No. 5 Theories of Law and Development (2):Development Beyond Economic Development: Local Context and Access to JusticeGoals:•Understand the implications of good governance and the rule of law for humandevelopment.

•Understand the concept of access to justice.

•Understand the importance of including local institutions in legal reform projects.

1. Introduction
Good governance and the rule of law are essential concepts in the new law and development
movement that emerged at the end of the twentieth century1. This movement was triggered by thetransition of former socialist states to market economies. Thus, good governance and the rule oflaw are not only important for functioning markets, such as through business law reform, but also
embody values that go beyond economics. For instance, the Japanese ODA Charter stipulates
that:"Japan will give priority to assisting developing countries that make active efforts
to pursue peace, democratization, and the protection of human rights, as well asstructural reform in the economic and social spheres2."

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To measure the rule of law and good governance, World Bank develops the WGI (WorldGovernance Index) that is the aggregation of perception indices below:- Voice and Accountability: the extent to which a country's citizens are able to participate inselecting their government, as well as freedom of expression, association, and the press.
- Political Stability and Absence of Violence: the likelihood that the government will bedestabilized by unconstitutional or violent means, including terrorism.
- Government Effectiveness: the quality of public services, the capacity of the civil service andits independence from political pressures; the quality of policy formulation- Regulatory Quality: the ability of the government to provide sound policies and regulations
that enable and promote private sector development- Rule of Law: the extent to which agents have confidence in and abide by the rules of society,including the quality of property rights, the police, and the courts, as well as the risk of crime.
- Control of Corruption: the extent to which public power is exercised for private gain,
including both petty and grand forms of corruption, as well as elite "capture" of the state
2
Japan's Official Development Assistance Charter, p.2.
https://www.mofa.go.jp/policy/oda/reform/revision0308.pdf

"full attention should be paid to efforts for promoting democratization and theintroduction of a market-oriented economy, and the situation regarding theprotection of basic human rights and freedoms in the recipient country3."
While economic development aims to achieve national economic growth, human development
focuses on expanding the capabilities of individuals. Therefore, in the context of legal reform,
attention should be paid to how each person can benefit from the law.
2. Access to Justice
The figure on the right illustrates
therelationshipbetween

theinternational community, publicinstitutions, and society regarding
legal reform.

Concept of law in society
Pressure/ Assistance/Intervention
PolicyRules

pressureoftheinternationalcommunity.

These

regulations

should contain ideas and purposes

Human Resource
Institution
Infrastructure

Law in books

Idea/ Purpose
Legitimacy/ Authority
Structure/ Consistency

Implementation

A state authority creates legal
regulations with the support orLegislation

Acceptance

Law in action

Application/ Judgement
Enforcement

Society/ People

AccessSocial condition/ other norms

that are consistent with the legal
system as a whole and supported by the legitimacy of the authority. These regulations are called"law in books." Then, "law in books" is enforced through administration or judiciary. The effectof the enforced law is called "law in action." Although the same regulation is enforced, "law inaction" depends on the enforcement system, including the quality of enforcers, procedures, andinfrastructure. To improve "law in action," the international community supports human resources
such as judges, prosecutors, police, and ombudsman, as well as infrastructure such as court
buildings and IT systems.
However, ordinary people are often excluded from this process. People's acceptance of laws andaccess to justice are influenced by social conditions and other social norms. Without acceptanceand access, the effectiveness of law is only nominal, and the state can exercise very limited
governance capacity4.

34Ibid., p.5.
The following situations indicate the gap between state law and ordinary people in Southeast

Question:
What language is used in the court in your country?
Do you know the emergency police call number in your country?
The World Bank has acknowledged that, despite providing assistance for legal reform, the results
have been mixed at best5:"Where there is commitment to reform, improvements in governance can and do occur.
Over the past decade from 1998-2008, countries in all regions have shown substantial
improvements in governance, even if at times starting from a very low level. Examples
include Ghana, Niger, and Peru in Voice and Accountability; Algeria, Angola and Sierra
Leone in Political Stability and Absence of Violence/Terrorism; China, Colombia, andRwanda in Government Effectiveness; the Democratic Republic of Congo, Georgia andLibya in Regulatory Quality; Latvia, Liberia and Rwanda in Rule of Law; and Indonesia,
Liberia and Serbia in Control of Corruption.
On average the quality of governance around the world has not improved much over the past
decade, despite some of the individual country improvements noted above. Coinciding withcountries that have done well, a similar number have experienced deteriorations in several
governance dimensions, including Zimbabwe, Cote d’Ivoire, Belarus, Eritrea and Venezuela.

