Law and Development 2022

No.1. Introduction (2023/04/13)
Syllabus summary
Goals of the course:
As a basic subject, by taking this course, participants are expected to understand the outline oflaw and institutions in the context of development and how to implement legal regulations fordevelopment.
Through this course, students should understand what the relationship between the legal systemand socio-economic-political development is; what legal system is desirable for socio-economicdevelopment; what is the mechanism of legal development; what is the difference between
developing society and developed society in terms of the legal system and its implementation.
In the first part of the lecture, the lecture will discuss theoretical aspects of the law anddevelopment, including economic theory, legal theory, and cultural theory. The focus of thiscourse is not limited to the law in narrow definitions such as legislation, regulation, or judgment.
Therefore, the discussion also covers various forms of government mechanisms, publicadministration, and political regimes. Furthermore, informal law (such as religious or customarynorms and institutions) significantly impacts development. Thus, the course also discusses therelationship between development and informal institutions.
In the second part, this lecture will try conducting practical lessons, namely, learning legislation.
In implementing a development project, legislation plays a significant role by changing people'sbehavior (imposing sanctions), legitimating resource allocation (e.g., allowing a government toallocate a budget to a particular area), giving guidelines (showing what is an expected goal), or
maintaining social order (solving disputes peacefully).
In this lecture, we will make a draft bill to achieve a development goal (the issue will be discussedin class). Legal drafting includes goal setting, conducting legal research on facts, determining
ways of the regulation (punishment or incentive), constructing a consistent structure of rules, andso on. Students are expected to participate actively in the class and preparation work.

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Law and Development 2022

Figure 1: Concept of the Course① What is development?

② What is law?

DEVELOPMENTLAWPart 1③ What is the relationshipbetween law and development?

Setting individual policy goalsLegal regulations to achieve goals

G1
G2｜
Gn

R1
R2｜
Rn

Policymakers(parliamentarians, ministries etc.)

Legal drafting(drafting offices/staffs etc.)④ Researchinglegal facts andeffects⑤ Formulating legal
rules based onpolicyPart 2

Course plan:
Structure of the Course / Schedule
Part I:
1.

Introduction

2.

What does "development" mean and how to measure development? : definition anddeterminants of development (reading: Advanced introduction, Chapters 1-2)

3.

What is law?: Sharing a working definition of law by comparing formal and informal norms.

4.

Theories of law and development (1): Economic theory of law and development

5.

Theories of law and development (2): Other theories of law and development

6.

Legal technical assistance: Foreign aid for institutional reform

7.

Challenges for the rule of law reform: Corruption as a case study

Part II:
8.

Discussion about development goals in each society.

9.

Role of legislators in development

10. Researching legislative facts
11. Determining the contents of a legislation
12. Legislative writing: words, sentences, and references3Law and Development 2022

13. Discussion and presentation (1)14. Discussion and presentation (2)15. Wrapping-up
Main textbooks:
Ann Seidman, Robert B. Seidman, and Nalin Abeyesekere, Legislative Drafting for Democratic
Social Change: A Manual for Drafters, Kluwer Law, 2001.1
Michael J. Trebilcock and Mariana Mora Prado, Advanced introduction to law and development,
2nd edition, Edward Elgar, 2021.2

1. Opening
The second main textbook (Prado & Trebilcock) of this lecture asserted that:"'Law and Development' is a term used to describe attempts to understand the relationshipbetween legal systems and legal institutions and a wide variety of development outcomes.
Hence, this book will mostly focus on the question of what kind of law and legal
12E-copy will be given via NUCT
E-book is available on the Nagoya university library website
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arrangements are perceived (correctly or not) to produce development. Before that,
however, it is necessary to understand what we mean by development, a topic that has
generated heated academic and policy debates. Different conceptions of development arediscussed in the first chapter. The following chapters turn to a discussion about causalconnections between legal and non-legal variables and development outcomes. The firstchapter sets the context for a detailed analysis of the design of political, bureaucratic, private
and international legal institutions, inquiring into when and how they may be relevant fordevelopment." (p.xi)
I fully agree with their position. Namely, at first, there is the perception that the law has a positive
relationship with development, but, at the same time, this perception might not always be correct.
Secondly, there are different, sometimes contradicting, ideas about development, and, thus, therelationship between law and development must be considered based on what development istargeted.
This course does not intend to explain the rigorous legal issues. The law schools offer law courses,
for instance, on constitutional law, private law, criminal law, procedure law, administrative law,international law and so on as independent study subjects. In those law courses, law students must
learn:l

What are the criteria for determining property rights if X's and Y's rights conflict?

lIf X accesses and downloads electric data without payment, X's act is theft crime?

lCan a shareholder oppose the decision made by the company's board of directors?

lWhen can the government impose a tax on a private person?

