (Jakarta) for 10 weeks. The USF’s law portion was a distance learning
course with both an original CD-ROM and synchronous on-line internet feedback between thecandidates and the instructor.
The above summary suppresses the substantial new difficulties we faced during ELIPS II.
I will not dwell on them since there are no clear lessons that might be passed along. The main
message, however, which will not be new to those of you who have managed projects, is that
unexpected threats jump into your face, just like they do in a horror film. So it is better not toholler (too loud or long) but rather to do your best to handle the threat.
The two main jolts were a budget crisis early in 2003, and an escalating difficulty in theattempt to get USA entry visas for the LL.M candidates.
The budget crisis came at the start of 2003, when we were trying to identify 17 new— 29 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

candidates to follow the first 13. It suddenly appeared, for reasons never clear to me, that wewould have funds for only seven more LL.M candidates. Since at that time we were doubtful
about finding even seven candidates who would qualify, an easy response would have been to
accept seven rather than 17 as the goal. I did not do that. Setting aside months of varying
suspense and complicated explanations, the bottom line is that ELIPS II was not limited toseven candidates. I was especially grateful to Professor Erman Radjagukguk, the guiding spiritof ELIPS II from both the UI and his senior post in the government, and to the Leader of the
USAID (Jakarta) Economic Growth Team, Paul Deuster, for their help.
The resolution of the budget crisis did, however, cut away the flexibility that we previously
had in regard to the LL.M funding. In the US, a LL.M takes a minimum of an academic year,that is, nine or ten months, and many people complete it in that time. But some foreign students,
up to 50% of them in many law schools, take more than the nine or ten months. There are atleast two situations, in my view, as to why a longer period than a minimal academic year may
be essential or desirable. 1) Since ELIPS II was still sending some candidates with Toeflscores well under 580 (237), it might be essential to allow a lighter course load and stretch theprogram to at least one calendar year to avoid an undeserved failure. 2) After a semester or twoof studying at a foreign law school, a candidate, in addition to getting settled generally, may
have made a substantial improvement in English, and will have moved up to a higher level ofexpertise in economic law. The more challenging courses are then within the ability of such acandidate. Thus, stretching the LL.M beyond the minimum time can bring dividends far inexcess of the extra time invested.
We had used that flexibility in the original ELIPS and for the first group of 13 candidates
in ELIPS II. But for the remaining 17 the new policy required strict adherence to a goal tograduate within an academic year, that is, nine or ten months. For example, a person with aweak Toefl had to take a full course load which could in theory achieve that goal. Any exceptions
required the approval of USAID, and no exception could go beyond a total of one calendar
year. Monitoring who might be a candidate for an extended stay in the summer was extremely
difficult.
The other new problem for ELIPS II arose from the tightened requirements for a visa toenter the US. This was a result, of course, of the heightened security concerns in the US after
9/11 (2001). This was not a surprise, but our difficulty was caused by a combination of amandatory “waiting period” that kept increasing (up to six months for the last group), the lackof clarity in many rules, and the changing rules. The problem was not the lack of help from theresponsible officials, who were in fact helpful, but primarily because it was all new, with many
glitches. A computerized data base operating out of Washington was one new feature. To give
you some sense of the process, ELIPS took the precaution of asking if the (many) Indonesians
with one name should add a name, since one name is hard to handle on US data forms. The
answer was the candidate’s name must match the person’s passport. Nevertheless, the processing
later came to a long halt when a person listed only one name.
Likely you have read about the legions of applicants who in the past two or more years did
not get a study visa to the US, or got it too late to begin an academic program.
For ELIPS II, the amazing result is that all of our candidates got visas in time for them tobegin their LL.M programs. How we did this is not clear, and I don’t rule out those who
attributed the result to prayer. We tried a great deal, including a variety of end runs, which— 30 —

Legal Education for Developing Countries: A Personal Case Study from Indonesia

worked for the 13 candidates who went to the US in 2002, but not thereafter. The most importantelements in the success were, I think, two. The cooperating schools in the USA were gratifyingly
responsive to our endless requests for flexibility, such as how many candidates we would try
to send, and whether they could take people at times other than those prescribed in theirtimetables. The second element was the untiring and unstopping efforts of the Indonesiansecretaries at ELIPS and the Indonesian staff at the US Embassy who daily fed data into thecomputer until we got what we needed.
The first group of 13 Masters candidates who began in 2002 and who all returned
successfully in 2003 had eight men and five women, average age in the early 30s, 10 of themfrom five law school faculties, and three from government ministries. The cooperating law
schools in the US were the University of Washington (Seattle), the University of San Francisco,
American University (DC), and the University of Wisconsin. In addition, ELIPS provided
support for a faculty member who won a Fulbright Scholarship, in order to cover the difference
between the Fulbright and the actual current costs. He also returned successfully in 2003.
Under ELIPS II, the new Dean of the leading public law school (at the University of Airlanga)in Surabaya, Indonesia’s second largest city, did not allow his young faculty to go on ELIPS
foreign programs. Fortunately, one of the private law schools that had developed a strong
reputation was at the University of Surabaya, which enthusiastically and effectively coordinatedwith ELIPS II.
The group of 17 who aimed to complete studying in the US in 2004 had 10 men and seven
women, average age about 29, 12 of them from four law schools, and five representing four
government institutions. The cooperating US law schools were the University of Washington(Seattle), American University (DC), and the University of Wisconsin. Fifteen of the candidates
succeeded by June or by the end of the summer 2004. The two who did not were short ofacademic credits that they may complete later on funds other than those of USAID.
USAID is in 2005 undertaking support of education in elementary schools in Indonesia,
and I am not in a position to predict the long-term value of this, in part because the level of
support is unsettled. But I do feel confident about the future of the 40 LLM candidates fromthe ELIPS Project in the past decade. Overall, they will be in the vanguard, along with theexisting legal experts, of the law reform movement in Indonesia, if it is allowed to proceed.
With them will be the Masters graduates of the programs in Australia, the Netherlands, Japan,
England, Germany, and elsewhere. Of course, not every candidate will be a leader. We havealready seen one of our promising graduates drift out of sight and out of Indonesia, one or two
are not living up to their potential, and, tragically, one died young of cancer. My prediction for
the LL.Ms is the kind of prediction that one can make for a team, not for any particular individual,
and I feel optimistic about betting on this team.

— 31 —

Developing legal education in Vietnam
Lars-Göran Malmberg
Introduction
This article is written as a narrative part of the presentation I delivered in the seminar in
Nagoya University CALE in October 2004.The focus of the session was to clarify the desired
legal education for developing countries. Currently developed countries accept many students
from developing countries and offer legal education and further more embark on different
activities supported by state aid organizations or financing institutions like the World Bank or
Asia Development Bank. The question that this article will discuss is whether it is clear to the
supporting universities what sort of lawyer is most effective and most needed in developing
countries? In this context I will elaborate on the legal education the Lund University currently
offer and the program that the Law Faculty is supporting the Law Universities in Vietnam. An
interesting point would be to examine the strategy in developing a legal education in Vietnam.
This could be described as a clarification of “the theory of legal education” and an identification
what sort of assumptions we have as to the “effective lawyer” in developing countries.
The following is based on the experience of and lessons learnt by the Swedish partners the
Law Faculty Lund University in the Swedish Sida1 funded project “Strengthening Legal
Education in Vietnam”.

The Project
Developing legal education in Vietnam
Introduction
Around 1992 the Swedish government became more and more interested in the relation
between legal developments and strives for poverty reduction and governmental reforms. As
one of the cornerstones in developing a governmental structure to establish a rule of law concept
in countries like Vietnam and Laos, and later on in some African countries, the Swedish
government started to realize that legal education has to be reformed to facilitate the future
development of the countries in this direction. The Vietnamese government was already fromthe beginning ready to embark on this idea and requested support from Sweden to develop the
Law University in Hanoi. It should be noted that Hanoi Law University had been supported inearlier projects funded among others by the ADB and that there was good international
connections in the university already at the start of the Swedish funded project.
When the request came to the Swedish government on supporting Hanoi Law University
the first task was to find the Swedish partners to a project like this. From this point it should be
noted that none of the Swedish universities with law faculties had any prior experience of
1 Sida is the abbreviation of Swedish International Development Agency Cooperation— 33 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2academic development projects in the “third world”.2 The second task was to define the durationof such a project. To the universities such projects has to be put on top of the other tasks set by
the government to be carried out, education and training of lawyers in Sweden and legal research.
A development project like this would also compete with other interesting tasks our colleagues
like to take on as legal consultations outside of the university. From these points it was noteasy to strike a balance between the planned project activities and the capacity of the proposed
Swedish partner university.
This early planning stage of the project, “Strengthening Legal Education in Vietnam” started
already in 1994 but it took until 1998 to the inauguration of the project. The Law Faculty Lund
University was after years of discussion between Vietnamese Universities and the Swedish
agency selected as the Swedish partner. In the discussions between the Vietnamese side andthe Swedish it also became clear that both the Hanoi Law University and the Law Universityof Ho Chi Minh City, at that time the Law College of Ho Chi Minh City, would be the Vietnamese
beneficiaries of the project.
Structure of the ProjectIn the early discussion between the Sida and Lund University it became clear that thisproject was to be a long-term project. Sida foresaw the need of a strategy that would take timeand it should be given time to create sustainability. The Project was to be carried out overdifferent phases and each phase would last for approximately three and a half year. Each phasewould be given a specific budget frame and an plan of operations, to be approved by both Sida
and the MPI3 in Vietnam, had to be established prior the start of each phase. In the early days
the Swedish partner was referred to as the consultant.
The phases of the project has so far been two and the third is about to begin in 2005. The
first phase begun in 1998 and ended after three six months prolongations in July 2001. The
second phase was opened in September 2001 and will last until the 28th of February 2005. The
projected and soon to be approved third phase will according to the plan last until July 2009.
The partners to the project aim for an additional phase of two and a half year until 2011 tophase out the project. Since the start of the project in 1998 the phases has gradually been
extended so that the first was originally planned to last for three years, but after prolongation
it lasted three and a half. The third phase is planned to last for four and a half year. As thephases grows so does the budget. This was for the first phase limited to 1.4 million US dollar
and in the second phase it had grown to 3.2 million US dollar. In the third phase the budget isalmost 10 millions US dollar. Of course the content of the plan of operations has also beendeveloped, but at this time it could be said that the planned operations finally are in harmony
with the budget.
To the structure of the project should be added that it is headed by a Steering Committee in
Lund and by a Board of Directors in Vietnam. During the second phase a Swedish resident
coordinator to the project has been posted in Vietnam and an extended organization for
coordination is to be formed to meet the needs in the third phase. In Vietnam there are two
2 The Umeå University had been supporting Ministry of Justice in Vietnam since a number of years but this ishardly an academic development project.
3 Ministry of Planning and Investment— 34 —

Developing legal education in Vietnam

project offices, one at each of the universities and with the major office in Hanoi.
The three universities are all a bit different from each other. Hanoi Law University was
opened in 1979 and has today a staff of about 500 members: teachers, librarians and faculty
administrative members. The Law University of Ho Chi Minh City established around 1995
has a staff of 200+. The yearly intake of students at the two Vietnamese Universities is at alevel of 900–1.500 freshmen. The gender situation in the lecture force is divided 50/50 in bothHanoi and Ho Chi Minh City. The management teams are mainly male dominated. The Law
Faculty Lund University is one of the original four faculties at the University funded in 1666.
Today the Faculty has around 2.000 students and approximately 30 students on legal research
to become doctor. The staff is about 100 persons and the academic staff is about 35 professors
and lecturers.
The Project:
When it was started in 1998 the Ministry of Justice formulated an overall objective. This
was later amended a is today
To achieve an accomplished curriculum development and teaching methodology
for bachelor, master and doctor degrees, which fit the principles of a state basedon rule of law and the needs of the “Doi Moi” policy, strengthening legal
education capability by improving gender equal lecturers qualification,
strengthening libraries information system and widening international
cooperation.
This gives an overall view of what the project aims at lecturers, library and international
cooperation. This overall objective is divided into three sub-objectives that are;
1. To develop gender equal lecture force, applying modern teaching methods based onmodern literature and a modern curriculum
2. To developing law libraries to modern standard and define their role in modern legal
teaching
3. To enhance legal education and project management and widening international
cooperation
Over the years those three sub-objectives have been the same but the content has beendeveloped over the years and especially the development of teaching methodologies and thelibraries has been very successful.
The activities and aims under the three different sub-objectives could easily be describedsince the focus is very clear. The main components in teachers training is based on capacity
building by introducing (1) modern teaching methodology, (2) enhanced English training and(3) subject orientated seminars. The first phase saw a limited number of activities, since thebudget also was rather limited, such as a couple of workshops and a twice yearly teaching
methodology training in Lund over a three week period for a limited number of teachers.
Since the start of the project two junior teachers one from each of the two universities haveparticipated in a one-year master course in Lund. During the second phase the funds wereincreased and more activities was to be carried out. Among them the most ambitious was an
introduction of a joint master training program in International and Comparative Law and afirst doctorate candidate was selected to take his courses in Lund.
Concerning the second of the three cornerstones, library development, the main activity— 35 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

has been to train the librarians. As one of the most important factors for the development theBoard of Directors approved a strategic plan for the future of the libraries. This plan concernedmore than just book procurement to specific legal areas, it also set the strategy for developing
the librarian staff and how to equip the libraries with computer based search motors and accessto international legal databases like Westlaw, HeinOnline and the Swedish ELIN.
The third element in the project is management support and widening international
cooperation and the first real activity carried out was the development of the LL.B curricula.
This started by an extensive survey on different curricula in universities all over the world. It
was completed and supplemented by an international conference in September 2002 which
resulted in a new curricula developed by Hanoi Law University and the Law University in Ho
Chi Minh City. The second main activity has been to widening international cooperation anda number of study tours have been conducted both within Europe and Asia and to the American
Continent. As a result we have made a lot of useful contacts that has participated in different
activities over the years.
The three cornerstones of the project proved to be the perfect choice already from the
beginning and all the planning that preceded the inauguration of the project in 1998 was worth
all efforts and of course the waiting time to let it start. The first phase of the project until 2001
has been describe as a “trying-out-phase” when the partners got the time to learn to know eachother and the steering of the project got the necessary time to develop. Most other projects inthis field would have been terminated after a four-year period but this was to be given anotherphase for three and a half year and then a further for four and a half year. The second phase,
which now has come to an end, has proved to be successful in the way that more or less all
targets for the development of legal teaching has been defined and the training institutions thatwill carry out different types of training has been found. The third phase will see the effective
development of the two Vietnamese universities to meet the same standards as in other modern
universities in the region such as you find it in Singapore, Malaysia and Thailand.
The Outcome of the Project – Training a Lecture Force and Modernize the Legal Training
What kind of lawyers does Vietnam need for the future?
Some introductory notes
First of all, this is Vietnam: The area of the country is 329.560 sq Km, the population isalmost 80 million people, the country comprises of 61 provinces. There are two major laws
teaching institutions designated Law Universities; Hanoi Law University and the Law Universityof Ho Chi Minh City, added to these two major there are four Faculties of Law, at the Universities
of Can Tho, Dalat, and Hue and in the National University in Hanoi. There is at the moment
approximately 11.000 law students in Vietnam. This could be compared to Sweden with anarea of 449.964 sq km, a population of about 9 million people and 22 provinces. Legal education
is carried out at six different faculties of law and the number of students is about 11.000. With
about one tenth of the Vietnamese population Sweden has the same number of law students inthe education process per year.
The Governmental Order No.10/CT-TTg from 2002 puts more stress to further enhancequality rising activities concerning both the LL.B. and the LL.M. training as well as theDoctorate training. The education strategy of Vietnam puts the goal to reach the ratio of 24 BA
graduates per 1000 persons. At the present time, ratio of bachelors of law per 1000 persons is— 36 —

Developing legal education in Vietnam

6/1000. This ration is very low compared to other countries in the region. That is why legal
training is seen as one of most important tasks in the education strategy of Vietnam at thepresent time.
The needs for lawyers are great in the whole of Vietnam. In one of the poorest provinces inthe south of Vietnam there are 202 legal officers at provincial level, out of which 120 has an
LL.B exam, 2 has a LL.B, 32 has a university degree other than law and 17 has just a college
degree. At the district level there are 440 legal officers; out of which 189 has a LL.B degree, 0
LL.M, 39 has a university degree other than law and 29 has just a college degree. At thecommune level there are 181 legal officers with a LL.B status 0, College level 42, degree froma university other than law 0 and 141 passed different short professional training courses. The
yearly demand in this province is about 70 new lawyers on provincial level only, not to mention
what is needed on district and commune level. It could be estimated that a number of provinces
throughout of Vietnam has more or less the same demand.
To the Vietnamese partners of the project it has become more and more important to define
the development process of curriculum that serves the needs of the education of the future
Vietnamese lawyers. The project has further on to support every such strive towards a curriculumthat will serve the purpose of the development of a state based on rule of law. In the new
curriculum one of the most important changes are the introduction of comparative law assubject. Also the international aspect of law has been increased. But this is not really enough.
A major part that lacks and is of vital interest in the development of a rule-of-law based
country is legal training in the protection of human rights. Presently no such courses are available
even though there is no lacking of written material in the libraries on the subject. Newly
educated lawyers should therefore in the future have a LL.B degree with a solid understandingof the concept of rule of law and a good understanding of “Good Governance” in administrativelaw. The third criterion to meet is an ability to critically analyze legal texts and court cases.
The problem is; how do we get there? The problems starts with the teachers approach toteaching, continues with the status of the present textbooks, further on to the design of thelecture halls and ends with lacking resources in the library. The students could be said to be a
problem of its own in the sense of a background in a school system that does not foster acritical mind and with the lack of school material haven’t really improved in critical reading.
In other words: There are a lot of things to turn around.
Solutions to the problem
The strategy to move the education towards a modernization and the target area of rule-oflaw influenced teaching was taken after continuing discussion among the partners of the project.
Those discussions are taken each annual meeting and among the Vietnamese Board of Directors
and the coordinator of the project. The first target group that was identified was the teachers.
It became clear at an early stage that teaching methods used was hardly up-to-date and thematerial used was also outdated and lacking in volume. The library was also in such a statethat it was of limited use in modern teaching where the demand on data based searching ofmaterial form the cornerstones in esp. problem based learning. The factors that catered for alimited success in the education could be described as follows:
1. Most teachers are bound to use simple teaching methods like ordinary lecturing.
2. Most teachers have to relay on limited information sources— 37 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

3. Most teachers are not subjected to training in teaching methodology
4. Most teachers does not have access to a well equipped libraryThis has as an effect that the students have never been subjected to any other methods ofteaching than what is called the simple form of lecturing, namely the transfer theory. This iswhen the teacher more or less is transferring his knowledge to the students. Another back draw
is the low level of English knowledge that the students possess which limits their possibilities
to use English material and the legal databases that will be put to their use.
The second problem to tackle is the size of the classes and the design of the lecture halls.
Lecture halls are in general of the size of two hundred students and the shape of a giant shoebox.
To the students in the rear the activity in the front is just a rumor. It is virtually impossible tosee what’s on the black or white board in the front end of the lecture halls and most teachers
are by those means just using the microphone and loudspeakers to distribute their knowledge.
A look into the lecture halls with two hundred students could was at the start of the project a
depressing sight. With the lack of communication between teacher and students most students
in the rear of the lecture hall is asleep or doing other things than paying attention. But it should
be noted that this is really not any big difference to legal teaching in Sweden some 25 years
ago. With all due respect, under circumstances like this providing active learning is a difficult
task. After two phases of the project this is already about to change.
There are unfortunately no easy solutions to this. The key issue in such a project as ours is
to have patience and to be able to convince the donors that this will take time. In our case thiswas understood by the donor organization already from the beginning. The other key issue isto remind yourself that this has to take time and to be able to see the small changes as important
steps forward. Secondly the partners to the project have to agree on a common platform tooperate this change of teaching structure. Which in terms means that the partners walk in thesame direction, if not necessary at the same pace but with the same road map.
In the project we have trained the professors and lecturers new way of lecturing in bigclasses, we have been giving them new ideas about how to move from the idea of lecturing tolearning and we have more and more been introducing cases as a mean of analytic discussions.
In the third phase of the project the partners4 have decided on more activities to create
sustainable structures for a continuing development of curricula, teaching methodology andforms of examination. We are providing more courses on intermediate English and advanced
English for teachers. The project is further to set up more computers for students to accesslegal databases and encourage teachers to use foreign material in their teaching. To achieve ananalytic and critical we will introduce more case material to the students and teachers in theform of a casebook series. To train teachers in using cases seminars with American and Swedish
professors have been held and this will be continuing in the future parts of the project.
Some final words
There are a number of things that has to be done for the future to create a modern teachingenvironment using a modern way of teaching. The perhaps most important item to stress for
4 We are no longer considering us as consultant and beneficiaries but partners. The process in the project hasdeveloped a twinning effect in the group and consultant activities have been altered to discussions amongscholars.

