Law and Development 2023

No.3 The definition of law
Reading:Harris, P., An Introduction to Law 7th edition, Cambridge, pp.1-25
Please be ready to explain whether "Muslim must not sell alcohol drink" is law or not.

Goal:
The goal of this session is to understand the following issues:
The meaning of the law that is distinguished from other norms.
The social functions of law.
The reason why the people obey the law and, thus, the society can be governed by law.
1. What is law?
The Oxford English Dictionary defines the "law" as:"The system of rules which a particular country or community recognizes as regulating the actionsof its members and which it may enforce by the imposition of penalties.”
With this definition, we may find some questions about the law. At first, who makes the law andwho enforces the law? Second, how and why do people recognize the law? Last but not least, whoimposes penalties?
However, at the same time, we will find many legal rules that, at least, it seems, do not impose apenalty. Harris explains that:"Marriage is a good example of the way in which social rules govern our lives. Not only is
the monogamous (one man/one woman) marriage supported by the predominant religion in
British history – Christianity; it is also maintained through moral rules (hence the traditional
idea of unmarried couples living together being ‘wrong’) and by the operation of rules oflaw which deﬁne and control the formalities of the marriage ceremony, lay down who canand who cannot legally marry, specify the circumstances whereby divorce may be obtained,deﬁne the rights to matrimonial property upon marital breakdown, and so on.
Marriage is only one example of social behaviour being governed through rules. Legal rules
are especially signiﬁcant in the world of business, with matters such as banking, money,
credit and employment all regulated to some extent through law. Indeed, in a complex

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society like our own, it is hard to ﬁnd any area of activity which is completely free fromlegal control. Driving, working, being a parent, handling property – all these are touched insome way by law. Even a basic activity like eating is indirectly aﬀected by law, in that thefood we eat is required by legal rules to meet rigorous standards of purity, hygiene and evendescription." (Harris, p.1)
What distinguishes the law from other social norms, and what are the differences between them?
To examine these questions, let us compare the following two rules:
Rule 1:
Food sanitation act (Law no. 1947/233, the last amendment in 2018)
Art. 1: The purpose of this Act is to prevent the sanitation hazards resulting from eating anddrinking by enforcing the regulations and other measures necessary, from the viewpoint ofpublic health, to ensure food safety and thereby to protect citizens' good health.
Art.6: The following food and additives shall not be sold or collected, produced, imported,processed, used, cooked, stored, or displayed for the purpose of marketing: ...
Art.71: (1)A person who falls under any of the following items shall be punished byimprisonment for a period not exceeding three years or a fine not exceeding 3 million yen:(i) A person who has violated the provisions of Article 6...7
Rule 2:2 (173). He has forbidden you carrion, and blood, and the flesh of swine, and what wasdedicated to other than God. But if anyone is compelled, without desiring or exceeding, hecommits no sin. God is Forgiving and Merciful.
5 (3). Prohibited for you are carrion, blood, the flesh of swine, and animals dedicated toother than God; also the flesh of animals strangled, killed violently, killed by a fall, gored
to death, mangled by wild animals—except what you rescue, and animals sacrificed onaltars; and the practice of drawing lots. For it is immoral. Today, those who disbelieve havedespaired of your religion, so do not fear them, but fear Me. Today I have perfected yourreligion for you, and have completed My favor upon you, and have approved Islam as areligion for you. But whoever is compelled by hunger, with no intent of wrongdoing—Godis Forgiving and Merciful.8

78Food sanitation act (Law no. 1947/233, the last amendment in 2018)
Translation based on: https://www.clearquran.com/

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Rule 3:
Trade Discerptions Act in Malaysia 20119
Art. 29 (1) ... the Minister may, by order, impose requirements for securing that the goods aso certified, marked or accompanied and regulate or prohibit the supply of the goods andthe requirements may extend to the form and manner in which the information or instruction
is to be given. ...
Trade Description (Definition of ‘Halal’) Order 201110
Art. 3. (1) When food or goods or service in relation to the food or goods used in the courseof trade or business is described as “halal” or by any other expression indicating thatMuslims are permitted to consume or use such food or goods or service, means the food orgoods or service in relation to the food or goods:(a) neither is nor consist of or contains any part or matter of an animal that a Muslim isprohibited by Hukum Syarak to consume or that has not been slaughtered in accordancewith Hukum Syarak and fatwa;(b) does not contain anything impure according to Hukum Syarak and fatwa;(c) does not intoxicate according to Hukum Syarak and fatwa;(d) does not contain any parts of a human being or its yield which are not allowed byHukum Syarak and fatwa;(e) is safe to be used or consumed, not poisonous or hazardous to the health;(f) has not been prepared, processed or manufactured using any instrument that was notfree from anything impure according to Hukum Syarak;(g) has not in the course of preparation, processing or storage been in contact with, mixed,or in close proximity to any food that fails to satisfy paragraph (a) and (b).
Art. 5. Any person who supplies or offers to supply any food, goods or service in relation tothe food or goods which is described as ‘halal’ or any other expression which is not incompliance with this Order shall be guilty of an offence.
Art. 7. Any person who is guilty of an offence under this Order shall on conviction beliable—(a) if such person is a body corporate, to a fine not exceeding five million ringgit and for asecond or subsequent offence to a fine not exceeding ten million ringgit; or(b) if such person is not a body corporate, to a fine not exceeding one million ringgit or to
imprisonment for a term not exceeding three years or to both and for a second or
subsequent offence to a fine not exceeding five million ringgit or to imprisonment for aterm not exceeding five years or both.
910