Asian countries:- Most law scholars in Indonesia are interested in dogmatic interpretation of law, such as thecivil code, the penal code, and the civil procedure code introduced by the Dutch colonial
government, without paying attention to practical social context.
- Legal education in Myanmar still adheres to the "Indian Code" that was transplanted during
the British colonial era. (Kaneko)- In the Philippines, socially-oriented lawyers and law school students established sociallyoriented groups, called Alternative Law Groups (ALGs), in prestigious universities. (Golub)
References:Kaneko, Y. (2019). Contract Law in Myanmar: An Outcome of British Colonial Law. In Civil
Law Reforms in Post-Colonial Asia: Beyond Western Capitalism (pp. 61-83). Springer.
Golub, S. (2003). Participatory Justice in the Philippines. In M. McClymont & S. Golub (Eds.),
Many Roads to Justice: The Law-related Work for Ford Foundation Grantees around the World(pp. 67-87). The Ford Foundation.
5
http://info.worldbank.org/governance/wgi/pdf/Pressrelease.pdf

In many other countries, no significant change in either direction is yet apparent in recentyears."
Legal measures can promote individual capabilities that are targets of human development.
However, improving the government's capacity for governance and law does not necessarily
expand legal rights for ordinary people. In fact, many people are unable to access the formal legal
system due to various obstacles, such as political oppression, ethnic discrimination, linguistic
barriers, conflicts, gender bias, and informal norms like religious and customary norms.
Therefore, a new approach to legal reform assistance emerged in the 2000s, known as "access tojustice."
For instance, the World Bank started showing attention to access to justice in the mid-2000s. The
World Bank’s World Development Report of 2002, titled "Building Institutions for Markets,"emphasizes the importance of a judicial system for a functioning market economy. In contrast,
the 2006 report titled "Equity and Development" discusses equal access to medical services,education, jobs, capital, and secure land titles, political freedom and access to political power,
elimination of stereotypes and discrimination, and the improvement of poor people's access to the
judicial system and infrastructure.
The United Nations Development Programme (UNDP) also focuses on access to justice. To
address the problem of poor people's exclusion from justice, the UNDP established theCommission for the Legal Empowerment of the Poor (CLEP) in 2009, chaired by Hernando deSoto and Madeleine K. Albright. In the report's introduction, CLEP explains how exclusion fromthe law negatively affects the poor.
"As the Report highlights, the sources of legal exclusion are numerous and very often countryspecific. However, four common threads stand out. First, legal empowerment is impossible whenpoor people are denied access to a well-functioning justice system. Second, most of the world’s
poor lack effective property rights and the intrinsic economic power of their property remains
untapped. Third, poor people, in particular women and children, suffer unsafe working conditions
because their employers often operate outside the formal legal system. Fourth, poor people are
denied economic opportunities as their property and businesses are not legally recognised. They
cannot access credit, investment nor global and local markets.6"

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Commission on legal empowerment of the poor, Making the Law Work for Everyone Volume
1: Report of the Commission on Legal Empowerment of the Poor, 2008.

CLEP asserts that the role of law is significant in addressing the inaccessibility of the poor to four
formal legal rights: access to a well-functioning justice system, effective property rights, the rightto safe working conditions, and the right to legally recognized business. International cooperation
for legal reform is necessary to establish good governance in terms of institutions ensuring"predictable, impartial, and consistently implemented rules" and to address these issues.
3. Local context for access to justice(1) Recognition of property rights and local context
CLEP pointed out problems of property rights in developing countries7:i) Lack of sufficient property rights system and appropriate governance in most developingcountries.
ii) Uncertainty over legal ownership of forests, pastures, swamplands, and sources of freshwater.
iii) Collectively held indigenous lands have often been declared public or unoccupied lands.
iv) Exclusion of women from legal property rights.
As for the first point, CLEP insists:"Overwhelming evidence, from all over the world, shows that functional property relationships
are associated with stable growth and social contracts, whereas dysfunctional property
relationships are associated with poor, unequal, and unstable societies. When property rights areout of peoples’ reach, or rights are subject to competing claims, their assets are often not secureand their economic potential remains severely inhibited."8
In his famous book titled "The Mystery of Capital9," Hernando de Soto, co-chair of CLEP, argues
that legal recognition of land ownership allows for the capitalization of land assets, which refers