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Developing legal education in Vietnam

the future is to introduce an analytical way of lecturing which means that the teachers turnaway from the old fashion way of lecturing to establish a learning process among the students.
To be able to convert to learning mode the teaching has to integrate with the library and thepossibilities to find information in the library. This in turns mean that the idea of a library has
to be changed from a simple book provider to an information centre. This is normally visible
through the different course curricula were some of the assignments are carried out incooperation with the library.
It is our firm believes that from now on there will be a rather fast change in the teaching
methodology on both bachelor and master level in the universities in Vietnam. Our long time
participation has and will go on to support this development. But the most important part is
not just a rapid change of things, it is the continuing work on curricula development, teaching
methodology and examination development through assessments. To make sure that there will
be sustainability in this area an academic quality assurance center (AQAC) will be establishedin the both universities. This is the most demanding object from the projects point of view andthis calls for a strong support from the two universities Board of Directors. These centers willin the future decide on pedagogical courses, curricula development and make course assessments
to change examination processes and teaching methodology. With the support from these AQAC
a new generation of teachers will form a new generation of students. Prepared to carry the taskof the lawyers to fulfill the goal of a socialist state built on the foundation of rule of law.

— 39 —

Law and Legal Assistance in Uzbekistan1
Katsuya Ichihashi
Introduction
I worked as a short-term Japan International Cooperation Agency (JICA) expert in thefield of legal assistance to the Tashkent State Institute of Law in Tashkent, Uzbekistan forseven months from March to early October 2002.
My main task was to conceptualize the amendment of the Civil Code and enactment of aCommercial Code in the Republic of Uzbekistan, both of which are important subjects ofongoing legal reform in Uzbekistan. Meanwhile, I also translated into Russian the Japanese
Civil and Commercial Codes which will likely be used as reference during the process.
In this paper, based on my former experiences with JICA, I am going to raise some issues
which deserve attention while conducting legal reform or legal assistance projects.

1. What is Uzbek Law?
In order to assist Uzbekistan in its legal reform, one must learn first of all about the targetof the reforms, Uzbek law. When asking what Uzbek law is, one needs first to clarify which
law the question is actually directed to. As an answer to this question, I was told that one
should base his/her knowledge of Uzbek law on two main features.
First, Uzbekistan was part of the former Soviet Union. Even though changes have takenplace as a result of its independence and marketization, Uzbek law is basically considered
Soviet law. The second line of thinking suggests that since Uzbekistan is a country made up ofa majority of Uzbeks, who are primarily Muslim, Uzbek law is Islamic (Shariat) in nature.
Although one can claim that these two ways of understanding Uzbek law result in different
interpretation of its contents, both of them are based on what can be called a “common sense”
view approach. Both of them are half “truths”. However, it will be a mistake if either view is
employed exclusively on its own premises when approaching Uzbek law. For the people ofUzbekistan, especially the majority Uzbek ethnic group, this way of approaching Uzbek law
would not be considered as based on “common sense” (Saidov 1999: p.438).

(1) Parallel Existence of Statutory and Traditional Laws – Legal Pluralism
Let’s now look into the first “common sense” view that Uzbek law is Soviet law. Uzbekistan
was under Soviet rule for 70 years until it became independent just over ten years ago. If we
include the time when this country was under the rule of the Russian Empire, we see that it
was a part of Russia and the Soviet Union for a total period of 150 years. In this region, known
1 This paper is translated from the Japanese by Teilee Kuong (Associate Professor, Center for Asian Legal

Exchange), with the assistance of Matthew Linley (Researcher, Center for Asian Legal Exchange)— 41 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2by the Russians as “Turkistan”, a history in which countries and empires develop, flourish andare destroyed continuously repeats itself. The one-and-a-half century of Russian and Soviet
rule is the longest of such episode in the history of Turkistan. Therefore, from the perspectiveof law – including basic and other statutory laws, the judicial system to operate these laws andthe legal consciousness of legal professionals – the country is obviously heavily influenced by
the Soviet and post-Soviet Russian laws (Saidov 1999: pp.449–454).
However, to understand the law of Uzbekistan only at the level of Soviet laws as the statutory
laws of a nation state is one-sided.
L. Levitan, a constitutional lawyer from Kyrgyzstan, has said that the people of Uzbekistan
conduct their life not only based on norms set by the former Soviet Union, but also norms
formed throughout the long history of many centuries. According to Z. Kh. Arifkhanova, an
ethnologist in Uzbekistan, the former Soviet system sought to implement a concentrated policy
towards dismantling traditional systems. However, the local communities (sosedskaja
obshchina; makhallja) showed their firmness and prevented alienation of the traditional norms.
The Soviet regime had to consider the interests of these local communities so as to hold themunder control. The regime used these communities for its own interests (Arifkhanova 1998:p.25). This is the other aspect which one should not neglect when trying to understand the lawof Uzbekistan (Brusina 2000: pp.148–149).
For example, let’s look at the citizen’s general assembly (skhod grazhdan), its chair (aksakal)
and the makhallja committee (kengashi) of the local community/makhallja 2 . These
organizations hold the authority to approve urbanization plans, sales and purchases of houses,
development and construction activities. They can also reject or prevent the establishment ofplaces which are not approved by the local people (such as the establishment of nightclubs, forinstance). In addition, the conciliation committee of makhallja handles almost all local casesof conciliation related to family disputes such as divorce or succession, and other disputes
among residents of the local community. It seeks to settle disputes by means of compromise
before they are brought to the court. These regulatory and dispute settlement functions ofmakhallja are not based on written family or civil codes. Conduct is not based on the law of
the State but on local traditional law known as shariat or adat. Any party dissatisfied by or
unwilling to accept the regulatory or dispute settlement work of the makhallja may seek
adjudication at the court according to the statutory law of the State. However, the reality is thatthe number of such adjudication cases is very small (Tashkentskii gosudarstvennyi luridicheskii
institute 2003: Chast’2 Interv’iuirovanie Predsedatelia I predstavitelei makhalli po
opredelennym napravleniiam).
On the one hand, Uzbek society maintains a system of State law formulated under strong
Soviet influence and a parallel system of unwritten traditional law called shariat or adat on theother. The traditional system co-exists with the statutory law and continues to play a practical and,in fact, more important role (Dzhabbarov 1996: pp.49–65). In this context, a phenomenon of socalled “legal pluralism” (puravovoj pururalizm) or “acceptation” or “convergence” (retseptsija/
konvergentsija) between the systems has emerged (Bobrovnikov, V.O. 2002: pp.98–110).
2 This acquired an official local entity status after independence and the trend is that the former autonomous

organizations of local residents or makhallja are now changed to administrative entities (Sievers 2002:
pp.118–123).

— 42 —

Law and Legal Assistance in Uzbekistan(2) Secular Islamist Law
In Uzbekistan, in the conditions of “legal pluralism”, traditional law, which includes Shariat
and Adat, is still practically operational in many parts of the country. However, can we classify
the Shariat and Adat of this society as “Islamic Law” following the second category of the“common sense” view?
After the collapse of the Soviet Union, we can see the development of what has been called
an “Islamic Boom” in newly independent states of the Islamic regions of the former Soviet
Union (Bobrovnikov 2002: p.264). In countries like Uzbekistan, the nationalist authority adopted
policies of “reviving and strengthening Shariat and Adat” and “strengthening makhallja”(brushina 2000b: pp.72–73). Further, for Muslims in this region, economic hardships
accompanying the transition to a market economy have become very serious, and the numberof people who are convinced that “only Shariat and Adat can suppress the increase in crimeand social instability” is on the increase (Tsipko 1997).
However, the Russian Legal Ethnologist V.O. Bobrovnikov correctly points out thefollowing:“In the second half of the 19th Century, and especially in the 20th Century, due to themassive movements of people and the resulting changes, the customary law and the otherelements of pluralistic legal conditions suffered irreversible changes. ‘The revival of Islamic
Law and Adat’ means formation of an absolutely new post-Soviet tradition in the region”(Bobrovnikov 2002: p.107).
This revival and strengthening of traditional law is not retrogression to the Islamic law
which once existed in the society. Although the law can be called traditional due to its deeprooted existence in Uzbek national history, it is better to look into it as an attempt to form a
new and indigenous informal legal system for the contemporary Uzbek people.
Namely, in order to understand the Shariat and Adat of Uzbekistan, we cannot overlook
the secularization (seklijarizatsija) of Shariat and Adat as a result of the massive changes that
occurred in the Soviet era. In the case of Uzbekistan, the neighbourhood communities ruledby the traditional law of Shariat and Adat are no longer communities (mechetnaja obshchina)
centering on the institution of the mosque. While in the past, the mosque was the essential
center of the community, it has been replaced by the secularized tea drinking places known aschajkhana. Further, regarding the person administering traditional law, now, it is not the imam
(Muslim religious leader), nor is it the kadi (Islamic judge). It is the elder (starejshina) of theneighborhood community, including the person known as the aksakal, who administers the
traditional law.
Revival of the traditional legal system in Uzbekistan is based on the Uzbek comparative
law specialist A Kh. Saidov’s “secular islamism” motif (Saidov 1995: p.43). We must note thedistinction between a revival of Islamic law and the so-called “traditional system” in which
fundamentalist Wahabbism refers to the reinstatement of Islamic courts (shariatskij sud),religious police (politsija nravov), and a theocratic Islamic state (Bobrovnikov 2002: p.266).

(3) What is Uzbek Law?
As we can see up to this point, Uzbek law thus goes beyond our “common sense” or“comprehension”, and should not be considered as merely Soviet law or Islamic law.
When we view the history of Uzbek law, we see that the peculiar conditions of “legal— 43 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2pluralism” have existed for a long period.
First, when Islam was introduced, the Adat of the various ethnic groups living in Turkistan
accepted Shariat and the two co-existed, resulting in Islamization (Geiss 2001: pp.100–103).
Next, with the creation of the Soviet Union, Adat and Shariat survived the acceptation ofSoviet law and secularization. The accepted Soviet law acknowledged the existence of, andcoexisted with, the traditional law and was therefore able to remain functional in this region.
Currently, we are witnessing the beginning of the third wave of formation and acceptationof law.
These days, a new “legal pluralism” is making an appearance. First, the secularized Adat
and Shariat that we saw in the Soviet era are retaining their secularized characteristics andbeginning to develop into the current informal legal system. Second, for the development of aframework to secure the establishment of a market economy, at the level of statutory law, thelegal system built on the former Soviet law is now beginning to accept the European andAnglo-American legal systems (Saidov 1999: p.473).
In the future, how will these newly introduced European and Anglo-American legal systems
react to a diversified legal system of Shariat, Adat and Soviet law, etc, which have coexisted inmutual interactions, influences and acceptation throughout the history of the region? Are they
intended to be another new legal system derived from the European and Anglo-American law,
to coexist with the other systems in the existing “legal pluralism”? Or, are they unwilling totolerate and instead abolish the state of legal pluralism existing so far, just to lead the country
towards formation of a unified legal system based on the European and Anglo-American law
model? A long journey of legal reforms has just begun, but its direction is yet to be decided.

2. Statutory “Legal Failure” and the Rule of Informal Laws
Currently, in Uzbekistan, legal reforms are occurring in a new condition of legal pluralism
in which the informal legal system of the secularized Adat and Shariat traditional law developed
and, at the level of statutory law, the European and Anglo-American legal systems are being
accepted.
The statutory law system based on Soviet law, the traditional legal system, and the newWestern legal system will surely influence, accept and coexist with one another. However, thisdoes not mean a non-contradictory harmonious “intricacy”. If we want to promote a stableprocess of legal reforms in Uzbekistan, in which the different legal systems grasp with theirrespective major problems while remaining strongly and closely intertwined, we must pursue
a gradually progressive path towards legal reforms in the long run, aiming at “symbiosis” ofthese systems while remaining alert to its “pathology”.

(1) Trust in Informal Law and Distrust of the State Law – Legal Nihilism
As already point out, in Uzbekistan where most daily disputes among local residents aresettled by resorting to traditional law, the main areas of social life are not regulated by statutory
laws of the State but practically by the traditional or informal law. In this sense, informal laws
are becoming strong “social norms”, faithfully reflecting the public interests and belief devoted
to by makhallja or local communities (North 1990: p.36). It is therefore discernible that local
residents being members of the community respect and put their faith in the informal law— 44 —

Law and Legal Assistance in Uzbekistan(Sievers 2003: pp.109–115).
This does not merely indicate that the informal law dominates or rules. It is also said that
because people consider that statutory laws enacted by the State do not identify public interests,
they have no faith in and do not respect these laws (Galligan 2003: p.6). Legal experts in
Uzbekistan call this the pathological “legal nihilism” (pravovoj nigilizm) phenomenon.
This is becoming excessive in Uzbekistan. People feel alienated by and unfamiliar withstatutory laws of the State as a barely acceptable imposition. Resistance and opposition to
statutory laws are a frequent occurrence. Although ordinary people cannot ignore the existenceof statutory laws, they do what they can to get away from it, to respond to it by means ofevasion or to cheat their way out of the influence of these laws. Further, statutory laws are also
used arbitrarily for the sake of private interests. They are considered a “tool” for private interests,
utilized as a bargaining chip in pursuit of a favorable deal (Galligan 2003: pp.7-8). Unfortunately,
this is the typical behavioral pattern of a great number of civil servants who are given power
and authority under the provisions of statutory laws.

(2) Pathological Informal Law Resulting from “Legal Nihilism”
In Uzbek society, “legal nihilism” has become a hotbed of pathological informal law different
from the traditional one.
From the legal consciousness of “legal nihilists”, informal law is created as a kind of social
norm to regulate the network of informal distribution and acquisition of “wealth”, namely
personality (qualifications and status), goods, money, service and information, etc. Since suchinformal law becomes a guide for people’s daily life, it constitutes a kind of “social norm”.
However, it is not like makhallja or other traditional law which mainly reflects the public
interests of the local community. Rather, it does just the opposite, perhaps by distorting the
public interest.
By exploiting people’s strong tendency towards “legal nihilism”, those (the hitherto groupof civil servants) who are in a position to manage distribution and acquisition of wealth create“social norms” for “wealth” management in their own interests, through a common “social
practice” among themselves. One typical case of pathological informal law is represented by
the “social norms” in regulation of the universal and structural “corruption network” inUzbekistan. At any level of the bureaucracy, one can find some kind of “bribery” demanded bycivil servants whenever and wherever any “wealth” distribution takes place.
Without mentioning the case of pathological informal laws, public administration in general
is not receptive to influence by any statutory law beyond the field. Its relationship with statutory
laws of other fields may in some cases be competitive. Public administration embraces a wide
range of closed self-regulatory administrative norms and operates on that basis (free discretion)(Galligan 2001: pp.88–89). Just like any ordinary individuals, administrative institutions andpublic servants certainly cannot ignore statutory laws. They take into consideration the existenceof these laws. However, this does not lead to “administration in compliance with law”. Due toits characteristic of being “closed administration”, it mostly ends up in a situation of“administration in management of law” which allows laws to be distorted by means of informal
administrative norms that fulfill only selected legal requirements and seek to redefine them(Galligan 2001: pp.92–93). Therefore, one must take heed of the existence of a closed
administrative world which is governed by informal administrative norms and encourages the— 45 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2growth of “legal nihilism”, in parallel with local communities which are ruled by non-state
informal laws called the traditional law (Galligan, polianskii, starilov 2002: pp.54–55). This isalso the issues of inconsistency and formalism which F. W. Riggs mentions in his “Prism
Theory” arguing that “(A) dministrators called upon to carry out the law then resort to literalism,
sometimes to deliberate nullification. This is advantageous to the legal adepts and thebureaucrats, for they can fabricate interpretations which permit them to do what they wish or
what their clients and protégés find profitable” (Riggs 1964: pp.183).

(3) “The Pathological Triangle” and the Vicious Circle
The pathological informal law as “social norms” is also making statutory law pathological.
At places where “legal nihilism” and the resulting pathological informal law rules, neither
the citizens nor the civil servants would give legitimacy to the statutory law, nor would they
respect it and handle it seriously, even if the statutory law existed with appropriate objectives
and contents, and an implementation system were already established. At the end of the day,no matter how healthy the statutory law or its general framework can be in form and in substance,
it still suffers the influence of informal law born out of “legal nihilism”. There are many casesof statutory law heading towards failure as a result of this.
Statutory law has to compete with the conflicting informal law and finally loses in the
struggle. It fails in its attempt to regulate social relations and to settle disputes emerged
thereupon. In other words, statutory law malfunctions in what is known as “legal failure”(Galligan 2003: pp. 2–5). Following the malfunction of statutory law, “legal nihilism” becomeseven stronger among the citizens and the civil servants. This results in further development of
the pathological informal law of which “legal nihilism” works to replace the statutory law. In
this way, “legal nihilism”, pathological informal law and the malfunctioning statutory law
together form a “pathological triangle”. A vicious circle emerges.