https://www.jetro.go.jp/ext_images/world/asia/my/ip/pdf/tradedescription2011_en.pdf
https://members.wto.org/crnattachments/2011/tbt/MYS/11_4246_00_e.pdf
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Made 2011[KDPN(PUU)(PU2)26/5/5;]
Dato’ Seri Ismail Sabri bin Yaakob
Minister of Domestic Trade,
Cooperative and Consumerism
Rule 1 is the law of Japan. However, rule 2 may be a law in some countries but may not be inother countries. Even in the countries where rule 2 is not the law, many people follow rule2. Rule3 is the law of Malaysia, but is it law as a rule 1 is the law of Japan?
Question:- Who makes the rules above?
- When are the rules above made?
- What are the purposes of the rules above?
Even though a rule control people's behavior, there is a difference between laws andother non-legal norms. Furthermore, it is a fact that such non-legal norms often transform into alaw. In modern society, people's behavior is largely controlled by law. Then, how do non-legal
norms transform into law?
Question:
Explain what are the "rules of recognition", "rules of change" and "rules of adjudication?"In this regard, the theory of H.L.A Hart is the most systematic one. In his book titled"The Concept of Law," first published in 1961, Hart analyses the law in the modern society
distinguished from the primitive community. Harris explains Hart's theory as follows:"Every such social group, Hart suggests, must have certain rules which impose duties
upon the members of the group concerning standards of behaviour. These ‘primary’ rules,
which might contain rules approximating to basic criminal-law rules but which might also
impose what we would call civil-law duties (akin to duties contained in the law of tort – seechapter 9), could conceivably comprise the only rules within a social group; but, Hart argues,
in a developed and complex society, these ‘primary’rules will give rise to certain problems
which will have to be dealt with by means of additional, ‘secondary’ rules. The ﬁrst problem
with such a simple code is that there will be no settled procedure for resolving doubts as tothe nature and authority of an apparently ‘legal’ rule. To remedy this, the introduction of‘rules of recognition’ is needed: these rules will constitute the hallmark of what is truly a19

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law, and may do so by reference to a set of other rules or institutions, such as a constitution,a monarch or a representative body, such as Parliament.
A second problem will be that the primary rules will be static: there will be no means ofchanging the rules in accordance with changes in the circumstances of the social group. The
remedy for this defect, says Hart, is a set of ‘rules of change’, enabling speciﬁed bodies tointroduce new rules or to alter existing ones. Third, the primary rules will be ineﬃciently
administered, because their enforcement will be through diﬀuse social pressures within thegroup. The remedy for this, says Hart, is the introduction of ‘rules of adjudication’, which
provide for oﬃcials (judges) to decide disputes authoritatively. It will be appreciated thatthese secondary rules are really ‘rules about rules’, and Hart argues that the characteristicfeature of a modern legal system is this union of primary and secondary rules." (Harris, p.5)
Hart argues that, in response to social development, the simple rule of behavior in a
relatively small static group (the primary rules) can be evolved into the modern legal system by
the rule of recognition, change and adjudication.
In the case of the rules above, rule 2, as a religious norm, had been shared by the earlyMuslim community (Ummah). Rule 3 includes the rule of recognition (the Malaysian government
recognized the Muslim food restriction as an enforceable rule in the country), the rule of change(the Malaysian ministry can revise the definition of halal in response to the development of thefood-related technology), and the rule of adjudication (Malaysian authority can decide the offense
against the rule).
Rules below are some secondary rules in Japan:
Local autonomy law of Japan
Art.14 (1): A local autonomous entity may enact local ordinances with respect to the affairs
referred to in Article 2(2) insofar as they do not contradict the law.
Civil Code of Japan
Art.92: If a custom is inconsistent with the provisions of laws and regulations that are notrelated to public policy and it is found that the party to the juridical act has the intention toabide by that custom, that custom prevails.
Criminal procedure law of Japan
Art. 2 (1): The territorial jurisdiction of courts is determined by the place where the crime
was committed, the place where the domicile or the residence of the accused is located, or
the place where the accused is at present.
Article 43(1): Except as otherwise provided for in this Code, judgments must be renderedon the basis of oral arguments.