available at https://www.un.org/ruleoflaw/blog/document/making-the-law-work-for-everyonevol-1-report-of-the-commission-on-legal-empowerment-of-the-poor/
7
The Commission on Legal Empowerment of the Poor and UNDP, op.cit.,35-36.
8
The Commission on Legal Empowerment of the Poor and UNDP, op.cit.,34.
9De Soto, Hernando, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else, Basic Books, 2000. (available in GSID library, and, cheap price in fact)to the multiple uses of the economic value of land. This point will be discussed later using themortgage system as an example.
Regarding the second and third points, it is necessary to note the difference between traditional
land use rights and modern land property rights10. The recognition of modern land property rights
means recognizing a full and exclusive right to control a parcel of land. The owner is free to do
everything, including cultivating the land, building houses, renting, selling, restricting entry, anddoing nothing with it. On the other hand, traditional land use rights often do not recognize suchexclusive control. The land belongs to the community, and occupation of land for dwelling or
cultivation does not mean that the land can be freely disposed of. If an occupant does not use theland properly, the land may be returned to the community. In addition, there are other types ofrights to use the land, such as the right to feed the grass on the land to livestock, to use wells on
the land, to perform rituals on the land, or to pass through the land, and those rights are recognizedwithin the community as separate rights.
However, a simple conversion of traditional land use rights to modern property rights upon
independence or legal reform programs often recognizes only the occupant of the land as the soleowner and excludes other traditional rights as inferior rights. Therefore, in regions wheretraditional communities continue to exist, a gradual transition of the land ownership system isnecessary to take such conditions into account11.
Furthermore, if ownership is combined with land registration (official recognition of ownership),
the government does not recognize traditional land rights and may deprive the land of residents.
For example, in the Narmada valley development project in central India, the government refused
to pay compensation for those who were forced to move from construction sites because thegovernment does not recognize the traditional land ownership of indigenous people and assumes
them to be illegal occupants on state-owned lands.
The fourth point concerns the marginalization of socially vulnerable groups in the process of legalmodernization. Policymakers and lawmakers must be aware that traditional norms often
discriminate against social minorities (e.g., women). To address this problem, policymakers and10

Various case studies in African countries by Benjaminsen et al. are instructive in this regard.
Tanzania is an interesting example, where the government enacted two land laws, namely theland law applied for urban area, and the rural land law applied for rural area.
The YouTube movie below depicts the conflict between state law and customary norm over land
in Gambia:
https://youtu.be/7FSCXzFhZNA
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lawmakers should consider how to introduce human rights values to the traditional community inan acceptable manner12.
(2) Capitalization of the property through legalization
As discussed so far, property rights are indispensable for the development of large-scale economy.
This section discusses the mortgage system as an example how a clearly defined property rightsupports the capitalization of land asset. Mortgage is one of the most common ways to financecertain businesses. The Black's Law Dictionary defines "mortgage" as:"1. A conveyance of title to property that is given as security for the payment of a debt or theperformance of a duty and that will become void upon payment or performance according to thestipulated terms.
2. A lien against property that is granted to secure an obligation (such as a debt) and that is
extinguished upon payment or performance according to stipulate terms."
Thus, by mortgage, one can finance its business while keeping the use of a property in a term thata debt shall be return according to the stipulated terms (time and interest). In sum:
•Creditor (mortgagee) reserves a right on the land as a security for the debt. (The land isused to have capital = capitalization goods)•Debtor (mortgagor) can use the land for production even the land is mortgaged. (The land
is used for production = production goods)

This legal method needs clearly defined property rights on land, an accessible land registration
system, and a functioning enforcement mechanism. Because the creditor can know that the debtor
is a legitimate owner of the land and the creditor's right as a mortgagee is securely recorded andrepresented in the cadaster (registration of land rights), the creditor does not have to monitor andoccupy the land physically (the costs for monitoring and enforcement are reduced). Without
credible registration, the creditor must physically control the land and, even worse, remove thedebtor from the land. In that case, the debtor can no longer use the land for production.

12An interesting attempt is to transform customary law that is discriminative against women

throgh Islamic law teachers in Aceh province, Indonesia. Please watch the film (this is a privatelink, so do not share it with others):
https://youtu.be/WTtxBEylZQw

It should be noted that even though establishing accessible registration and functioning
enforcement mechanisms need costs (labor cost, computer, or training for legal experts), if more
people take advantage of them, the average cost will decrease. Therefore, the development of aformal legal system and economic growth have a synergy effect.
Question:
Please consider the history of the modernization of land ownership in your country and the extent
to which the modern land system already works in your country. If it doesn't work as expected,
what are the reasons?

Extremely complicated procedure for the formalization of land rights in the Philippines13
Next: International cooperation for legal reform•13I will explain some examples of legal reform projects assisted by international society.

De Soto, The Mystery of Capital, pp.22-23.

•Comparing the law and development in the 1960s and the law and development in the1990s•

A case study of the judicial sector reform in Timor Leste (East Timor)

Readings:
Trubek, David M. "The 'Rule of Law' in Development Assistance: Past, Present, and Future" inDavid M. Trubek and Alvaro Santos eds., The New Law and Economic Development: A CriticalAppraisal, Cambridge, 2006, pp.74-94. (Available at the GSID Library)
Taylor, Veronica L. "New Markets, New Commodity: Japanese Legal Technical Assistance."
Wisconsin International Law Journal, vol. 23, no. 2, 2005, p. 251-282.
https://wilj.law.wisc.edu/wp-content/uploads/sites/1270/2005/05/taylor-new-markets-newcommodity.pdf

Presentation and term-paper(1)