(4) The Way to “Rule of Law” and “Overlapping Challenges”
When considering legal reforms in countries where a strong “pathological triangle” andthe vicious circle exist, one must do something to sever this triangle, overcome “legal nihilism”,
dispose of the pathological informal law, make statutory law functional and realize the “ruleof law”. One must identify the necessary conditions for statutory law to run parallel withtraditional and other healthy informal law, as “social norms” acceptable to the society.
Legal reform has to progress towards realization of the “rule of law”, after changes havebeen introduced to reverse the rule of pathological informal law and the statutory law becomeswell accepted. In order for this to happen, the precondition is to have a system that enables themaking and functioning of statutory laws which incorporate appropriate objectives, contents
and due process, reflecting the interests of the public (Hendley 2001).
However, as already mentioned earlier, another indispensable precondition for statutory
laws to function is to ensure that those who were influenced by and who observed thepathological informal law, by utilizing it and being under its rule, will opt for changes and turnthemselves into people who respect and accept the rule of statutory laws (Hendley 2002: p.
137, pp. 144–145). Therefore, if legal assistance activities, offered in building up a system tomake and to promote the functioning of statutory law, and in training of human resources tohandle and to facilitate acceptance of the statutory law, are intended for severing the— 46 —

Law and Legal Assistance in Uzbekistan“pathological triangle” and give rise to the “rule of law”, we are then facing “overlapping
challenges” in legal reform which requires that these two activities be handled in parallel.
In the “overlapping challenges”, we need to deal with not only “system building” but also
“human development” which will surely take a long time. However, after some progress has
been made, we will see that the citizens and civil servants will acknowledge and have confidence
in some, if not all, of the statutory laws as “social norms” to follow, and they will take theselaws more seriously. Once the citizens and civil servants start the step by step process of
assimilating and internalizing the statutory law, the society will be moving towards “acceptationof statutory law” in its genuine sense (Galligan 2001: pp. 95–96).

(5) Making of an Appropriate “Life-sized Statutory Law”
(zakon v natural’nuju velichinu)
Unfortunately, if we look at the present situation of law in Uzbekistan, we find that it is yet
to reach this step of “acceptation of statutory law”. If the direction is already aimed at futurecompletion of that step, the current situation may be referred to as a long “transitional period”
towards acceptation of the statutory law. In this transitional period, we must also start legal
assistance activities and the training of legal professionals by preparing the appropriate
conditions which take into consideration the special feature of this “transitional period”.
First, in making statutory law, for instance, if European and Anglo-American statutory
law, with its developed content and structural framework, has been imported as a tool for
realization of radical social objectives, no matter how excellent the superficial “transplant” is,the new statutory law will be caught in the “pathological triangle”. It will not be able to functionin the triangle, but treated as “irrelevant” and will therefore become dysfunctional (Hendley
1996: pp. 239–240). If one takes into consideration the special characteristics of this “transitional
period”, the statutory law to be prepared in this phase should not be the kind of tool for socialchange which is aimed at achieving objectives of a future society. Rather, it is important tostart first of all with the preparation of a “life-sized statutory law” appropriate for Uzbekistan.
This statutory law should first be accepted by the current society, albeit with pathology, become
familiar with the social environment, be supported by society and be able to present itself as ameans of social coordination.
In this regard, assertions made by Denis J. Galligan, the British sociologist of law andadministrative law expert, are worth mentioning. According to him, for statutory law to exercise
its social coordination function in practice, it needs to possess “certain qualities” that ensureinteraction and reciprocity (Fuller 1969: p. 27) among individuals and between individuals
and the state (Galligan 2003: p. 19).
This is because we believe that only when the statutory law possesses such “certain qualities”
will it be possible to predict how people behave and how the behaviors will be responded to.
Only then will statutory law be observed by the society. The society will find more fairness
with better certainty, benefits and resorts to remedy, in this “life-sized statutory law” which
ensures interaction and reciprocity, than it could find in the hitherto pathological informal law.
This will lead to the beginning of trust.
What is important here is that the newly introduced “life-sized statutory law” does not
destroy and replace the framework created by the old statutory and informal laws. The oldframework remains. By means of filling this framework with basic substance of the new “life— 47 —Center for Asian Legal Exchange, Nagoya University CALE Books 2

sized statutory law” or designing new “life-sized statutory law” on the periphery of the oldframework, assistance to legal reforms will increase the importance of the statutory law astime gradually passes by. Such legal reform will bear some special characteristics. That is tosay, by developing the new “life-sized statutory law” and by obtaining people’s trust in it, thereform will gradually pose influences on, and bring changes to, the existing framework, andwill thus create an environment favorable to the ultimate reform of the framework itself.

(6) Reform of Legal Education
Second, legal education for the sake of training legal professionals must also take into
consideration the special characteristics of this transitional period. In Uzbekistan today, theSoviet legacy of legal education continues. Most of the education on contemporary statutory
law is either fully marked with commentary notes and illustrated as harmonious and equitable,
or identified as a tool for achieving social goals complete with an introduction to the mostadvanced European and Anglo-American laws. The legal education which pays no attention to
the contradictions actually taking place in the transitional society or which constitutes of only
“imported disciplines” having no root in the real society will not be able to grasp the pathology
particular to the society, nor will it be able to show the way to recovery. Therefore, not only
will such legal education fail to gain people’s confidence, but it may even contribute tostrengthening “legal nihilism” against statutory law.
Legal studies in the transitional society should not end up with commentaries andintroductions only. It needs to adopt a “sociology of law approach” to expand its vision, and to
discover the social environment which seriously impacts upon the function of statutory law
and the different social conditions necessary to ensure this function.

Conclusion
To engage in assistance in law making and training of human resources by taking into
consideration the characteristics of a “transitional period” towards acceptance of statutory law
will likely take much time until the country really reaches the phase of “accepting statutorylaw”. The first job to do is to consider keeping appropriate balance between the statutory law
which needs to be made and the informal law which has been saved from pathology, whileconsiderations have to be made of the social environment during the transitional period. It has
to start from preparation of statutory laws which promote social coordination in limited areas.
It should not be the kind of statutory law that seeks to pursue responsibilities by threats offorce and sanctions or to promote radical social reform. Albeit time-consuming, the assistancemust start with the help to make statutory laws which ensure interaction and reciprocity between
individuals and to train legal professionals whose support is needed for the making of thesestatutory laws.

References
Arifkhanova, Z. Kh. (1998), Rol’ makhalli v vozrozhdenii natsional’nykh traditsii uzbekskogo naroda, 7
OBSHCHESTVENNYE NAUKI V UZBEKISTANE 24-31.
Bobrovnikov, V. O. (2002), MUSUL’MANE SEVERNOGO KAVKAZA, OBYCHAI, PRAVO, NASILIE, VOSTOCHNAIA
LITERATURE.
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Law and Legal Assistance in Uzbekistan

Brussina, O. I. (2000a), Sotsial’no-pravovye sistemy novykh sredneaziatskkikh gosudarstv v konteksteteorii pravovogo pliuralizma, in: N. I. Novikova, V. A. Tishkov eds., ZAKON I ZHIZN’, Strategiia.
Brussina, O. I. (2000b), Fork Law in the System of Power of Central Asian States and the Legal Status of
Russian-Speaking Population, 45 JOURNAL OF LEGAL PLURALISM AND UNOFFICIAL LAW 71-76.
Dzhabbarov, S. (1996), SHARIAT, SEMEINOE I OBYCHNOE PRAVO V UZBEKISTANE: ISTORIIA I SOVREMENNOST’(OPYT SOTSIAL’NO-PRAVOVOGO ISSLEDOVANIIA), Fan.
Fuller, L. L. (1969), Human Interaction and the Law, 14 THE AMERICAN JOURNAL OF JURISPRUDENCE 1-36.
Galligan, D. J. (2001), Authoritarianism in Government and Administration: The Promise of
Administrative Justice, 54 CURRENT LEGAL PROBLEMS 79-102.
Galligan, D. J., Polianskii, V. V., Starilov, Iu. N. (2002), ADMINISTRATIVNOE PRAVO: ISTORIIA RAZVITIIA IOSNOVNYE SOVREMENNYE KONTSEPTSII, Iurist’.
Galligan, D. J. (2003), Legal Failure: Law and Social Norms in Post-Communst Europe, in: D. J. Galligan,
Marina Kurkchiyan eds., LAW AND INFORMAL PRACTICES THE POST-COMMUNIST EXPERIENCE, Oxford
University Press.
Geiss, P. G. (2002), Mahallah and Kinship Relations. A Study on Residential Commumal Commitment
Structures in Central Asia of 19th century, 20(1) CENTRAL ASIA SURVEY 97-107.
Hendley, K. (1996), Law and Development in Russia: A Misguided Enterprise?, 90 PROCEEDINGS OF THE
AMERICAN SOCIETY OF INTERNATIONAL LAW 237-240.
Hendley, K. (2001), “Demand” for Law in Russia – A Mixed Picture, 10(4) EAST EUROPEAN CONSTITUTIONAL
REVIEW, http://www.law.nyu.edu/eecr/vol10num4/special/hendley.html
Hendley, K. (2002), Suing the State in Russia, 18(2) POST-SOVIET AFFAIRS 122-147.
North, D. C. (1990), INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE, Cambridge
University Press.
Riggs, F. W. (1964), ADMINISTRATION IN DEVELOPING COUNTRIES THE THEORY OF PRISMATIC SOCIETY, Houghton
Mifflin Company.
Saidov, A. Kh. (1995), ISLAMSKOE PRAVOVOE NASLEDIE UZBEKISTANA: ISTORIIA I SOVREMENNOST’, Natsional’nyi
tsentr Respubliki Uzbekist po pravam cheloveka.
Saidov, A. Kh. (1999), SRAVNITEL’NOE PRAVOVEDENIE: UCHEBNOE POSOBIE, Adolat.
Sievers, E. W. (2002), Uzbekistan’s Mahalla: From Soviet to Absolutist Residential Community
Associations, 2 CHICAGO-KENT JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 91-158.
Sievers, E. W. (2003), T HE P OST-S OVIET D ECLINE OF CENTRAL A SIA S USTAINABLE D VELOPMENT AND
COMPREHENSIVE CAPITAL, Routledge Curzon.
Tashkentskii gosudarstvennyi iuridicheskii institut (2003), OTCHET OB ISSLEDOVANIIAKH ORGANOV MESTNOGOSAMOUPRAVLENIIA – MAKHALLI V GORODAKH TASHKENTSKOI, SAMARKANDSKOI, BKHARSKOI , FERGANSKOI,NAMANGANSKOI OBLASTEI I RESPUBLIKI KARAKALPAKSTAN NAUCHNOE ISSLEDOVANIE NA TEMU “TRADITSIONNOEPRAVO I SUDEBNAIA REFORMA”.
Tsipko, A. S. (1997), Nado smotret’ na veshi trezvo, NEZAVISIMAIA GAZETA Feb. 13.

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Removing Impediments to the Mobilization of
Local Resources
Charles R. Irish
1. Introduction
People are poor because they have no money. Countries are less developed because they
have no capital. These truisms have a profound impact on the development assistance provided
by rich countries to the poor countries, as evidenced by the tendency to measure development
assistance by the amount of resources transferred from the rich to the poor and the emphasison the creation of an environment friendly for foreign direct investment, with such investment
widely viewed as an important addition to the capital starved economies of the less developed
countries.
These common misconceptions, however, may obscure an important point and steer
development assistance away from programs that would provide real stimulants to economic
growth. The point is that in many cases the major impediments to growth may not be a lack of
capital, but an inability to mobilize the capital that does exist. To be sure, it is rare that people
sit in poverty surrounded by abundant resources; but oftentimes what makes the poor desperately
poor are legal obstacles to the use of the few resources they do have. The legal obstacles
generally are in the form of excessive business regulation and inadequate recognition of property
rights and they result in dead capital – assets that are physically sound, but unusable.1 The
existence of dead capital is most apparent to people who have worked in the poorest parts of
the world. In addition, recent studies by the World Bank have found that the inability to makeuse of local physical and human capital may be a more severe obstacle to economic growththan destructive macroeconomic and education policies. In Doing Business in 2005, the WorldBank concluded that for countries in the bottom three quartiles in business regulation ahypothetical improvement in all of the business regulations sufficient to move into the top
quartile would boost growth by an additional 1.4 to 2.2 percent per year, while improving to
the top quartile in macroeconomic and education indicators would boost growth by only 0.4
percent to 1.0 percent.2
This paper briefly considers the legal impediments to the mobilization of local resources.
The next section lists some examples of legal obstacles to local resource mobilization. The
third section explains why the removal of obstacles to more productive use of local resources
is likely to lead to such significant improvements in economic growth and human development
indicators. The fourth section examines the major factors inhibiting the efforts to simplify andrationalize business regulations and improve property rights. The final section concludes withsuggestions for legal assistance programs in less developed countries.
1
2

World Bank, DOING BUSINESS IN 2005, at 3 (quoting from Hernando de Soto’s The Mystery of Capital).
Id. at 4.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2

2. Legal obstacles to local resource mobilization: A sampling
The legal obstacles to local resource mobilization fall into two broad categories. In one
category are laws and institutions that provide inadequate protection of property rights. In thiscase, the deficiencies of the legal system result in weak or non-existent property rights. In theother category are burdensome regulations that limit the ability to start and carry on businesses.
This category is somewhat the opposite of the first in that here the legal system is too aggressive
and overbearing. The effect of both categories is largely the same, however: in both instances,
the result is that potentially productive physical and human capital sits idle, or alternatively isdriven into the informal economy beyond the reach of the government.

A. Deficiencies in the Legal System
The inadequate protection of property rights can result in significant under-utilization ofcapital. Consider three examples:● Example 1: In 2003, Grace Roseau bought undeveloped land from John Hamilton.
The land sits on a hill overlooking the harbor, is on the outskirts of a major city, andhas easy access to a sandy beach. Because of very substantial stamp duties andcorruption in the land registration office, the cost of formally registering the change
in land ownership would equal about 25 percent of the total purchase price so Graceand John did what is common in the community – they informally transferred theland and did not register the transfer with the government. In 2004, when Grace tries
to build a tourist hotel on the land, however, she discovers that she cannot use theland as collateral for a loan because she is not formally acknowledged as the owner.
● Example 2: Luke Mwanakatwe wants to expand his profitable equipment leasing
business, but to do so, he needs additional financing. Luke’s only tangible assets are
the business equipment and his accounts receivable, but because there is no reliablecredit registry in the country and national law does not recognize accounts receivableas collateral, Luke cannot obtain the financing necessary to expand his business.
● Example 3: In 2003, Wang Microsystems sold stock to a small group of investors,
including Mao Shih Ming. In assessing the risk of the investment, Mao considered
the financial statements of Wang Microsystems and gave special weight to thecertification by the outside auditors, Chen and Partners. In 2004, after Wang
Microsystems declared bankruptcy, it appeared that the certified financial statements
were very misleading and may have been fraudulent. When Mao filed a law suitagainst Chen and Partners for knowingly or negligently certifying the false financial
statements, the case was dismissed because Mao had no formal relationship with
Chen and Partners. Privity was lacking, the judge said. The judge also concluded (i)that only Wang Microsystems had standing to bring a suit against Chen and Partners
for the improper certification and (ii) that Wang Microsystems’ recovery might belimited to the professional fee paid to Chen and Partners.

B. Burdensome Regulations
Excessive and overbearing government regulations result in under-utilization of physicalresources, but they also stifle entrepreneurial talent. Two examples illustrate the effects of— 52 —

Removing Impediments to the Mobilization of Local Resources

such regulations:3● Example 4: Suharnoko wants to start his own business services company. Suharnoko’s
education and his previous work experience make him a good candidate for successin this venture. He also has done marketing research that indicates his business will
fill a gap in the business services industry. The problem is that the government imposesvery significant costs and long time delays to start-up a new business. In order tosatisfy the government regulators, Suharnoko must go through 19 different procedures
which will take on average about 150 days and the total official cost of getting thebusiness started is expected to be over US$1,000, which is many times Suharnoko’s
annual earnings. In addition, it is widely understood that the time delays and large
number of different procedures give rise to pressures to bribe government officials to
speed up the process, so the actual cost often is much greater than the official costs.
In frustration, Suharnoko gives up the plan to start the new business and continues in
his job as a relatively low level employee.
● Example 5: Chartran, Inc. is a company engaged in manufacturing oil and natural
gas pipeline equipment. The company’s sales and profits are growing and Chartranwant to expand its operations. Doing so, however, would require hiring new staff.
The government mandates a minimum wage of US$200 per month, night and weekend
work are prohibited, women can only work a maximum of 8 hours per day, and firing
workers requires the approval of the Minister of Labor and payment of 12 months
salary as severance pay. To avoid the rigidity of the labor regulations, Chartran enters
into informal employment contracts with five new workers. The informal contracts
provide no health care, educational or pension benefits, they are not subject to any of
the safeguards in the labor regulations, and in the case of employer abuses the contracts
cannot be reviewed by the courts since the labor is not documented. Chartran also
bribes key personnel in the Labor Ministry to look the other way with regard to thecontracts.
Each of these examples illustrates how laws or the absence of law can limit the utility ofotherwise productive property and stifle entrepreneurial talent. Of course, these examples are
not limited to the poor countries – many of the failings illustrated in these examples also canbe found in the richest countries. One of the most significant contributions of the World Bank’s
Doing Business in 2005, however, is to demonstrate the unfortunate relationship between
economic under development, poor protection of property rights and excessive regulation ofbusiness activities. Based on an analysis of 7 areas of business regulation in 135 countries,
Doing Business in 2005 concluded that the 20 countries with the most burdensome businessregulations and the least protection of property rights are all poor and many are among thepoorest in the world. Among the 20 countries with the best records, only two could becharacterized as less developed – Thailand and Botswana. The report lists the businessregulations in the following countries as the least burdensome:3

Examples 4 and 5 are inspired by the World Bank’s, DOING BUSINESS IN 2005, at 17–32.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2

01. New Zealand
02. United States
03. Singapore
04. Hong Kong
05. Australia
06. Norway
07. United Kingdom
08. Canada
09. Sweden
10. Japan

11. Swizerland
12. Denmark
13. Netherlands
14. Finland
15. Ireland
16. Belgium
17. Lithuania
18. Slovakia
19. Botswana
20. Thailand4

The report also stresses that the lack of burdensome regulations should not be taken as
evidence of zero regulation:
Being in the top 20 on the ease of doing business does not mean zero regulation. Few
would argue it’s every business for itself in New Zealand, that workers are abused in Norway
or that creditors seize a debtor’s assets without a fair process in the Netherlands. Indeed,
for protecting property rights, more regulation is needed to make the top 20 list.
All of the top countries regulate, but they do so in less costly and burdensome ways.
And they focus their efforts more on protecting property rights than governments in othercountries.5
The conclusions of the report are:● Businesses in poor countries face much greater regulatory burdens than those in richcountries. They face 3 times the administrative costs, and nearly twice as many
bureaucratic procedures and delays associated with them. And they have fewer thanhalf the protections of property rights of rich countries.
● Heavy regulation and weak property rights exclude the poor from doing business. In
poor countries, 40% of the economy is informal. Women, young and low-skilledworkers are hurt the most.
● The payoffs from reform appear large. A hypothetical improvement to the top quartileof countries on the ease of doing business is associated with up to 2 percentage points
more annual economic growth.6

3. Why the Benefits of Reform Are So Great
Removing the obstacles to the mobilization of local resources is so promising because it
produces several different consequences, all of which come together to support greater economic
development and the more efficient use of human capital.
● Simpler and more rational business regulations require less time and expense on bothsides of the regulatory process. The government bureaucracy overseeing the regulation
4

Id. at 2.
Id.
6 Id. at 3.
5— 54 —

Removing Impediments to the Mobilization of Local Resourcesof business will require less of the government’s resources, which will enable thegovernment to divert personnel to the delivery of essential services, such as health,education, and infrastructure development.
● On the business side, more efficient regulations will require less time and resources
for compliance, which will allow the businesses to spend more time on their productive
activities. They will produce more goods and services and spend less time on
government compliance matters.
● The simpler and more rational business regulations will stimulate new businessdevelopment as people previously deterred by the high costs of business start-ups
move to establish their businesses. In addition, businesses operating in the informal
economy because of the excessive and unrealistic legal burdens in the formal economy
will be encouraged to shift to the formal sector.
● The growth of the formal economy through the establishment of new businesses andshrinkage of the informal economy will expand the government’s tax base. This willallow the government to further escalate the delivery of essential services. Note theimportant implication here – that rationalization of business regulation includes tax
reform, with tax rates reduced to international norms and tax compliance penalties
stepped up to increase the risks associated with operating in the informal economy.
● As the formal economic grows both in absolute terms and relative to the informal
sector, the government’s business regulations will become more relevant to business.
Simplifying and rationalizing the regulatory process thus will actually lead to theregulations having a broader impact. This will have its greatest effect on those groups
most at risk in the labor markets. Women and children now will be protected by thegovernment regulatory process rather than being left unprotected in the informal
economy.
● At the same time, the simpler and more rational business regulations aimed at
mobilizing local resources will also be attractive to foreign investors. As local barriers
to doing business fall and respect for property rights grows, not only will local capitalbe drawn into the economy, but also foreign direct and portfolio investment will bedrawn to the market.
● Greater protections for property rights will bring dormant capital into productive
use. The entire financial system will be on sounder footing as credit arrangements
tend to follow economic opportunities rather than personal relationships.
● The emergence of local resources to finance economic activities will reduce thereliance on foreign assistance and build up national self-sufficiency. Economic growth
beginning from within the economy is much more sustainable and is more likely to
produce local linkages that further enhance the growth prospects.