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It is important to note that some primary rules do not receive recognition as law andremain informal rules in a state, but those informal rules have a significant impact on people's
behavior, too. This point will be examined again in the lecture on "institutionalist economics"(law and economic development).
Question:
Please provide some examples of primary rules that are not recognized as law but isacknowledged as informal norms in your country.
2. The function of law
According to Hart's argument, secondary rules clarify the content of the law, give it legitimacy,
and make enforcement more feasible. On the other hand, primary rules perform the function oflaw, which is to control human behavior. The functions of law include the following:"He [Summers] identiﬁed ﬁve techniques of law, which may be used to implement socialpolicies. These are, ﬁrst, the use of law to remedy grievances among members of a society;second, the use of law as a penal instrument, with which to prohibit and prosecuteforbidden behaviour; third, law as an instrument with which to promote certain deﬁnedactivities; fourth, the use of law for managing various governmental public beneﬁts, suchas education and welfare policies; and ﬁfth, the use of law to give eﬀect to certain privatearrangements between members of a society, such as the provisions of the law of contract
in our own legal system." (Summers, as referred by Harris, p.4)
a. Remedy of grievances among members of a society (e.g., respecting and protecting rights ofpeople)
b. Penal instrument (e.g., controlling personal behavior by imposing punishment)c. Instruments to promote certain defined activities (e.g., controlling personal behaviors bygiving incentives)d. Managing various governmental public benefits (e.g., allocating resources for public welfarepolicy)e. Giving effect to a particular private arrangement (e.g., providing legal effect to the contract
among people).
3. Why do people obey the law?

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Another question about the law, in general, is the reason for obedience to the law. Even if a rule
is recognized as formal law, the law cannot fulfill its prescribed functions without people'sobedience. There are two possible reasons for obeying the law. One is coercion and the other isvoluntary compliance.
Austin represents the former position. According to Austin, "the habit of obedience to thesovereign body in a society, which, together with the ever-present threat of sanctions, explains
obedience to law." (Harris, p.7) Hart also takes a similar position but paying attention to thecomplex social and psychological process. Hart argues people obey a law because they "accept
the legitimacy or authority of the source of the law; we obey because we consider it ‘right andproper’ to do so." (Harris, p.7)
For them, the reason for obedience comes from the authority in a society, and people
obey the law because they are afraid of the authority or recognize the legitimacy of the authority.
Any laws that do not come from the authority, do not have effect as law and people will not obey.
As for a reason for authority, Max Weber identified three types of authority in social groups,
namely: charisma, tradition and rational legality (see Harris, pp. 7-8).
Legal sociologists such as Llewellyn take the latter position. According to Llewellyn,
members of a social group accept the law because the law performs to "ensure that the groupsurvives as such, and by providing for the prevention of disruptive disputes within the group"(Harris, p.3). Law also provides the authority structure of the group and allocates the power. As
Durkheim argues, the more a society develops more a society becomes complex (see Harris, pp.910). Therefore, the law becomes significant to coordinate different interests based on occupational
specialization or division of labor in an advanced society. As a result, the role of law is not theimposition of duty by the threat of penalty anymore. "Whereas law in the ‘simple’ type of society
is, according to Durkheim, repressive, or penal, law in the ‘advanced’ type of society takes on theform of compensatory rules, where the object is not to punish, but to solve grievances by trying
to restore the aggrieved person to the position he or she was in prior to the dispute" (Harris, p.10).
4. Implications for law and development
In real society, coercion and voluntary compliance are not exclusive to each other. We
need to see how those are interacting. Coercion is effective for social control, but it demands
higher enforcement costs. To compensate for enforcement costs, stronger authority is needed. Incontrast, voluntary compliance requires fewer enforcement costs. However, the change of law
shall be slow because people prefer to obey their accustomed behavior (customary norms) and itis hard to catch up with rapid social transformation.
Thus, in making legal policy, policymakers must be aware of the interaction model
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Law and Development 2023

formal laws

Norms in a Societylaw, decree, regulation,
notification, bulletin, judgment,
customary law

adaptation↑↓
formalization (recognition/ judgment/ alternation)custom, habitude, practice,informalfolkway, moral, religious teaching,norms
spiritual model, ideology, culture.

According to this figure, informal norms will be transformed into formal laws throughrecognition. In this process, the transformed formal law can expect more voluntary compliancefrom people. However, it must be noted that informal norms are often conservative, outdated, ordiscriminative to minorities. In that case, the lawmaker should make new laws to address socialproblems caused by such informal norms by imposing formal laws. For this purpose, lawmakers
should consider a coercive way to have people obey the law.
Question:
Please explain the case in which the lawmaker tries to change social conditions by enforcing thelaw but faces social resistance.
Please explain the case in which the new law successfully improves the social problem.

Next session:
4. Theories of law and development (1): Economic theory of law and development
We will review some theories that explain the relationship between law and "economic"
development. Especially, the session will focus on the law and market economy.
Readings:"Chapter 3: Institutional theories of development" and "Chapter 10: Property rights, contracts anddevelopment" in Michael J. Trebilcock and Mariana Mora Prado, Advanced introduction to lawand development, 2nd edition, Edward Elgar, 2021.11
The E-Book is available on the Nagoya University Library website(https://ebookcentral.proquest.com/lib/nagoyauniv/detail.action?docID=6837135)

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E-book is available on the Nagoya university library website
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