Defereces of "LDS" from ordinary legal courses

In other words, ordinary legal education is to develop law students' capacity to find an answer toa concrete legal case by applying a relevant law based on the general legal theory (interpretation).
However, development is multiple comprehensive project, and many different disciplines areintricately intertwined. Therefore, we must consider law as one means of policy achievement incombination with other policies. Based on this proposition, this course mainly discusses whatcombination of laws we should make to achieve what development policy goals. Creating or
combining laws to achieve specific policy goals is the "legislative policy," which is the main pointof the law and development study. In this regard, the first textbook (Seidman et al.) explains:5Law and Development 2022

"Good governance, that is, effective government based on non-arbitrary decision-making,is central to a country's successful development or transition to a market-oriented economy.
This Manual explores the critical relationship between law-making and development. It
aims to equip legislative drafters with the conceptual tools and specific techniques they needto draft laws likely to bring about the institutional transformation necessary for good
governance.
Designed as a practical aid for practitioners in the developing and transitional worlds, thisunique work demonstrates how, withinconstitutional and other limits, a drafter
should structure a bill, provides instruction
in drafting amendments and subordinate
legislation,anddescribes

theskills

required to write the clear, unambiguous
and readily interpreted provisions required
to achieve a bill's objectives. It provides amodel for a research report that, based on
facts and logic, will justify the bill'sdetailed provisions and demonstrates thatthe responsible agency will implement
them effectively.
The final section focuses on drafting laws
to facilitate government decision-making
in accordance with the rule of law. In
particular, it suggests devices for drafting
defensively

againstcorruption,

thus

providing the legislative environment
essential for successful transition and development."

Thus, this course focuses on the "legislation" (law-making) among various law and development
study aspects. In most countries, law-making is the task of policymakers and parliamentarians,
who are usually not experts in the law. However, the law is a way to change people's repetitive
behavior and give certain predictability in social relations through normative language ("if it isXXX, it should/must be YYYY"). Therefore, law-making requires an elementary understandingof legal theory. Because of this, the first part of this course discusses what law is and what
normative methods are available.

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Then, the course examines theories on law and development. The law and development is not anew topic. The idea that law is useful for some social benefit has existed since ancient times3.
This course reviews theories on the relationship between law and development after the Second
World War, from the 1950s until the 2000s. After the Second World War, the development ofdeveloping countries became an international problem, and various development theories havebeen presented. The law and development theory has evolved in response to changes in thedominant development strategy ("development paradigm"). This course especially discusses
economic development and other development concepts (e.g., human development) separately.
After reviewing the theoretical aspects of the law and development study, I will explain somecases of legal technical assistance for developing countries. Then, before moving to the second
part, we will discuss the corruption problem in developing countries, and how corruption distorts
law that pursues development. We may discuss what solution can be perceived to address
corruption.
Part II:
The second part is based on the discussion. We will follow the textbook authored by Ann Seidman,
Robert B. Seidman, and Nalin Abeyesekere. Seidman et al. insist if the staff of a relevant line
ministry submits a draft law, it must be accompanied by a research report that legitimizeslegislation. The research report is not the short concept of the law but the description of the factthat requires new law (legislative fact) and the assumed effect of the law, including causal
relationship (logic). Furthermore, after the policymaker agrees to make new law, according to theauthors, the legislative drafting by a drafter is not a mere translation of policy to legal rules but
political work. Thus, close communication about policy implications between policymakers anddrafters is essential. In drafting, a drafter must choose what regulatory measures to take to achieve
policy goals, for instance, by penalty, by incentive, by setting guidelines without coercive
measures, etc.
For example, when the Japanese government decided to improve women's status after Japan
ratified CEDAW, the government enacted the law without penalty because of social-economicconditions at that time. Then, the government incrementally increased legal obligations with3

In ancient Greece, Aristotle's argument that a person can achieve superlative goodness byfollowing the norm of the community (polis). In ancient China, philosophers argued the importanceof the rule by law (法家). In 1748, Montesquieu published the book titled "the Spirit of Law" which
examined the relationship between law and political development. In the early twenties century, Max
Weber argued the importance of rational legality for the development of the capitalism.
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penalties. In another case, the government had to take a balance between the welfare of female
single parents and the budget restriction. In that case, Japan introduced a combination of subsidies
and job training that had already been implemented in the US. However, because the conditionof female single parents in Japan is so different from that of the US (unlike the US, most Japanese
female single parents have full-time jobs and do not depend on subsidies but still suffer poverty),
the law does not have a good effect.
Making research report for legislation and mock legislation might be good practice forunderstanding the relationship between law and specific development goals. So, in the secondpart, I request participants to make a short research report. Participants should think about whatdevelopment challenges exist, then discuss legal facts and legal approaches. After that, theparticipants shall make a legal draft.
Box 01: Elevating women's status
The Equal Employment Opportunity Act (enacted in 1985 upon the Japan's ratification ofCEDAW)(For outline, refer to: https://roumu.com/pdf/nlb0709.pdf)

1985
2015

Do you think that the equal employment opportunity act achieved its policy target?

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