4. The Barriers to Reform Are Substantial
It seems relatively easy to identify the regulatory obstacles to making more productive useof local resources. In addition, since examples of best or better practices are readily accessible,
the critical question is “Why aren’t reforms proceeding at a rapid pace? What is holding backthe reform process?”— 55 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

In fact, regulatory reforms aimed at improving the business climate and enhancing property
rights are occurring, but according to Doing Business in 2005 they are taking place more in
the high and middle income countries and in recent years the reform process has been driven
principally by the need to compete within the newly expanded European Union.7 Unfortunately,
the lowest level of reform is occurring in the poorest countries, which are most in need ofreform and have the most to gain from such reform. So, the question becomes Why aren’t thepoorest countries more active in reforming business regulations and investor protections? The
answers lie in the reasons for government regulations.
There are three principal theories supporting government regulations. The first, and mostsanguine, is the public interest theory of regulation. This theory assumes that unregulated
markets experience frequent failures and that governments regulate to counter those failures
and to make the markets safer and more efficient.8 The second is one variant of the public
choice theory and suggests that the regulated industries capture the regulators and are able toturn the regulatory process to the advantage of the regulated.9 Under this theory, stricter
regulations are in the interest of the existing operators because the regulations limit entry into
the marketplace and enable the existing operators to earn monopoly rents. The third theory isa second variant of public choice theory and is referred to as the tollbooth view.10 Under thistheory, government regulations exist to give politicians and bureaucrats the opportunity tocreate artificial scarcities and then extract the rents from such scarcities through bribes, campaign
contributions, and employment opportunities for friends and family members.
In the case of less developed countries, there sometimes is a fourth reason for government
regulations – legal inheritance or legal transplantation. The less developed countries may haveinherited obsolete or counterproductive regulations from their former colonial masters andinertia or a lack of skilled personnel may have insulated the regulations from reform. In thealternative, naïve legal transplantation may have resulted in the introduction of unhelpful
regulations and inertia, lack of skilled personnel, or the daunting influence of the imprimaturof a foreign assistance program may keep the regulations from the review process.
The public interest theory of government regulations suggests that regulations are designed
to serve the broader public good. The two variations of public choice theory, however, proclaim
the winners to be either the existing operators in the regulated industry or the politicians andbureaucrats who administer the regulations. Under either public choice theory, the generalpublic is not well served. In the case of inherited or transplanted regulations, economic
productivity may suffer, but the regulations themselves may not have a powerful constituency
supporting them.
The regulations that are the most injurious to the public and have the greatest adverse
impact on local resource mobilization are precisely the ones with the most powerfulconstituencies supporting them – either the regulated industries or the government implementing
the regulations. Further, the World Bank’s Doing Business in 2005 has found extensive evidence

07 Id. at 1.
08 Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer, The Regulation of

Entry, 117 QUARTERLY JOURNAL OF ECONOMICS 1–2, 2001.
09 Id. at 2.
10 Id. at 2–3.

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Removing Impediments to the Mobilization of Local Resourcesthat the most injurious regulations, especially regulations under the tollgate theory, are much
more common in the more autocratic and less developed countries than in the more democraticand developed countries. This explains why reforms are so difficult to achieve in the lessdeveloped countries – they must be done in the face of formidable, local opposition.11
Lest the rich countries get overly smug about the slow pace of reform in the poor countries,
it should be recognized that their governments also stymie reforms that clearly are in thenational interest in order to protect a few powerful vested interests. The clearest examples are
the Japanese government’s intransigent position on rice imports to protect local rice farmers
or the U.S. government’s cotton subsidies to guarantee the market for a few rich, but politicallypowerful cotton farmers. The governments in the poor countries are doing much the samething as they oppose the reform process, it is just that they may be doing it to a greater degree
and with more damage to the local economies than in the rich countries.

5. Conclusions: Implications for Legal Assistance Programs for Less
Developed Countries
Apart from human rights and criminal law reform projects, it would appear that legal
assistance programs for less developed countries should be concentrated in improving theregulatory environment affecting businesses and investors. The benefits from regulatory reform
seem so great that there is a compelling case for directing all legal assistance for private sector
development into the simplification and rationalization of business regulations. If the hostcountries are not willing to accept that emphasis, it may be that the technical assistance would
be more effective if it were redirected to other host countries where the governments are more
receptive to reforming business regulations.
Three concluding thoughts on the structure of legal assistance programs for private sector
development:● First, the initial phase of legal assistances program should be a catalogue of the businessregulations. The World Bank’s Doing Business in 2005 and subsequent editions should
help immensely with this process as they already have collected extensive information
on 8 areas of business regulation in about 140 countries. As part of the cataloging
process, however, business regulations should be defined according to theconstituencies supporting them. In the case of unhelpful regulations lacking clear
constituencies, the reform process may be expected to proceed quickly. On other
hand, a regulatory program that enriches the prime minister’s family may not be agood prospect for the first efforts at reform.
● Second, who are the most suitable technical advisors – local professionals or foreign
experts? In developing its Doing Business … series, The World Bank is depending
on input from different local sources and the results seem impressive.12 On the other
hand, local professionals are more likely to be co-opted by powerful constituencies
supporting particular regulatory programs, so the use of foreign experts may promote
greater objectivity. A review of government regulations applicable to legal services
11 World Bank, DOING BUSINESS IN 2005, at 3–4.
12 Id. at 11–14.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2

may be skewed, for example, through reliance on highly regarded professionals within
the regulated industry – especially since bar associations around the world are thebest examples of regulatory capture under the public choice theory.
● Finally, the reforms must be implemented and then sustained to be effective. Just
passing new and more enlightened regulations does not guarantee a change in theregulatory environment. As demonstrated by the U.S. experiences in pressuring East
Asian countries to adopt greater protections for intellectual property rights, the passageof laws is only the first step towards actual change in the legal environment. Law
reform programs thus should include multiple stages, including the formulation ofreform proposals, passage of the proposals, implementation of the new proposals,
and ongoing reviews of the proposals to insure that the reforms remain as positive
forces for economic development and the mobilization of local resources.

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The Rule of Law and Economic Development:
A Cause or a Result?
Hiroshi Matsuo
1. Introduction
The legal reform has become the major category of international aid, as it has beenrecognized that the institutional reform matters in development (World Bank 2002). Now thedevelopment can be restated as the comprehensive reform of institutional structure in thedeveloping societies. The rule of law has become the symbol of the institutional reform andthe rule-of-law projects have been undertaken all over the world.
However, the outcome of those projects is now questioned: what has been brought about
through the rule-of-law projects? If we focus on the relevant problem of the relationship between
the rule of law and economic development, discussions continue between the opposite views.
On the one hand, there is a belief that the rule of law facilitates the economic activities and it
is a necessary precondition for economic growth (see 2 (1) below). On the other side of theview, it is criticized that the rule of law is not “a path to development” but “a highly desirable
result of development” (Upham 2001).
This chicken-or-egg like question seems to depend ultimately on the definition of the ruleof law. According to the formal definition1 , the rule of law is measured by some objective
criteria such as the existence of a set of legislations, the fair execution of law by the executive,
the independent and impartial judiciary, etc., and it can be an instrument to be made and used
for the promotion of economic transactions and other activities of the people. On the other
hand, if we rely on the substantive definition, the rule of law is regarded as the rule of good law
which is normatively just and fair (Dworkin 1985). In this sense the rule of law is postulated as
the objective to be sought rather than the mere instrument and is valued as such rather than ismeasured by incidental outcomes. The functional definition of the rule of law focuses on “howwell the law and legal system perform some function” such as constraining the government
discretion, making legal decisions predictable, etc. (Stephenson 2001b). It seems to be theinstrument, but may be the objective depending on the contents and degree of the function to
be required.
Whatever the definition we will use and whatever the contents we will require of the ruleof law, however, it is worthwhile to make clear the causal relationship between the rule of law
and economic development. For we must be certain whether and how the rule of law would
lead to development before we embark on the rule-of-law project.
In this paper various views on the causal interaction between the rule of law and economic
1 The rule of law is formally defined as the rule of laws which are made by the legislature in accordance withthe constitutional rules on law-making, made public, applied precisely and not retroactively, executed certainlyby the executive, judged openly and fairly by the independent judiciary, etc.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2

performance will be reviewed. We will analyze some variables and conditions which relate toeconomic growth together with or independent of the rule of law. If the rule of law is not
merely the derivative or epiphenomenal result but can be a possible cause under certain
circumstances, then it will be considered how the rule of law may be implemented together
with some additional conditions. Then the rule of law will be faced with the question of how it
relates to good government, for a certain aspect of the good government seems difficult to becompatible with the rule of law. Finally we will come back to the question of what at all therule of law is and how it will contribute to economic development.

2. The Rule of Law and Economic Performance(1) Positive Views
The rule of law especially defined as the existence of a set of formal rules and an enforcement
mechanism has been regarded as the basic condition for economic development. For it protects
the rights of individuals, execute contracts, and thus provides the people with predictability of
the actions of contractual parties as well as those of government. For instance, the property
rights protection by creating the formal transferable title system reduced transaction cost to
constantly test the title of the transferor and removed obstacles to rapid transaction, increased
certainty of the property and facilitated the mortgage system, provided the financial transactions
with calculability and attracted investments, and thus fostered economic development (Mehren
and Sawers 1992). Mehren and Sawers presented the thesis that “the development of legalism
in general, and the specific conceptual innovation of title in particular, has had an important
impact on the economic development of Thailand’s agricultural sector” (Mehren and Sawers
1992: p. 68).
There is also a report according to which the land law reform in Arab countries liberalized
the land ownership, defeated the stranglehold by the comparatively few notables and militaryclasses over agricultural land, weakened or abolished institutions which imposed restrictions
on the freedom of contract, allowed non-possessory or deferred mortgages to obtain credit,
instituted programs of agrarian reform and thus removed some obstacles to the economic
development (Ziadeh 1985).
Another study analyzed a positive correlation between the security of property rights byremoving the risk of expropriation, security of contractual rights through contract enforceability,
and the efficiency of provision of public goods and creation of policies by the governments on
the one hand, and the amount of investments and the speed of growth on the other (Knack and
Keefer 1995).
A survey which focuses on the judicial independence as “a crucial aspect of the rule oflaw” testifies that “[w]hile de iure judicial independence does not have an impact on economic
growth, de facto judicial independence positively influences real GDP growth per capita”(Feld and Voigt 2002).
It seems to be recognized with evidence that the predictability on the part of judiciary, theless likelihood of government repudiation of contracts, the lower level of corruption, the reductionof risk of government expropriation, the quality of bureaucracy, and overall maintenance of therule of law significantly influence and positively associated with the levels of income, rates ofgrowth and amounts of investment (Davis and Trebilcock 2001: pp. 26, 28).
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The Rule of Law and Economic Development: A Cause or a Result?

(2) Objections
However, there are also evidences which indicated that reforms of the formal legal system
had little effects on economic and social conditions in developing countries (Trubek & Galanter
1974). Recently empirical studies have been accumulated which attempt to show the causal
relation between a reform of particular field of law and a specific effect2 .
With respect to land reforms designed to facilitate the privatization of land, for example,
the evidences concerning the impact on productivity is regarded as mixed. With regard to theeconomic effects of the formalization of title to land, its impact on incentives to invest in theacquisition or improvement of real property is also seen as mixed.
Rather the feasibility and effectiveness of land redistribution programs to enhance
agricultural productivity and reduce inequalities were significantly undermined by the interestsof dominant groups in a society. Some relatively successful land redistributions such as thosein South Korea, Taiwan, Japan, etc. were mostly undertaken during the period of radical reform
just after the World War II under the strong pressure or supervision from outside (Davis andTrebilcock 2001: p. 28).
Also the land titling programs faced difficulty to change the customary patterns of landholdings and land dealings which were “stubbornly persistent”, because the introduction ofland title system not only affected the interests of the privileged class but simultaneously
created new uncertainties for other groups who had traditionally enjoyed usufructuary rights
and feared a risk of being denied their customary rights to land during the registration process(Platteau, 1996).
We have also data which indicate that the economic growth does not always positively
correlate with the rule of law. For instance, the rule-of-law indicator adopted by the UNDP
does not seem to show the correlation with economic growth, especially in Asian countries(see [Table 1]). Here the rule-of-law indicator is measured by the aggregate of a variety of
individual factors such as (a) black markets, (b) enforceability of private and government
contracts, (c) corruption in banking, (d) crime and theft as obstacles to business, (e) losses
from and costs of crime, and (f) unpredictability of the judiciary (UNDP 2002: p. 37)3. Morethan five percent GDP growth rate may be accomplished not only under the higher sore of therule-of-law as is the case of Singapore, but also under the lower score of the rule of law asobserved in China, Vietnam, Thailand, Myanmar, Korea, etc.
Of course it cannot be neglected that the Asian financial crisis which occurred during thisperiod highlighted the failure of the rule-of-law reforms such as the lack of transparency andaccountability and it affected the economic growth. This implied that the Asian miracle
economies are unstable without the rule of law (Carothers 1998: pp. 105–106), and the rule oflaw becomes significant in the second stage of development. Besides, the data cover only alimited period and it is too short to identify the real effects of the rule of law on the long-term
economic growth that matters in development. Anyway we need much more data including
those of the change in the rule-of-law indicator to analyze the correlation more accurately.

2 Those empirical studies are collected and summarized in Davis and Trebilcock 2001: pp. 27–30.
3 Government effectiveness is measured by the factors such as (a) bureaucratic quality, (b) transactions costs,(c) quality of public health care, and (d) government stability (UNDP 2002: p. 37).

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Center for Asian Legal Exchange, Nagoya University CALE Books 2[Table 1] The Rule of Law and Economic Growth
GDP per capita
annual growth rate (%)

Rule of Law
2000-2001

Government
Effectiveness
2000–2001

1975–2002

1990–2002

U. K.

–1.61

–1.77

2.1*

–2.4*

France

–1.22

–1.24

1.7*

–1.6*

Germany

–1.57

–1.67

2.0*

–1.3*

Kenya

–1.21

–0.76

0.3*

–0.6*

U. S. A.

–1.58

–1.58

2.0*

–2.0*

Brazil

–0.26

–0.27

0.8*

–1.3*

China

–0.10

–0.14

8.2*

–8.6*

Vietnam

–0.57

–0.30

5.0*

–5.9*

Thailand

–0.44

–0.10

5.2*

–2.9*

Myanmar

–1.02

–1.25

1.8*

–5.7*

Indonesia

–0.87

–0.50

4.2*

–2.1*

Singapore

–1.85

–2.16

5.0*

–3.8*

Korea

–0.55

–0.44

6.1*

–4.7*

Japan

–1.59

–0.93

2.6*

–1.0*

Source: UNDP 2002 (for Rule of Law Indicator); UNDP 2004 (for GDP per capita).
*: Data refer to a period shorter than that specified.

(3) Focusing on Factors Other than the Rule of Law
One of the possible answers to these different views may be that the rule of law is not an
independent or autonomous variable in the process of socio-economic change. Rather its
effectiveness must be contingent on that of other factors including the political stability,
government effectiveness, informal system of dispute resolution or trade networks, domestic
and international socio-economic circumstances, religious attitude, etc. As a result, it is not
surprising that if two countries recorded the same rule-of-law score, they may differ in theeconomic growth. The rule of law would reinforce as well as retard the economic development
depending on other variables. For instance, the land title system introduced in Thailand
reinforced the economic growth under the specific conditions of the Thailand’s entry into theworld market through the Bowring Treaty, the increasing demand for rice and the concomitant
increase in the price of rice and land and the rise of commercialized agriculture. In this context
legal reform played “a more modest, though important reinforcing role” (Mehren and Sewers
1992: p. 93).
The effectiveness of a legal reform may also differ depending on the cultural factors
developed in each country or region. Perry attempts to present a culture-based approach toward
the relationship between legal reform and economic development. Relying on Geert Hofstede’s
study of variance of cultural values, he focuses on the general character of the people such as
the (i) uncertainty avoidance, (ii) collectivism or individualism, (iii) power distance (differencesin the power distribution between citizens and the state), (iv) femininity or masculinity, and(v) long-term orientation or short-term orientation. Perry analyzes their significance, for— 62 —

The Rule of Law and Economic Development: A Cause or a Result?

instance, as follows:
People from countries with a high UAI [uncertainty avoidance index] score tend to have an‘emotional’ need for rules … more precise laws than those with low UAI scores. … By contrast,
low UAI countries have ‘an emotional horror of formal rules’ and resort to them only ‘in caseof absolute necessity’. Paradoxically, ‘although rules in countries with weak uncertainty
avoidance are less sacred, they are generally more respected’ (Perry 2002: pp. 296–297).
… economic actors in East Asian collectivist cultures tend to rely on more on networks of
personal relationships and negotiation than on legalism and written contracts. Such flexible
relationships require a good deal of state discretion (Perry 2002: p. 304).
In small power distance countries (…, for example, Great Britain), ‘a feeling dominatesthat the use of power should be legitimate and subject to the judgement between good andevil’; that inequality is ‘basically undesirable’ …; and that the ‘law should guarantee thateverybody, regardless of status, has equal rights’. … small power distance countries arecharacterized by rule-based (less discretionary) state.
In large power distance countries (…, for example, the Philippines), ‘power is seen as abasic fact of society which precedes the choice between good and evil’, and ‘[i]ts legitimacy isirrelevant’ because ‘[m]ight prevails over right’ (Perry 2002: pp. 301–302).
Countries that combine strong uncertainty avoidance with individualism (for example,
France) tend to favour rules that are ‘explicit and written’; while countries which combine
strong uncertainty avoidance with collectivism (for example, Japan) tend to favour rules whichare ‘implicit and rooted in tradition’ (Perry 2002: p. 300).
Based on this approach, Perry criticizes the “contemporary prescription for legal reform”
which emphasizes the “market-allocative” and “rule-based” and thus “private-sector-led
development policy held by the international financial institutions. Those variables may
influence the function of legal reform and economic development, and will guide to makemore flexible development policies depending on the cultural variance.
Upham pays attention to the role of informal rules in the economic development. He notesthat the rule of law is not a necessary condition for development and sometimes evencounterproductive when the “informal mechanisms” which foster economic growth are more
effective and efficient than the formal rules (Upham 2001). For instance, in the case of Japan,
Upham states, formal legal rules have very little to do with the economic growth and insteadother causes have been functioning. He indicates: (a) the Japanese allowed interaction between
bureaucrats in the powerful Ministry of International Trade and Industry, politicians, and private
business to guide economic policy; (b) the Japanese also rely on a system of informal
mechanisms to handle disputes including the Big Four Pollution Cases in the 1970s. Upham
concludes that in its extensive reliance on informal mechanisms, the Japanese legal system
would serve as a better model for developing countries than the United States (Upham 2001).
It is true that the existing informal rules may give the predictability, while the newly
introduced formal rules may increase the transaction costs. In this context the costs of replacing
well-functioning informal institutions with formal ones should not be overlooked in the processof legal reform. However, at the same time, the role of informal rules should not be
overemphasized and they must be valued in total including their negative effects. Anyway wemust be very before concluding that the rule of law is not a necessary condition for economic
development.
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Center for Asian Legal Exchange, Nagoya University CALE Books 2

Although the rule of law is not a panacea, its significance for economic development must
be measured in the long-run process of the comprehensive institutional change of the society.
Because formal institutions such as the rights-based legal system supported by the government’s
enforcement mechanism and the people’s rights consciousness need fairly long time to betransplanted. But once they begin to take root, they gradually supplant the informal systemand become more cost-effective as the economic activities extend and the impersonaltransactions become popular around the country. Japanese style of economic development, I
believe, may be a typical sample of such a long-run institutional change rather than that of theinformal rules.
Another reason for the necessity of the long-term evaluation is that the impact of the ruleof law may appear more significantly in “the second phase” of development, for instance, inthe stage of building institutions such as tax agencies, customs services, antitrust agencies,
etc. which need the governance reform by realizing the stability, transparency and accountability
and thus to deepen and consolidate the institutional reform after the first phase of economic
liberalization initiated by the introduction or reform of market system (Carothers 1998: p. 98).

3. Good Government and the Rule of Law
If the rule of law can be an effective instrument under additional conditions for economic
growth, the next question is how to implement it in a particular situation of each country.
However, we have learned that this is a quite difficult problem, because the rule of law includes
not only (a) the legislation of formal rules, but also (b) the establishment of enforcement
mechanism and (c) the change of attitude of the people as well as of the government to respect
for the formal rules4 . In this context the rule-of-law reform must be placed within a part of thecomprehensive institutional reform seeking for good government.
If we rely on the substantive definition of the rule of law as the rule of good legal system,
the rule of law can be abstractly and easily regarded as an “equivalent to good government”(Thomas 2001). However, if we are actually engaged in the legal reform project bearing in
mind the formal or functional definition of the rule of law, “there is no a priori reason tobelieve that the rule of law … is necessarily always a good thing.” Stephenson puts it:
Consider the example of official discretion. Official discretion is often a bad thing – when
seen as such, the behavior is often called “arbitrary.” On the other hand, sometimes official
discretion is a good thing – in these cases, we tend to think of the behavior as “flexible.” But
flexibility and arbitrariness may be two sides of the same coin. Whether official discretion isused for good or ill depends on a host of other factors. The rule of law, while often a goodthing, can in some cases create problems (Stephenson 2001b).
4 Carothers classifies the rule-of-law reform into three types: the first type concentrates on the law themselves

such as commercial law, criminal law, etc.; the second type is focusing on the strengthening of law-related
institutions to make them more competent, efficient and accountable; and the third type legal reform aims atincreasing government’s compliance with law. He notes that the rule-of-law projects assisted by the foreign
aid have been concentrated on the first and second type which are more easily attained than the third that isconcerned with the real change in the government obedience to law and is “the hardest, slowest kind ofassistance.” As a result the rule-of-law aid “affected the most important elements of the problem least”(Carothers 1998: pp. 99–100, 105).

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The Rule of Law and Economic Development: A Cause or a Result?

This implies that one of the virtues of the good government as predictability or credibilityof government decision, that is also a primary factor of the rule of law, is sometimes difficult
to be compatible with another virtue of the good government as flexibility of the government
decision, especially “in times of economic crisis or rapid change.” Stephenson also puts it:[T]he economic impact of a particular set of institutions often depends on context. For
example, certain institutions make it difficult for the government to institute policy changes.
In some contexts, this is beneficial for economic development, since it makes government
commitments more credible (Brunetti and Weder 1994; Henisz 2000).
On the other hand, in times of economic crisis or rapid change, these same institutions canhinder a government’s ability to respond effectively (Tsebelis 1995). An independent
constitutional court may encourage foreign investment by ensuring the executive does notarbitrarily seize property, but if it were to prevent the rapid adoption of policies needed tocounteract a financial crisis, it might also discourage investment. The consensus seems to bethat, in developing countries, maintaining credibility tends to be more economically important
than retaining flexibility, but the example illustrates the complexity involved in assessing thenet economic impact of institutions (Stephenson 2001a).
The “good” government includes various elements which can be divided, I believe, into
three aspects: (a) the “efficiency” of the government’s function, (b) the “righteousness” in theexercise of governmental power and (c) the “benevolence” of the government toward thepeople5 . We can not escape from the latent contradiction between the “efficient” governmenton the one hand, and the “righteous” and “benevolent” government on the other. This means
that, for instance, the rule of law which guides the righteous government to provide the people
with calculability, predictability, credibility sometimes fall into contradiction with the demandon the efficient government to require a flexible decision making in the context of development.
As it is difficult to meet these different aspects of the good government at a time, the only
possible way would be that we promote the rule-of-law project as a part of the good-government
project step by step, avoiding the “vicious circle” by balancing those aspects toward the “goalsof development” (Huntington 1987)6 . This may be characterized, I believe, as the incremental
and balanced approach to the rule-of-law reform.
In this context the relationship between the rule of law and economic development is a partof the whole story. We have to take into consideration, at least, the relationship between therule of law, economic growth and democracy. There are various views on this relationship tothe effect that (a) the democracy promotes economic development; (b) it reduces economic
growth; or (c) it has no statistically significant impact on economic outcomes (Davis andTrebilcock 2001: p. 26). Anyway the structural obstacle to harmonize the marketization and
5 The efficiency is concerned, for instance, with the policy making and enforcement by the government tosupport the market system. The righteousness relates to the formal decision making of the government
including legislation, judgment of the court and administrative decision in accordance with the rule of law,legality and administrative justice such as accountability, transparency and probity. The benevolence means
the government’s consideration for the people to open its information, to promote democratic participationand to foster the civil society.
6 Huntington enumerates as the goals of development (a) economic growth, (b) equality, (c) democracy, (d)stability and (e) autonomy, and analyzes the views on the conflict, compatibility and harmonization between
them (Huntington 1987).

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Center for Asian Legal Exchange, Nagoya University CALE Books 2democratization can not be ignored. By taking the significance of ethnic problem into
consideration Chua puts it:[T]he combined pursuit of marketization and democratization in the developing world is
likely to catalyze ethnic tensions, with potentially catastrophic effects, including the subversionof both markets and democracy (Chua 1998: p. 6).
The market will not lift the great majority of citizens out of poverty. Rather, it will aggravate,
at least in appearance and probably in reality, the existing ethnic maldistribution of wealth.
Democracy will not make all voters imagine themselves as coparticipants in the fraternal national
community. Rather, the competition for votes will more likely foster the emergence of ethnic
political entrepreneurs (particularly among the impoverished majority) and active
ethnonationalist momvements. Markets and democracy cannot be regarded unproblematicallyas solutions to the dangers of ethnic strife in deeply divided societies. … marketizing anddemocratizing lawyers who continue to ignore the developing world’s historic distributional
problems, especially its ethnodistributional problems, are engaging in “romanticism or worse”(Chua 1998: pp. 106-107).
To solve this puzzle, Chua indicates as “the best of the ‘second best’ solutions,” that is, the“carefully tailored, ethnically conscious market interventions” including affirmative action
made by the government on the one hand, and the “ethnically conscious tailoring of thedemocratic process” led by the government to control the democratization process on theother, depending on the particular situation of individual case (Chua 1998: pp. 62, 77, 91). In
this coordinating effort, however, “the second best solutions” should not be perpetuated andthey must not be used merely as an excuse for market intervention and democratization control
by the government. In this context it is worthwhile, I believe, to reconfirm the basic implicationof the rule of law to restrict the government discretion, which will also enable us to avoid the“romanticism or worse,” though such an effort must be full of tensions and far from“romanticism.”

4. Conclusion
It is not easy to describe clearly and accurately the causal relationship between the rule oflaw and economic development. There are various factors which disturb the function of therule-of-law reform. However, these negative factors do not mean to deny the possible correlation
between the legal reform and economic development. Further, in the light of the accumulated
studies, it seems difficult to conclude that the rule of law is not a necessary condition foreconomic growth but merely an incidental result contingent on a particular pattern ofdevelopment. We can not expect the rule of law too much, but never make little of it. For the
moment, the agenda for the future discussion may be summarized as follows.
(a) The rule of law is not a single, autonomous and independent cause of economic
development. It can be a facilitating factor for economic growth only if some basic and additional
conditions are satisfied. Those conditions vary depending on the history, culture and initialsituation in each country. However, they may be concerned with (i) the domestic and international
economic situation such as the degree of commercialization and the extension of impersonal
exchange, (ii) the cultural attitude of the people toward law, for example, the reliance on formal
rules, (iii) the strength (or weakness), efficiency and rationality of the existing informal rules.
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The Rule of Law and Economic Development: A Cause or a Result?

Both the factors which will prevent the legal system to function and the possible conditions
which will facilitate the economic development together with the rule-of-law must be
investigated in the specific situation and historical context of a particular country or region.
Among those factors cultural elements may be interpreted into informal rules7 , and they might
include what is called “social capital” (Putnam 1993) which facilitates the co-operative activities
among the citizens that influence the performance of institutions.
(b) In the process of the rule-of-law reform, it is not surprising that the legal reform is morecostly or even counterproductive when the informal rules have been more effectively and lesscostly applied to transactions and other activities. However, before it is decided which informal
rules should be kept and which should be replaced, the investigation must be made on the total
effects of the informal rules concerned and the possible effects of a series of legal reforms
must be measured not in the light of impact on rapid economic growth but in the long-term
process of the comprehensive institutional reform.
(c) To reduce the costs of legal reform as possible as we can informal rules should not be
replaced by formal rules at a time. It must be taken into consideration that every legal system
consists of the combination of formal rules and informal rules. All the legal reforms must be
undertaken by paying enough attention to the existing rules and, if it is possible, by using
them. Those existing rules can not be ignored only because their contents are bad. Institutional
reform can be performed by starting from the scaffolding of a set of present institutions, andinstitutional change could only be realized through the existing institution concerning the ruleof change. As a result all the legal reform is necessarily incremental in its nature and thus all
the possible development is path-dependent (North 1990) and there is no standard pattern.
(d) Any law can not exist as a single and isolated rule, rather every law is a part of acomprehensive legal system. In the process of the rule-of-law project, comprehensive andlong-term planning must be indispensable. Legal reforms performed by the ad hoc-basis or
fragmented legal reforms would have little effect, or even counterproductive when they produce
contradictions with other legal reform projects. It would affect seriously the consciousness ofthe people to respect for law, which is in the heart of the rule of law (see (f) below). Although
there would be no fixed and standard pattern, the order of legal reform should be investigatedand each legal reform project must be placed into the comprehensive and long-term planningof institutional reform.
(e) In the rule-of-law reform the marketization for economic growth must be coordinatedwith the democratization. Also in such a coordination process the government’s decision must
be basically predictable and credible. However, especially in the time of rapid change or
economic crisis more flexible policies may be required of the government. However, particularlyin this context the special significance of the rule of law must be remembered and reconsidered
to identify the flexible decision making by the government which is allowed within the rule oflaw and arbitrary discretion in the name of flexibility.
(f) The rule of law in a sense may exist in most societies if we take into account not only
formal rules but also informal rules. For the people in every society must be bound by any
7 The interpretation of culture into a set of informal rules may be possible, because a particular element of aparticular culture can be regarded as a set of traditional and conventional rules which guide the patterns ofconduct of the people in each society.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2rules which are actually applied so as to avoid uncertainties, though they may be individual,
unstable, irrational or inefficient. However, rule of law in its proper sense exists in societies
where the formalization system of rules is established, by which law is conceived as a “union”
of the primary rules to give rights to and impose duties on the people and the secondary rules
to recognize, adjudicate and change the primary rules (Hart 1961: pp. 79-99). Then, after thatstep, we can ask whether those rules are actually enforced or not, and whether their contents
are normatively valued as good or not.
Thus the rule of law contains (i) the basic attitude of the people as well as the government
to obey the rules, (ii) the existence of formalization process of the rules, (iii) the actual
implementation mechanism of the laws, and (iv) the normative value of the laws. If all theserequirements are satisfied in a society, then it can be said to have the rule of law in the moststrict sense.
In the rule-of-law project we must be very careful not to neglect the basic elements such as
the basic attitude to obey the rules (above (i)) by emphasizing the importance of other elements
such as the normative value of the law (above (iv)). For instance, if the donors overlook thepeople’s original attitude to obey the existing rules (whether informal or formal) and attempt
to introduce new legal system rapidly only by paying attention to its contents, it would seriously,
however unconsciously, undermine the establishment of the rule of law.
The basic implication of the rule of law which is rooted in the very nature of law and legal
system is that once a set of rules are recognized as law in a legal system, they must be obeyedby the people as well as by the government (Raz 1977; Raz 1990) until they are changed inaccordance with the rule of change that is included in the legal system. All the legal reforms
can be performed only as an extension of the existing rules by using some of them. This basic
implication should always be kept in mind in the process of legal reform project.

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Harris, J. W. (1997), LEGAL PHILOSOPHIES, 2nd Edition, Butterworth.
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eds., UNDERSTANDING POLITICAL DEVELOPMENT, Harper Collins, at 3 ff.
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Center for Asian Legal Exchange, Nagoya University CALE Books 2Trubek, David M. (2004), The Rule of Law in Development Assistance: Past, Present and Future, in: M.
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Human Rights and Democracy in Vietnam:
Some Thoughts on the Philosophy of Legal Assistance1
Masanori Aikyo
1. Human Rights and Democracy in Vietnam
The current Constitution of Vietnam (enacted in 1992 and amended in 2001) states in
Arts.50 and 51 on “Human Rights” and “The Rights of Citizens” as follows:“Article 50: In the Socialist Republic of Vietnam human rights in the political, civic,
economic, cultural and social fields are respected. They are embodied in the citizen’s
rights and are determined by the Constitution and the law.”“Article 51: The citizen’s rights are inseparable from his duties.
The State guarantees the rights of citizens; the citizen must fulfill his duties to the Stateand society.
The citizen’s rights and duties are determined by the Constitution and the law.”
Spiritual freedom in the forms of physical liberty and freedom of expression have beenguaranteed under the provisions of the current constitution of 1992. However, under the present
denial of multi-party rule, the exercise of citizen’s rights, with political freedom in particular,
has been restricted. The 1992 Constitution erased the concept of a “State of proletarian
dictatorship” and changes it into the “State of the people, from the people and for the people”.
Furthermore, the word “human rights” (quyen con nguoi), which had been rejected before,
was provided for in the Constitution. The following questions emerge with regard to theintroduction of the category of “human rights” in the Constitution:
The first question is why “human rights” was introduced into the 1992 Constitution. The
reason for Vietnam to adopt a “human rights” category in the early 1990s has not been clear.
However, one may mention that at that time Vietnam had already ratified the two International
Covenants. Another reason may have been the rise of radical reformists who advocated pluralismon the occasion of the collapse of socialist countries in 1989, and another group of reformists
who received influence from the first group. They may have demanded that the draft constitution
include provisions on a “human rights” category. In fact, during the last phase of the drafting
process, the conservatives attacked the attempt to introduce a “human rights” category into theConstitution. As a result, the provisions on “human rights” were adopted in a way quite different
from the earlier drafts. The conservatives managed to remove any trace of “human rights” as“natural rights” from the provisions by integrating “human rights” into “citizen’s rights”. They
1 Translated from the Japanese by Teilee Kuong (Associate Professor, Center for Asian Legal Exchange,

Nagoya University). Further assistance was provided by Matthew Linley (Researcher, Center for Asian
Legal Exchange, Nagoya University).

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Center for Asian Legal Exchange, Nagoya University CALE Books 2

succeeded in inserting the category of “human rights” into the chapter on the conventionalsocialist fundamental citizen’s rights under the title of “citizen’s rights”.
The second question is why general provisions on “human rights” and “citizen’s rights”
were provided for separately in Art.50 and Art.51. The previous Vietnamese constitutions only
contained provisions on “citizen’s rights”. There was only one single article on this issue. In
contrast, the first three drafts of the new Constitution separately mentioned “human rights”
and “citizen’s rights” in different provisions, resulting in the final separation of the two articles.
However, since the 1992 Constitution considers “human rights” as being included in the chapter
on “citizen’s rights”, there is logically little significance in separating the two articles. Yet,
based on requests by the reformists, the word “human rights” remains and two articles wereleft separate as before. Therefore, the position of “human rights” provisions in Art.50 of thecurrent Vietnamese Constitution of 1992 is extremely unclear.
As we have observed so far, when the Constitution was adopted in 1992, the contents of
the “human rights” provision were a major retreat from what had been in the earlier drafts.
However, new theories about “human rights” in Vietnam took shape within the subsequentenvironment surrounding the country.
When one considers human rights theory in Vietnam, one needs to pay attention to thetrends and views of the Human Rights Center of the Ho Chi Minh National Political Academy.
As one can tell from its name, the Ho Chi Minh National Political Academy has been serving
as a school of the political party. But based on a proposal by the Deputy Prime Minister, a“Human Rights Center” was established in 1995 inside this traditionally Marxist- Leninist
institution.
The Human Rights Center has the following mandate:(1) To conduct studies on human rights theories and history of the world;(2) To conduct studies on how to implement human rights provisions;(3) To cooperate with national and international research centers on human rights;(4) To organize seminars and conferences on human rights research and education;(5) To develop books and materials for human rights awareness; &(6) To conduct post-graduate education.
As a result of the establishment of this Center, there has been stronger engagement in
human rights research. One of the examples is that the Institute of State and Law, which is thelargest law research institute in Vietnam, also followed suit and established a new humanrights department.
Human rights theories in contemporary Vietnam are generally explained in the following
way. I will introduce these arguments based on a publication issued by the Human Rights
Center. According to that publication, Ho Chi Minh emphasized the close conceptual linkage
between “the sacred national right (quyen dan toc)” and the “fundamental human rights (quyen
co ban cua con nguoi)”. It is pointed out that this view was later developed into the “fundamental
national rights (quyen dan toc co ban)”. The publication also puts emphasis on “the right tolife”, and introduces the viewpoints expressed by Singaporean politicians that “the right todevelopment is a fundamental right” given the condition of poverty in Asia. In addition, it
states that while “human rights” is a universal term for all human beings, it is at the same timea term for the whole of Vietnamese nationals in their long struggle for independence, freedom
and happiness”.
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Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal Assistance

Characteristics of human rights terminology in Vietnam today imply the following:(1) Revival of the concept of “fundamental national rights” used during their wars ofnational liberation against the United States, placing it in the center of human rights
theory;(2) Emphasis on the argument that “human rights is an internal matter”;(3) Reference to the “right to development” of the “nation”.
Furthermore, with regard to democracy, there emerged controversies concerning the conceptof the “State based on law”. At around the time of the 7th Party Congress in Vietnam in 1991,
Do Muoi, then Secretary-General of the Communist Party, and people around him started
using the concept of “State based on law” as a slogan in parallel with the notion of “socialist
legality”. Although the phrase “socialist State based on law” (nha nuoc phap quyen xa hoi chu
nghia) had already been used together with the concept of “State based on law” in Vietnamese
legal literature for a while, its official use only started to emerge in the papers of the 8th Party
Congress in 1996. It was used to emphasize the “socialist” factor. Together with “socialist
democracy” (dan chu xa hoi chu nghia) and “socialist legality” (phap che xa hoi chu nghia), it
helps stress the way of a “unified” State authority based on the socialist theory of State-building.

2. The Position of “Human Rights” and “Democracy” in Legal Assistance
Activities(1) Debates About “Asian Democracy” and “Asian Human Rights”
This report looks into human rights as “norms” and seeks to understand them as something
having “objective characteristics”.
Discussions about the issue of “Asian human rights” have close theoretical links with theway one understands “the third generation of human rights”, in particular the “right todevelopment”. Research on these questions finally takes on a serious dimension in Japan.
Okada Nobuhiro’s work on the third generation of human rights is significant as a review of
the “third generation of human rights” from the constitutional law perspective.
In his essay, Okada reviews both critical theories (by Donnelly, Sudre, Rivero) against the“third generation of human rights” and complimentary theories (by Vasak, Rousseau). He
emphasizes the importance of clarifying the subject of rights, the targets and the bearer of
responsibilities, stating that since human rights are “rights of the human being” as an individual,
the existence of groups or communities must be considered a tool to ensure fulfillment ofthese human rights, as pointed out in these critical theories. This argument is closely relevantto the themes of constitutional studies, which focus on reviews of concrete cases of infringement
on individual’s rights as may in fact occur under the name of “the right to development”.
Aoki Tamotsu questions the persuasiveness of a kind of comparative study which pitches
Japanese “communitarianism” and a “culture of shame” against the Western “individualism”
and “culture of punishment”. He reviews the work of Ruth Benedict, Kato Shuichi, Umesao
Tadao, and states that, for instance, “individualism” is also detectable in Thai society, as acountry in Asia. He thus points out the problematic nature of this formula.
The claim of “Asian human rights” is conditioned by the concept of “Asian values”. However,Aoki also points out that “Asian human rights” in this context includes the “Japanese way ofbusiness management”, its “family-oriented social system”, the “Asian system of decision— 73 —Center for Asian Legal Exchange, Nagoya University CALE Books 2making based on consensus without votes”, “the Japanese spirit”, and “communitarianism”.
In other words, this line of thinking attempts to draw an active interpretation of somethingcalled “the Asian way”, and it seeks to approach “human rights” on this basis. In concreteterms, it maintains the stance that, for the sake of development, the imposition of restrictions
on “human rights”, particularly spiritual and political freedoms, is inevitable. The special
feature of this approach is to explicitly advocate the concept of “overall national interests” or“national polity” embodied in the “Achievements of the Revolution” (in the case of Vietnam)
and “Panchasila” (in the case of Indonesia). This principle for restricting the exercise of humanrights is mainly for the purpose of realizing a policy of “development first”. In addition, thistheory on democracy is based on the understanding that governance by an outstanding leader
is itself important, and anything that ends up with good results is in and of itself good. In termsof relations with the outside world, human rights issues are claimed to be internal matters of
the “State” concerned, featuring the tendency to protest against “interference in domestic
matters” for the cause of human rights. This argument also embraces the understanding thatthe guarantee of the right to life is the first priority whereas respect for civil and political
freedoms is only guaranteed after this a priori right has been protected. In general, byconceptualizing “Asian human rights” based on contents which are in contrast to “Westernhuman rights”, this argument even leads to cases of attacks and complaints against the Universal
Declaration on Human Rights and other international human rights instruments. However,apart from some leaders like Lee Kuan Yew and Mahathir Mohammad, not many leaders ofAsian countries resort to the use of phrases like “Asian human rights”, “Chinese human rights”,“Vietnamese human rights”, etc.
Behind the claims of “Asian human rights” lies the need to move towards modernizationand to overcome poverty in the process of fighting for decolonization and independence. For
some Asian countries, there exists also a history of serving as the counter-revolutionary “front”
during the “Cold War”.
However, things really began to change with the advent of China and Vietnam calling for“reforms and openness” and their adoption of the policy of “developmentalism” after 1989. At
this time, the need to maintain socialism and the occurrence of various problems thereof became
obvious in Asian socialist countries. Worries were exacerbated by the beginning of the processthat eventually led to the collapse of socialist countries in East Europe and the Soviet Union.
Further, mainly after the 1990s, assistance received from the West had complicated influences,
for instance, upon the way human rights arguments were formed in Vietnam. These facts arelinked to the controversial questions of why Vietnam introduced a “human rights” category
into the Constitution of 1992, and, notwithstanding this, why it then tried to theoretically playdown the significance of this “human right” category.
The theory on “a Confucianist cultural area” arose after the 1980s as an argument to “seeka suitable explanation” for the phenomenon of rapid economic development in the Asian NIES
and to respond to the “age of Japamerica2 ”. This suggested an approach to the theory of Asia
within the framework of civilization. Through the use of such keywords as “communitarianism”
and “learning-based society”, and as alternatives to “Western individualism”, emphases weremade on Asian “communitarianism” and on responsibility rather than rights in the “rights vs
2 The thinking that Japan is economically catching up and overtaking the US hegemony.

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Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal Assistance

responsibility” dichotomy. It was even claimed that this very type of society itself is mostsuitable for capitalist development. However, after the “Asian crisis”, such views lost theirpractical grounds. In their place were arguments that “these theories stood on their own head”
or that “Asia is diverse”. Yet, there remain a number of theorists who support the theory of “aConfucianist cultural area”. Nevertheless, the important thing which we should pay attention
to is that, more than anything else, the theory of “Confucianist cultural area” was brought up
just to re-focus “Japan” studies and the study of the “Japanese Constitution”. Therefore, one
can also say that the Japanese theory of a contemporary Asia is a miniature of the theory on
contemporary Japan.

(2) GovernanceRealization of “good governance” is an objective condition for moving towards realizing
the “rule of law” premises in Asian countries in transition. Legal assistance projects in thefield of governance, such as reform of the civil service institutions and administrative reform,
etc, are to take place in some Central Asian countries like the Kyrgyz Republic. In Vietnam, incooperation with the National Academy of Public Administration, we are planning to organize
an international symposium on “Administrative Reform and Law” at the end of December
2004. These and other instances show that engagement in this field is increasing.

3. What Do “Human Rights” and “Democracy” Contribute to Legal
Assistance Studies?
In an international symposium on “International Cooperation in the Field of Legal Studies
and an Agenda for Comparative Law Studies - Experiences of Legal Assistance to Countries
in Transition” held in Japan in May 2004, some issues related to legal assistance and comparative
law studies were identified in the reports presented by foreign speakers. The topics presented
at the Symposium were as follows:(1) Robert K. Goldman (American University, USA), “Some Reflections on Lessons
learned from U.S. and International Financial Institutions’ Efforts Promoting Legal
Reform in Countries in Transition”;(2) Martin Lau (London University, UK), “The Role of Islam in the Reconstruction of
Afghanistan’s Legal System”;(3) Penelope Nicholson (University of Melbourne, Australia), “Distinguishing Law andDevelopment: Legal Assistance in Asia and the Vietnamese Courts”;(4) Herwig Roggemann (Free University of Berlin), “Differences in Legal Tradition and
Legal Culture in Post Socialist Eastern and Western Europe as a Problem of Comparative
Law”;(5) Gábor HAMZA (Eötvös Loránd University), “New Trends of Codification of Civil(Private) Law in Central and Eastern Europe”.
The objective of holding the International Symposium in May was to clarify the following
questions, based on the Japanese experience of theorization and practice with regard to thelegal assistance studies:(1) What are the implications of building a legal system, training legal professionals anddeveloping legal education, etc?
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Center for Asian Legal Exchange, Nagoya University CALE Books 2(2) Are there any new implications in the debates about “traditional law”, “reception oflaw” and “transplantation of law” in the present context of globalization andregionalization?
(3) What do legal assistance activities have to contribute to comparative law studies ingeneral?
Foreign guest speakers reported on the situation of the following countries: Latin Americancountries, Russia, Germany, Hungary, Bulgaria, Croatia, Italy, Afghanistan, Cambodia andVietnam, etc. Subjects targeted in these reports included legal assistance, and legal
harmonization, etc. Speakers from Europe and the United States were deeply involved inresearching and practicing legal assistance activities in these diversified regions.
Many issues were brought up for discussions at the Symposium. It is not possible to mention
all the details here, but I would like to touch upon some important points as follows:First, as stated by Professor Goldman from the United States, one should learn from the“past” of legal assistance activities, including the past track record of the “law and development
movement” in the United States. This is also related to the issues pointed out by Professor
Nicholson from Australia, posing the question of whether legal assistance projects developed
at present by different bilateral and multilateral aid organizations at the global level are different,
to any significant extent, from the nature of the “law and development movement” from the
1960s to the 1970s. Although I hold a different view from that of Nicholson, her critical viewon the possibility of implementing legal reforms without following political reforms poses animportant question to the agenda of legal assistance studies.
Second, Professor Lau from the United Kingdom presented his report based on his practicalexperiences in conducting legal assistance activities in Afghanistan. He pointed out the gap
and differences between urban and rural areas and the existence of informal law. Furthermore,
the question of whether it is good to launch legal reform only to satisfy international society,or the suggestion that what is longed for now in Afghanistan is not human rights but security,
brings up the core issue in legal assistance studies. In other words, it involves the argumentthat donors must familiarize themselves well in the local realities of the recipient countries
before making judgment on what should be assisted.
Third, based on the historical experience of German unification, Professor Roggemann from
Germany pointed out the question of how to consider the law of the former East Germany whichused to exist as socialist law. Touching on the issue of legal tradition in Eastern and Central
Europe, the tradition of democracy and the role of the Constitutional Courts, etc, he alsoemphasized the importance of comparative law studies to be applied in reviewing the unificationof law in Germany. Professor Hamza from Hungary reviewed the phenomenon of the “receptionof law” from an empirical and comparative approach, focusing on the field of private law. He
discussed the mutual influences which different countries have on each other through law andpointed out that law has a significant impact upon the political and economic spheres. This viewis extremely interesting, given its relevance to that of Professor Nicholson mentioned above
posing the issue of whether or not legal reforms are possible without political reforms.
Then from the floor, a number of issues were raised which led to rich discussions.
(1) A question was asked about Nicholson’s report on whether or not one may conceive ofan Asian version of “judicial independence” in Vietnam where an “independent
judiciary” does not in fact exist.
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Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal Assistance(2) From the view of legal assistance and the resulting phenomenon of legal inflation,
what is the legitimacy of legal assistance activities? Will the US-styled “rule of law”
survive?
(3) The need to study the Islamic system of dispute settlement.
(4) How does one consider legal assistance in environmental protection, given the present
reality of land problems of developing countries in Asia?
Discussion on problems of “human rights” and “democracy” should start from theirrelevance to those concrete questions of legal assistance activities mentioned above.

4. What is Legal Assistance? – Reviewing the Philosophy Behind It
The Japanese government started its legal assistance to countries in Asia in December
1996. The first country to receive this assistance was Vietnam, where Japanese legal assistance
was focused on the field of civil and commercial laws. Legal assistance then started in Cambodia
in March 1999. As will be discussed later, the initial activities there were to draft the Civil andCivil Procedural Codes. Legal assistance was formally launched in Laos in 2003. In addition,
assistance has recently been provided to Uzbekistan in the field of legal education and Mongoliain the field of land law.
I am going to examine how these legal assistance activities have been conducted so far, by
focusing on a comparative study of the assistance provided by three donor countries - Sweden,
Korea and Japan.
Sweden started providing legal assistance to Vietnam in the late 1980s and has become
vigorously engaged since 1992. The most systematic presentation of the essence of thisassistance can be found in a book edited by Par Sevastik in 1997 entitled “Legal Assistance toDeveloping Countries – Swedish Perspectives on the Rule of Law”, Kluwer Law International.
However, since it was published 7 years ago in 1997, we may need to contact the Sida field
office or researchers from Lund University for more updated information. The Swedish aid
agency has been developing a consistent project to promote the “rule of law” in Vietnam forthe last 10 years. It was stated in the project that the idea of the assistance was to promote“democracy”, “human rights”, “rule of law”, and “due process”. Swedish Sida has been engaged
in this project since 1992 and Omeo University, and later Lund University, has been the key
agency in implementing this project. The project puts tremendous emphasis on strengthening
legal education. Assistance is provided to legal education based on the philosophy mentioned
above, focusing in particular on the revision of the curriculum and teaching methodology.
Statements made by persons involved in Swedish aid activities, as cited by the book above, isvery suggestive. “(M)arket economy is a necessary albeit not sufficient condition for thedevelopment of democracy and the formation of a Rule of Law/Due Process”3 , i.e., it isimportant to acknowledge that democracy, rule of law and due process need be set as separate
subjects of their own right. Furthermore, it is also stated that “Sweden does not have any
interest in exporting its own legal system to Vietnam or in writing the laws of the country”4 .
3 Par Sevastik ed., Legal Assistance to Developing Countries – Swedish Perspectives on the Rule of Law,KLUWER LAW INTERNATIONAL, 1997, at 6.
4 Id. at 10.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2

I think that the Swedish way of providing assistance is a typical one in the field of legal
assistance.
The second case to present here is that of the Korea International Cooperation Agency(KOICA). KOICA explicitly locates legal assistance activities in the framework of “national
strategic projects”. KOICA started its legal assistance program in 2002. An International
Conference on Reconstruction Assistance to Afghanistan was held in Tokyo in January 2002.
Korea took that opportunity to commit assistance to the judicial sector of Afghanistan, when
the agenda was presented to the Conference. What I am going to present here was first brought
to my attention by Professor Suh Won Woo, Professor Emeritus of Seoul National University.
According to the Korean law newspaper (dated December 16, 2002), export of legal culture isa national strategic project which costs little but is highly efficient. In addition, legal assistanceto countries in Asia is said to be an accumulation of experiences in preparation for effective
transformation of the legal system of North Korea after unification. Its target countries arethose in the former Soviet Union and in Asia. It intends to provide assistance to all legal target
areas, ranging from the Constitution to the Criminal Law.
The third case is related to Japanese assistance. Japan also has had experiences in providing
legal assistance to Vietnam or other regions. However, here I wish to briefly mention theJapanese assistance to Cambodia in drafting the Cambodian Civil Procedural Code. In a roundtable talk on the “Current Situation and Future Challenges of Legal Assistance – Assistance inDrafting the Cambodian Civil Procedural Law” reported in the Jurist (in Japanese no.1243,
2003), moderated by Uehara Toshio, participants convey an extremely interesting message forlegal assistance studies. The question posed in this round table talk was how we should evaluate
the experience of Japan providing concrete drafting assistance to a Civil Procedural Code, oneof the specific fields belonging to the legal system of another country, while keeping good
cooperation with local judicial officers. Since the talk was extremely long, I will only raisesome points which are relevant to my matter of interest. First, concerns the question concerning
the relationship between legal assistance on the one hand, and a “democratic and law-based
State” and the “rule of law” on the other. Views were expressed at the talk that we should not
approach legal assistance only from a narrow view of economic transition5 , but should also
approach it in the context of pursuing for a higher achievement aimed at promoting a democraticState based on law6 . My understanding is that the talk reveals the need for a clearer philosophyof legal assistance.
The second issue relates to the background of legal assistance. This focuses on the belated
development of the social infrastructure which is needed to back up the legal system. It wasstated that assistance should be for the building of this infrastructure.
The third issue discussed at the talk concerned the question of legal transplantation, i.e.,
what country the drafting of Cambodia’s new Civil Procedural Code should be modeled on.
Since Japan implements this project, participants at the talk agreed that there was no otherchoice than using Japanese law as the basis for the assistance. However, emphasis was put on
the need to conduct the assistance by taking into consideration the local legal situation. Japan
5 Emphasis by the author.
6 See JURIST, id. summary by Professor Uehara after listening to the statement made by Professor Takeshita

Morio.

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Human Rights and Democracy in Vietnam: Some Thoughts on the Philosophy of Legal Assistanceshould disseminate the information from Japan in conformity with the reality of the recipient
country. For example, a jury system was proposed for the draft but was later dropped. Anotherexample is the introduction of a provision to retain the existing incidental civil litigation attachedto the criminal procedure7 .
To sum up, I want to make the two following points:
First, after finishing a comparison of the three countries, we may say that different countries
or international aid agencies base their assistance on different philosophies and measures ofgravity.
Second, I think that a new trend of thought is emerging inside Japan. So far, Japanese legal
assistance has been directed towards promoting a market economy in the recipient countries,
focusing mainly on the civil and commercial areas of law. But as we have seen above, someresearchers who led the project on drafting the Civil Procedural Code in Cambodia are now
talking about the need to further clarify the purpose of the assistance by including the topics of“democratic State based on law” and the “rule of law”. It is within such a context that I
characterize this as a new trend of thought. However, we need to observe more carefully and in
more details before we can judge whether the new trend will lead Japanese assistance tobecoming comparatively similar to that of Sweden. Undoubtedly, the Swedish approach is afull presentation of the issues of “human rights”, “democracy”, or “gender”. This is exactly
what makes the two cases so different.
This in fact begs the question of what information Japan can really disseminate when itchooses to provide legal assistance to a foreign country, and what area of law Japan can target
for this information dissemination work.

7 Id. at 74.

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Development and Democracy from a Viewpoint ofInternational Law
Maki Nishiumi
Introduction
The main objectives of this International Symposium entitled “the role of law indevelopment” seems to consider what was, and what should be, the role of law in the promotionof development and the realization of democracy in various countries (especially developing
countries), in terms of straightening out their legal system. By contrast to this, in this report,
the role of law in development and democracy will be considered in terms of international law.
In the following, will be introduced successively “international law of development”, “right todevelopment” and “sustainable development”, which all constitute an important contribution
to contemporary international law concerning development and democracy.

1. International law of development / droit international du développement
History of international law of development
International Law of Development is a theory of international law which tries to reduce
disparity of development between developed and developing countries, or to realize economic
independance of developing countries. It is an approach of international law to the NorthSouth problem. André Philip, French representative to the first UNCTAD in 1964 used for the
first time this term and insisted that developed countries should cooperate with developing
countries for the purpose of modernization of their economies. After that, mainly francophonescholars such as Michel Virally, Maurice Flory, Alain Pellet, Guy Feuer and Hervé Cassan
made respectively great effort to systemize this new branch of international law.
The characteristics of this law can be summarized as follows. First, objective -oriented law(droit orienté) in the sens that this law intends to transform actual international economic
system which is not in favor of developing countries, or to promote effective realization ofeach development program. Second, composite law (droit composite) in the sense that this law
consists of international law, municipal law and transnational law. Third, contested law (droit
contesté) because having a tendency to intervene in favor of developing countries, this law issusceptible of objection on the part of developed countries which persist in liberal model of
economic relations.
Three principles support international law of development : Sovereingty, Equality and
Solidarity. Economic aspect of sovereignty is emphasized for the purpose of establishingautonomous economy of developing countries (for example, permanet sovereignty for natural
ressources and economic activities). As to equality, not only traditional equality (equal
participation to economic decision-making for example), but especially substantive equality
which gives differential favorable treatments to developing countries has a great importance.
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Center for Asian Legal Exchange, Nagoya University CALE Books 2And solidarity means cooperation of all countries but particularly of developed countries,
indispensable to assure such sovereignty and equality for developing countries. We can easily
note that the idea to establish law and institutions favorable to developing countries exists
coherently throughout these principles.
As examples of implementation of international law of development, we can enumeratePart IV of GATT, Generalized System of Preference, Regime of deep sea-bed elaborated in
the United Nations Convention of Law of the Sea. But in general, we cannot say that objectivesof this law, such as reduction of North-South disparity or establishing autonomous economy
of developing countries have been achieved. With the end of the Cold War, market economy orfree trade tendency has been à la mode, and in consequence vivacity of this law has weakened.
Not a little of norms of this law remained in fact lex ferenda, not becoming lex lata, positiverules of international law.
However, the signification of international law of development is not small. By breaking
away formalistic and abstractive character of traditional international law, recognizing realities
often contradictory to this formality and orienting protection of weaker countries, internationallaw of development introduced certainly new approach to contemporary international law.
The idea of this law is succeeded in the “special and differential treatment” of the WTO
agreements, and “Common but differential responsibility” principle of the international lawof environment.

Key concept of international law of development : substantive equality
We said that substantive equality which gives differentiated favorable treatments todeveloping countries has a great importance. This is a concept to ensure the equal result in the
law-application level, by taking into consideration the inequality of development which exists
between developed and developing countries and, consequently, by admitting a favorable
treatment for developing countries.
The real movement requiring substantive equality began in 1960s, when developing countries
born after decolonization sought their economic independence and reduction of North-Southdisparity. Traditional, formal equality principle ignores de facto difference between countries
and treats them the same, which works more or less to protect the sovereignty of smaller andweaker countries. But this principle does not consider realization of equal result of lawapplication. Therefore, if this principle is applied directly to the relation between developed
and developing countries, it will not at all assure equal result but paradoxically enlarge existing
inequality between them. That is why developing countries require with perseverance thissubstantive equality in their relationship with developed countries.
According to the theory of international law of development, substantive equality realizes
itself by differential treatment in favor of relatively weak countries which can be regarded asa kind of compensation of inequal development. First, countries are classified into two
categories, developed/developing countries and rights and obligations in favor of developing
countries as relatively weak ones are created and applied (for example non-reciprocity insteadof reciprocity, preferencial treatment instead of most-favor-nation treatment). This is the« duality of norms ». Second, within the category of developing countries, various subcatetgories are established (least developed country, land-locked country, island country, regimechanging country, for example), and rights and obligations are created and applied in favor of— 82 —

Development and Democracy from a Viewpoint of International Law

relatively weak countries belonging to these sub-categories. This is the « plurality of norms ».
The approach of this « plurality of norms » are introduced in generalized system ofpreference, special and differencial principles in WTO agreements, common but differencial
responsibility of the international law of environment, and is now an indispensable method toregulate the North-South legal relationship.

2. Right to development / droit au développement
Insufficiency of international law of development
We can point out two insufficiency of international law of development. First, it lacks
consideration of linkage between national inequality and international inequality. Indeed, there
is a linkage between democratization of international order and democratization of national
regime. But the declaration of the New International Economic Order, which reflects profoundly
the idea of international law of development, did not have a clear-cut mention about importanceof democratization of internal order or equitable distribution of national ressources. The reason
is probably that the Third-world political leaders, who require the new international economicorder, avoided intentionally reference to internal power structure, because saying this problem
would have destabilized their own foundation of powers. This situation can be justified in thelevel of international law by respect of state sovereignty and non-intervention in internal affairsof other state. So in international law of development, the power structure of developing
countries is almost neglected or analysed very optimistically. Its world power image relies on
simply dichotomous Center/Periphery model, It does not look at internal situation of periphery
where exists also center/periphery and consequently domination/subordination phenomenon.
Second insufficiency concerns the function of « plurality of norms ». It attenuates various
obligations of relatively weak parties on the one hand, and strengthens at the same time
obligations of relatively strong parties in the sphere of financing or technical cooperations on
the other hand. The attenuation of obligation would favor certainly developing countries in ashort term, but it damages the objectives of each treaty such as protection of global environment
or protection of worker’s rights. So, from a view-point of objectives of treaties, the eliminationof this type of « plurality of norms » (= attenuation of obligations of relatively weaker parties)
through financing or technological cooperation is desirable. « Plurality of norms » is not all
mighty. There is limits derived from the difference between individual as beneficiary andstates as actor of implementation of treaties.

Characteristics of right to development
Right to development is an attempt to surmount these insufficiency. The term « development » in this right does not mean only economic aspect such as economic growth. It contains
political, social, cultural aspects. Therefore it is a comprehensive concept and concerns thetotal process of realization of human potentiality. Right to development is a new right. It was
adopted in resolution by General Assembly of the United Nations in 1986. This adoption
signifies that request to this process was authorized as an objective of international community
as a whole.
There are three characteristics of this right. First, right to development is an ensemble ofhuman rights. It reconstitutes various human rights from the view-point of human development— 83 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

and aims to assure effectively these human rights. Second, this right should be implemented
not only by individual states but also through the cooperation of international community as awhole. So we can call this right « right of solidarity ». Third, in the center of this right, there
exists participation of individuals and people to the decision-making. By this participation, allhuman rights are harmonized, development policies ameliorated and democratizations ofinternal/international social/economic/political regimes promoted.
However, this right to development is a right in formation. Actors and contents of this rightand those of corresponding obligations are not yet sufficiently clear. Nevertheless, this rightsuggests a possibility to surmount the insufficiency of international law of development derived
from its character of inter-state agreement. In this sense, this right is very important potential
future.

3. Sustainable development / développement durable
The attempt to coordinate development and protection of environment leads to the conceptof sustainable development. This concept is also very comprehensive one. Among componentsof this concept, there are : sustainable use and preservation of natural resources, equity inter/
intra generations, common but differential responsibility, good governance, precautionary
principle etc. These components are incorporated in various international documents such as
Rio Declaration, Agenda 21, Convention of Biodiversity, Framework Convention of Climate
Change etc. But about contents of these components and their legal characters, consents ofcountries are not yet precisely established. We can say that the concept of sustainable
development became a legal principle, but its range and effectiveness are largely unknown. So
we must await accumulation of international/internal practices in this regard. Nevertheless,the concept of sustainable development is used frequently in various international documents
and adopted as criteria of judgment or opinion, in international dispute-settlement organizations(ICJ, WTO, ITLOS etc).
In another aspect, this concept is very ethical one, in the sense that : (1) it takes into
consideration the quality of life of not only existing human being, but also human being in
future. (2) on the one hand, it insists the necessity of development and good governance forpoor people in South who are deprived of main means of subsistence ; (3) on the other hand, it
demands the change of life-style for rich people of North not yet abandoning their wastefulway of life. Sustainable development is a comprehensive concept which synthesizes
environmental protection, development and democracy. Contemporary international law is
expected to enrich this important concept through collaboration with other disciplines, andmake it gradually positive rules.
International lawyer is required to collaborate with other lawyers in the important work ofstraightening out the legal system in developing countries. In this work, I hope above-mentioned
international aspects of development and democracy should be taken into consideration.

Reference
ITO Kazuyori, Review of International Law of Development, 12 HONGO-HOSEI-KIYO, 2004.
NISHIUMI Maki, North-South Problem and International Legislation, 95 KOKUSAHO-GAIKO-ZASSHI, 1997.

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Development and Democracy from a Viewpoint of International Law

NISHIUIMI Maki, Controversy of International Law of Development, HOGAKU TO SEIJIGAKU NO SHOSO,
1989.
Mohammed BEDJAOUI, droit international et développement, DROIT INTERNATIONAL BILAN ET PERSPECTIVES,
Pedone, 1991.
Maurice FLORY, Ahmed MAHIOU, Jean Robert HENRY éd., LA FORMATION DES NORMS EN DROIT
INTERNATIONAL DU DévELOPPEMENT , CNRS, 1984.
Mohammed BEDJAOUI, « le droit au développement », DROIT INTERNATIONAL BILAN ET PERSPECTIVES,
Pedone, 1991.
MATSUI Yoshiro, The road to sustainable development : evolution of the concept of development in theUN, Konrad Ginther, Erik Denters and Paul J.I.M. de Waart eds., SUTAINABLE DEVELOPMENT AND GOOD
GOVERNANCE, Martinus Nijhoff, 1995.
MATSUI Yoshiro, The Principle of Common but Differentiated Responsibilities, Nico Schrijver andFriedl Weiss eds., INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT, Martinus Nijhoff, 2004.
NISHIUMI Maki, Legal Signification of Sustainable Development, 109(5/6) HOGAKUSHINPO, 2003.
NISHIMURA Tomoaki, Concept of Sustainable Development in Contemporary International Law, 22
HOSEIRONSHU, 2004.

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Improving Legal Transparency:
The Translation Project of Japanese Law and
the Prospect of New Comparative Law
Yoshiharu Matsuura
Introduction: Seriously Imperfect Information
Since the 1990s Japan has been engaged in the legal reform assistance to the developing
countries and countries in transition to market economy. The legal reform assistance includes
such projects as codification of basic laws, re-structuring of the court system, reform ofadministration of justice, land law reform and so forth. Further, education and enlightenmentof the elites of these countries who will take the initiative in legal reform projects are one of
the most important ways of assistance. All these projects strive for good governance andeconomic growth of these countries.
The elites of the recipient countries in fact showed remarkable enthusiasm to learn fromJapan and expressed high expectation to share the experience and lessons of modernizationand economic success of Japan. In case of Nagoya University Law Faculty, the faculty hosted
diverse opportunities for judges, attorneys, prosecutors, public officials, law professors andlaw students of these countries. Currently one hundred overseas students are enrolled in thegraduate programs of law at Nagoya.
As soon as the technical assistance projects began, everybody quickly noticed one major
problem. It is the fact that laws and related legal documents of Japan are not readily accessible
to visitors from overseas who are eager to learn from the Japanese experience. Almost all thelegal documents are there but they are available mostly in the Japanese language. Translated
documents, such as laws, law review articles, cases and government papers, are often outdated
and fragmental and thus do not describe the current Japanese law. In this sense Japan is notprepared for effective dissemination of her “unique” experience about law.
Though visitors from countries in transition usually have good command of English orother foreign languages, only a few can read the Japanese legal text which is often writtenwith archaic terms and phrases. As a result, those who wish to learn from the Japanese experience
are obliged to rely heavily on the oral communication such as interview. Interviews often
provide the public officials and practitioners of countries in transition with some importantand current information about Japanese law. But the situation is very serious for degree
candidates, for they have very limited primary and secondary sources they could use in theiracademic works.
In addition, the information about the laws of a recipient country is often imperfect. Laws
of Asian countries are mostly written in their native languages such as in Vietnamese, Laotianor Khmer. Like Japanese law, translation of their legal documents is very limited and fragmental.
This fact has profound implication for legal reform assistance. Projects of legal reform assistance— 87 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

are usually conducted through some sort of comparative law method. In order to makemeaningful comparison we need accurate information of two different legal systems. Feasible
and relevant assistance becomes possible only when both the donor and the recipient countries
understand the mechanism and function of respective legal system to a fair degree.
This is the reason for growing awareness of the importance to translate laws and statutes in
Asian countries, including Japan. In fact there has been strong demand for more information
about Japanese law in English. Demand came from various sources, such as the legal reform
assistance projects, business world, government, and institutions for advanced education. In
2004 the Japanese government at long last made decision to promote the translation project1.
The focus of the translation project of Japan is set upon the codes and statutes. Because theblack letter law is always, at least in the Continental legal tradition, the starting point and thecore of serious legal research and legal thinking.
In the following, the author will describe the overall plan of the translation project andargue that the translated black letter law could become a platform to develop a comparative
study of law where both donor and recipient countries can contribute and share the fruits of
the research.

2. Real Challenges to the Translation Project
The demand for translation of laws and statutes of Japan is not new. In the past many
people and institutions attempted to produce decent translation of the Japanese law. In fact we
can find some good translations of laws and statutes. The real challenge to the translation
project is, however, to keep the pace with amendments and changes continually added to theoriginal text of law. Many past attempts of translation were short-lived mainly because they
were not prepared for the fact that laws are always amended, repealed and newly enacted. The
work of updating the translation has no end and demands the tremendous commitment on thepart of the project promoters. There is no functioning system that can timely meet this challenge.
Therefore, it is essential for the success of the translation project to design the system
which has a built-in mechanism to reflect any change in current law without delay. The system
must tell whether the translation available is the translation of current and valid law or not.
This is easy to say. In order to implement the translation system with this function, however, itis necessary to introduce the elaborate data-management system to monitor the whole body oflaw of one country.
The translation framework under development by a Nagoya University team consists of
two parts. The first part is a comprehensive statutory management system which supports thedrafting process of new laws and stores the past records of laws and statutes. It also provides
the current information about Japanese law in the Japanese language. The second part is thesystem that generates the English translation of the Japanese law. Two parts are to be integrated
so that they could keep pace with any change in the original text of Japanese law. The figure 1
is a rough illustration of the translation project.
Currently the Japanese government offers via internet free information of current laws and
1 See the Feb. 15, 2005 issue of JURISUTO (JURIST) which featured the articles on the translation project ofJapanese law by the government initiative.

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Improving Legal Transparency: The Translation Project of Japanese Law and the Prospect of New Comparative Law

System for
Quality Translation of Laws

Comprehensive
Statutory Management System(Drafting of New Bills & Amendments,
Promulgation, and Archives)

Figure 1. Core concept of the whole projectstatutes in Japanese2. It is a fairly accurate approximation to the current Japanese law andfrequently used to identify the current black letter law. It is also used by drafters of new bills.
But it is not easy to identify what part of the law was recently modified and what words were
replaced, deleted or added. Nor is it easy to know which provisions are brand-new.
In order to use the current government service as the foundation of the translation project,
it is necessary to modify or re-design the government system so that it should provide authentic
text of current law as well as specific information as to the changes in laws and statutes. The
translation system is to be erected upon this firm foundation. If the government system does
not offer this service, it will become necessary to develop a statutes data-base which canprovide information essential to the translation project.
Creating a human network to produce translation continuously is another challenge.
Translation projects of the European Union and the French government operate on theestablished policy to employ professional translators who are native speakers of the target
language (for example, a native speaker of English, in case of translation of French text into
English). In addition they require translators to have a college degree and fair understandingof legal science. This policy sounds quite reasonable, if the required human resources are
actually available.
In case of Japan, we do not have sufficient number of native speakers of English who canread and understand the Japanese legal documents. The European approach does not seem tobe feasible in Japan. Many countries in Asia may face the same difficulty when they try totranslate their laws into English.
One possibility to clear this hurdle is to utilize information technology. Since the Nagoya
project plans to use information technology extensively, the author shall discuss, in the next
section, how information technology will be utilized.

2 http://law.e-gov.go.jp/cgi-bin/idxsearch.cgi— 89 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

3. Good Translation and Information Technology
Translation of statutory provisions is not an easy task. When we review the work oftranslation already done, we can easily find some weaknesses of past efforts. For example, thesame legal term is translated in various ways mainly because many translators involved did
their work without any consideration of long term consistency. There was no official mechanism
to maintain consistent use of a legal term. The sentence style of translation varied dependingon the taste of each translator. The result was the unrefined accumulation of translated text oflaw.
The notion of version management of translation was simply missing. Since law is amended
from time to time, it is important to identify the original text of law which was actually usedby the translator. Curiously many translations did not include this information in their work
and it often became necessary to identify the year of the original text used by them. Without
this check, we feel very uneasy because we might be reading the translation of law which was
repealed long before.
Some translations are good and some are bad. But the problem is that there was no easy
way to know the quality of translation, because there was no reliable procedure to test thequality of translation.
Even when the translation of current law is fortunately available, the information may not
be sufficient. A provision of a statute may delegate the power to issue guidelines to regulations
or ordinances. In this case the translation of major statutes must be supplemented with thetranslation of other relevant regulations and ordinances. If the translation is to be socially
useful, it must include all provisions related to one particular provision. This has been donevery imperfectly.
In order to overcome the past weakness of many translation projects the Nagoya project
proposed to utilize information technology. It set off its work from construction of a reliabletranslation dictionary, because the reliable dictionary is the key to good and consistent translationof statutory text.
The project uses a tool called “Bilingual KWIC” to create the dictionary. The tool called
KWIC (Key Word In Context) has been in use for years. It can list all the relevant sentences
which include a keyword or a key expression so that we can see how a keyword is used inthese sentences. It provides the contextual information how a word is used in real sentences.
The Bilingual KWIC does this in two different languages. Suppose the Japanese Civil Codeand its English translation is available. The bilingual KWIC can show a comparative table of
the Japanese text and its English translation with a keyword high-lighted. The following figure
illustrates this function.
The above table shows how a Japanese legal term (Torikeshi) has been translated into
English. We can see from the table that the same Japanese term was translated in two English
words, “annulment” and “revocation.” A group of legal experts on the Japanese Civil Codecould use this result as a starting point to develop a reliable dictionary for translating laws andstatutes. They could decide the proper choice of English words for a particular Japanese legal
term. For example, they might maintain the use of two English words by assigning each English
word to a particular legal domain. They could decide that the word “annulment” should be
used in the context of making the marriage null and void and the word “revocation” to make— 90 —

Improving Legal Transparency: The Translation Project of Japanese Law and the Prospect of New Comparative Law

Figure 2. A sample view of the Bilingual KWIC

the testator’s will invalid. Or they might decide that only “annulment” should be used in all thelegal domains. In this way they could construct the dictionary for translation of statutes.
The Bilingual KWIC can provide not only the usage samples of words but also the samplesof idiomatic expressions. Thus, it can show how conventional expressions in legal documents
were translated. This means that we can list up English translation of all the technical terms
and conventional expressions, which in turn can be used to generate a comprehensive dictionary
and assist the work of translators.
The next step is to select more appropriate terms and expressions for the dictionary. It may
become necessary to add or coin English terms when the Bilingual KWIC does not list
candidates from the past translation. If we could organize the substantial number of legal
experts in a particular field such as the law of contract and provide the data generated by the
Bilingual KWIC, legal experts can go over the list of technical terms and expressions andactually choose the best candidates for the dictionary. In the similar way the translation
dictionary for major legal subjects will be developed.
It is to be noted that the translation dictionary will emerge not in a conventional form of abook. Rather, it will emerge as an evolving dictionary on the web. The following figure will be
useful to understand how a translation dictionary grows continuously.
When new laws or amendments pass the parliament, the text of the law is transmitted to thetranslation system. The system check the current law data-base so that it could show what part isadded or new in the Japanese text. Since the system includes the data-base of statutes with referencefunction, it can offer the information of what other provisions and subordinate regulations are
relevant to a particular provision newly added. It also tells whether the English translation isavailable or not. If available, the outdated part of the English translation will be identified.
The Japanese text of new laws or amendments is sent to translators. The translator knows
the provisions to be translated, including the ones relevant to the new laws. The translators
now use the translation dictionary which provides English expressions for particular Japaneseterms and expressions. In Fig. 2 the dictionary is described as “Knowledge for Translation,”
for it will provide far more diverse information than the conventional dictionary. The dictionary
also offers the Bilingual KWIC service so that the translators utilize the past translations(“Available Translation of Law” in Fig.2). At this stage the translator works somewhat like alawyer researching the past cases and precedents.
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Center for Asian Legal Exchange, Nagoya University CALE Books 2

Enactment orAmendmentof Law

Available in Various
Languages

Text of Law(Japanese)

Text of Law(Foreign Language)

Machine Learning
by Computer
Available Translationof Law
Law(J)

Law(English)Translation
Support
SystemDiscovery &Accumulation

Translator

Translation assistance

Knowledge forTranslation
Terms and Patterns
in Two Languages• Machine Translation• Idiomatic Expressions• Translation Patterns• Interface for Editing
Effective Translation
by Good Combinationof Professionals & Computers

Figure 3. Framework of the translation project

As soon as the translation work finishes, it will be sent to the translation system. The
system checks to what extent the translator’s work complies with the translation dictionary.
When the work satisfies the quality check by the computer system, it will be submitted to theexperts committee which tests accuracy of the translation and quality of English.
The translation endorsed by the experts committee will be published through the internetor printed for distribution. At the same time the terms and idiomatic expressions used in theendorsed translation are automatically added to the translation dictionary. The dictionary willkeep the past record such as what term was used in what period and replaced with what term.
After the publication of new translations, anybody can “challenge” the current translation
by submitting his or her alternative translation to the experts committee. If the committee
agrees, the current translation will be replaced by the proposed translation. In this way thetranslation dictionary grows continuously.

4. The Translation System and the Computer-aided Legislative Drafting
It is necessary to describe the Japanese approach to legislative drafting briefly, since it
inspired the translation project of Nagoya University. The Japanese approach strives for thenational law without contradiction, inconsistency and overlap. For example, when drafters of
new legislation use a particular legal concept in their draft, they list up all the provisions of thepast legislation which used this particular concept to avoid any deviation from the conventional
usage. For this purpose the current statutory data-base of the government is used and somedrafters characterized it as “indispensable to the drafting.” This concern with consistency isobserved in the stylistic structure of the law, numbering of provisions, punctuation and soforth. Consistency and coherence are valued most in the drafting process for many years. The
Figure 4 illustrates some critical tasks in the legislative drafting.
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Improving Legal Transparency: The Translation Project of Japanese Law and the Prospect of New Comparative Law

Parliament & Ministries
1. Review of appropriateness of the purpose of the Act
2. Legality check (the constitution and other relevant laws)
3. Amendments of provisions in other relevant laws
4. Consistency check of use of legal terms
5. Review of style, established format, idiomatic expressions etc
6. Management of current law as a whole (including dissemination of laws)
7. Management of the archive of repealed laws

Figure 4. Complex tasks involved in the legislative drafting

From the perspective of the translation project the Japanese commitment to the stylistic
completeness and long range consistency is a great advantage. The project members thought iteasier to develop a translation dictionary, given the rigid rules for drafting. For computer is fit
for rigid rules.
The drafters also work hard to identify all the provisions to be amended. In many cases aparticular provision refers to other provisions and subordinate rules explicitly or implicitly.
Amending a provision makes it necessary to amend other relevant rules at the same time. The
information of explicit as well as implicit references has been kept manually. The more complex
the cross-reference of rules becomes, the harder it becomes to maintain this information
complete.
An incidence in 2004 was symptomatic. After the time-pressed preparation of rather complex
amendments of pension laws, a set of amendment laws successfully passed the Japanese
Parliament and was duly promulgated. Soon after, more than forty mistakes, including
typographic errors, were discovered. This came as a total embarrassment to the governmentand some officers were disciplined for this irregularity. The government announced that it will
introduce the double-checking system at the earliest occasion.
This incident suggests the significance of introducing a computer-aided legislative drafting(it might be called as “e-legislation”). It should maintain the style of writing and coherence inthe whole body of law. It should provide comprehensive information of cross-reference amonglaws. In addition, it should offer the current information about Japanese law. This is what wemean by “Comprehensive Statutory Management System.” The current government site ofstatutory data-base does not fit for this purpose3.
Needless to say, commitment to consistency and coherence varies, depending on the legal
culture of each country. Centrally controlled system for legislative drafting may appear as agreat threat to regional autonomy and democracy. It may work against the more flexible growthof law.
3 There is one commercial product for e-legislation developed by CRESTEC Company. It was developed foruse by regional governments. The translation project regards this product as a prototype of e-legislation
which could be used, with some improvements, for the translation project.

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Center for Asian Legal Exchange, Nagoya University CALE Books 2Still, there is much to say for a computer-aided legislative drafting. If it is important tograsp comprehensive information about a particular provision, the cross-reference function of
the system will be far better than the manual research. If it is socially valuable to integrate
national and regional rules without too much inconsistency, both computer-aided legislative
drafting and a statutory data-base with inconsistency screening function will be very important.
Though the degree of consistency and coherence should be chosen by each country,
developing countries and countries in transition seem to need this kind of assistance. A country
like Cambodia does not have many skilled drafters of new legislation. Vietnam and Uzbekistan
appear to work hard to strike out incoherence between national laws and regional rules. So
long as the legislative drafting is done by different hands, a mechanism is necessary to achievecoherence and consistency in law.
For this reason the translation project of Nagoya University promotes a separate project toconvert the Japanese e-legislation system for other countries.

5. A New Approach to Comparative Law
The translation project has an interesting implication for comparative study of law.
Translation of the black letter law does not provide extensive information about one legal
system, rather it only scratches the surface. For example, it is easy to translate the Japaneseword “Fudohsan” into the English word “Real Property.” But this translation does not tellmuch about the Japanese real property system unless one knows that the house and the land
are treated differently under the Japanese law and thus partly subject to different rules. One
might wish to know further why the Japanese law treats the house and the land separately andwhat rules apply to the land.
It is the common sense of the legal profession that the black letter law makes sense only
when we understand the legal institution, the function of a particular provision, the socioeconomic context where the rule was created, the function of law socially expected and soforth. In one sense the black letter law is a leaf floating on the stream.
At the early stage of the legal reform assistance, projects tended to focus upon the code or
major statutes. But if it is true that the black letter law makes sense when it is integrated into
the background context, relevant information must be linked to the black letter law. It is criticallyimportant how we relate the background context to the code and statutes.
It seems to be a sound policy that the donor and the recipient countries respectively provide
the background information of their own legal system. This is simply because we can most
comfortably talk about our own legal system. For example, Japanese experts assisting thereform of the Business Law of Lao PDR can describe and explain the Japanese company law
and its background context. In return Lao experts can offer to the Japanese experts the
explanation of their Business Law and its contextual information.
One of the purposes of the legal reform assistance is to help the recipient countries makebetter choice. Legal experts of the donor countries can contribute more by talking extensively
about their own legal system.
Where can we store and share the information so provided by experts of the donor and therecipient countries? The data-base of the translated laws and statutes might be a good storage.
The translation project of Nagoya University focuses upon statutory provisions of Japanese— 94 —

Improving Legal Transparency: The Translation Project of Japanese Law and the Prospect of New Comparative Law

law. Japan will be able to disseminate the English translations of her important laws and statutes.
There is no technical difficulty to add the background information to each translated provisionin the form of “link.” Legal experts of Japan can provide the contextual information voluntarily.
But it is far more important for them to respond to the request of legal experts of foreigncountries, particularly recipient countries. To talk about the common sense is not easy, for wetake it granted and often fail to notice the critical importance of the common sense of our own
law and society. A simple question of a foreign lawyer such as “Why does your rule work?”might open an eye of a native lawyer as to an open question of effective law.
If each country and its experts of various disciplines can provide the similar service, wewill be able to create, in substance, an extensive information service by expanding the database of the translated laws. The following illustration shows a conceptual image of the global
sharing of statutory information.
Global Sharing of Legal Translation

SpanishGermanVietnam

FrenchKorea
English

China
Japan

link

(Japanese – English)
Asian
Legal Translation Data-bases(bi- or multi- lingual)European Union
Legal Translation Dictionary Data-bases(bi- or multi- lingual)

Figure 5. Sharing of translated laws and background information

As already mentioned, the first step of the translation project is to generate the “translation
dictionary” or “translation memory” which works as the yardstick of translation. If Japanproduces a translation dictionary of Japanese-English and Laos does one dictionary of LaoEnglish, it is technically possible to create an integrated translation dictionary of JapaneseLao-English laws. In this way we can grow the integrated translation dictionary for laws ofvarious countries. Actually the European Union has already developed the translation dictionary
for more than twenty languages. If we can establish a network of translation dictionaries
developed in Asia and relate it to the dictionaries of the European Union, an extensive translation
dictionary with global coverage will emerge on the web.
Even if we can create the network of translation dictionaries and share the huge body oftranslated laws of various countries, we still need to supplement it with extensive contextual
information. This will be the real forum for the comparative study which is pursued by global
collaboration. Relevant contextual information will include socio-economic environment,
history, legal culture, political context, culture and so forth.
— 95 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2Figure 6 shows a slightly structured view of the contextual information. A legal expert by
the name of “prosecutor” may make an interesting example. Prosecutor seems to carry quite
different social significance. In socialist countries a prosecutor performs the role of the guardianof the social justice. In some cases he appears more like the conventional Lord Chancellor of
England who embodied equity. In contrast the Japanese prosecutor (kensatsu-kan) is regarded
as a public officer of the state who works in the public domain and is seen very different froman attorney working in a private domain. In the US and UK prosecutor is simply an attorneywith a different mask. It is useful to discriminate the levels of description to characterize what
the prosecutor is.
Black Letter
Law level

Procurator

Kensatsu-kan

District Attorney

Institutional
level

Functionallevel
Socio-cultural
level

Japan

VietnamUS

Relevant Information Provided by Native Lawyers

Figure 6. Layers of contextual information

The suggested global sharing of the statutory information will function somewhat like amenu from which the recipient countries choose for their legal transplant. For successful legaltransplant diverse information is essential. Public officials, practicing lawyers, and academic
lawyers of both donor and recipient countries can contribute to this process by contributing
their unique experience and wisdom. In addition non-lawyer experts can contribute toclarification of the contextual information. Long term fruit of this process will be, it is expected,
emergence of a new comparative study of law.

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Appendix

Presentation by David M. Trubek

1

2

3

4

5

6

7

8
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9

10

11

12

13

14

15

16
— 100 —

Presentation by David M. Trubek

17

18

19

— 101 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

1

2

3

4

5

6

7

8
— 102 —

Presentation by Lars-Göran Malmberg

9

10

11

12

13

14

15

16
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17

18

19

20

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Presentation by Lars-Göran Malmberg

25

26— 105 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2Introduction

1

2

Legal Obstacles toLocal Resource Mobilization

Deficiencies in Legal System
Example One

34

Deficiencies in Legal System
Example Two

Deficiencies in Legal System
Example Three5

6

Burdensome Regulation
Example Four78— 106 —

Presentation by Charles R. Irish

World Bankís Doing Business in 2005
Analysis of Burdensome Regulations

Analysis of Burdensome
Regulation

9

10

Conclusions of World Bankís
Analysis of Burdensome Regulation

Why the Benefits of Reform Are So
Great?

11

12

Benefits (Continued)

Benefits (Continued)

13

14

Benefits (Continued)

Barriers to Reform are Substantial

15

16— 107 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2Theories of Government
Regulation

Theories of Government
Regulation (Continued)

17

18

Implications for Legal Assistance Programsfor Less Developed Countries

19— 108 —

Presentation by Yoshiharu Matsuura

1

2

3

4

Translator

Translation
Support
SystemAvailable Translationof Law

Translation assistanceK no w l e dg e fo r
Translation

Effective Translation
by G o od C o m b i n a t i o nof Professionals & Compute6rs

5

6

7

8
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Center for Asian Legal Exchange, Nagoya University CALE Books 2

9

10

11

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Programme of the Symposium

ANNOUNCEMENT OF AN INTERNATIONAL SYMPOSIUM
The Theme of the Symposium: The Role of Law in Development – Past, Present and Future
Date: October 22-23, 2004
Venue: KKR Hotel Nagoya(1-5-1 Sannomaru, Naka-ku, 460-0001, Nagoya, Japan)

SSpeakers:
Session 1

Prof. David Trubek, University of Wisconsin Law School
Prof. Emeritus Akio Morishima, School of Law, Nagoya University

Session 2

Prof. Cliff Thompson, University of Wisconsin Law School
Prof. Lars-Göran Malmberg, Faculty of Law, Lund University

Session 3

Prof. Katsuya Ichihashi, Graduate School of Law, Nagoya University

Session 4

Prof. Charles Irish, University of Wisconsin Law School
Prof. Hiroshi Matsuo, Keio University Law School

Session 5

Prof. Masanori Aikyo, Center for Asian Legal Exchange, Nagoya University
Prof. Maki Nishiumi, School of Law, Chuo University

Extra Session Prof. Yoshiharu Matsuura, Graduate School of Law, Nagoya University
Prof. Thomas Bruce (Commentator), Cornell Law School— 111 —

Center for Asian Legal Exchange, Nagoya University CALE Books 2

PROGRAMME
October 22
08:15–
09:00

Registration

Opening Session
Opening Address: Saburi Haruo, Dean of Graduate School of Law, Nagoya University
Addresses: Shinichi Hirano, President, Nagoya University
Masayuki Inoue, Ministry of Education, Culture, Sports, Scienceand Technology
Keiichi Aizawa, Ministry of Justice, Research and Training Institute09:30–12:00 Session 1: Overview of the Past Efforts and Observations for the Future
09:30–10:00 Prof. David Trubek: The “Rule of Law” in Development Assistance:
Past, Present, and Future
10:00–10:30 Prof. Akio Morishima: The Japanese Approach Toward Legal Development
Assistance (Law and Development)
10:30–10:50 Coffee Break
10:50–12:00 Discussion
12:00-13:00 Lunch
13:00–15:20 Session 2: What Sort of Lawyer will be most effective in the Context of Legal
Reform of Developing Countries?
13:00–13:30 Prof. Cliff Thompson (ex Dean of UW Law School):
Legal Education for Developing Countries: A Personal Case Study fromIndonesia
13:30–14:00 Prof. Lars-Goran Malmberg (Faculty of Law, Lund University)
The Project: Developing legal education in Vietnam
14:00–15:10 Discussion
15:10–15:30 Coffee Break
15:30–18:30 Session 3: The Role of Law in the Developing Countries
15:30–16:00 Prof. Katsuya Ichihashi (Graduate School of Law, Nagoya University)
Law and Legal Assistance in Uzbekistan
16:00–17:00 Discussion
17:00–17:00 Steering Committee
Members: Charles Irish, David Trubek, Christian Hathen, Lars-Göran
Mamlberg, Thomas Bruce, Masanori Aikyo, Yoshiharu Matsuura,
Haruo Saburi, Masanori Kawano
18:30–20:30 Reception— 112 —

Programme of the Symposium

October 23
09:00–12:00 Session 4: The Rule of Law and Economic Development
09:00–09:30 Prof. Charles Irish (UW Law School)
Removing Impediments to the Mobilization of Local Resources A Paper for
the Symposium on the Role of Law in Development – Past, Present andFuture09:30–10:00 Prof. Hiroshi Matsuo (Keio University Law School)
The Rule of Law and Economic Development: a Cause or a Result?
10:00–10:20 Coffee Break
10:20–11:30 Discussion
11:30–13:00 Lunch
13:00–16:00 Session 5: The Rule of Law and “Democracy”
13:00–13:30 Prof. Masanori Aikyo (Center for Asian Legal Exchange, Nagoya University)
Human Rights and Democracy in Vietnam — Some thoughts on thephilosophy of Legal Assistance
13:30–14:00 Prof. Maki Nishiumi (School of Law, Chuo University)
Development and Democracy — from a Viewpoint of International Law
14:00–14:20 Break
14:20–15:40 Discussion
15:40–16:00 Coffee Break
16:00–16:45 Extra Session
16:00–16:30 Presentation: Prof. Yoshiharu Matsuura (Graduate School of Law, Nagoya
University)
A Nagoya Project: Translation Project of the Japanese Law — Its Implicationfor Statutory Drafting and Management of the Statute Data Base
16:30–16:45 Comment: Prof. Thomas Bruce (Cornell Law School)
Comments on Nagoya project
16:45–17:00 Closing Remarks— 113 —