Appreciate the difference: the role of different domestic norms in law and development reform; lessons from China and Japan.

AuthorMayeda, Graham

Institutional models of development consider rule of law reform as one of the keys to improving the economies of developing countries. But the experiences of China and Japan indicate that advocates of this position have oversimplified the complexity of law and development reform. The author counters the view that China and Japan are "Asian exceptions" to the general rule that a Western conception of the rule of law is essential for development. Legal reforms to promote development need not embrace all the institutions that embody the ideals of liberal democracies, such as political freedom and human rights reform. Rule of law reform is effective if new legal institutions build successfully upon existing formal and informal social, political, cultural, and legal institutions.

The author begins with a "thin" conception of the rule of law that is procedural rather than substantive, and indicates how the experiences of China and Japan underscore the importance of identifying domestic institutional norms that can be used as a starting point for designing effective reforms. One of the essential elements of China and Japan's successful economic development is their adaptation of foreign conceptions of the rule of law to ensure compatibility with domestic norms and values. Their experiences suggest that some economies can function well without adopting a Western liberal democratic conception of the rule of law, and indicate the possibility of alternative approaches to development.

Les modeles institutionnels de developpement considerent la reforme de la primaute du droit comme un des elements determinants de l'amelioration de l'economie des pays en voie de developpement. Cependant, l'experience de la Chine et du Japon suggere que les partisans de cette position auraient simplifie a exces la complexite de la reforme en droit et developpement. L'auteur rejette le point de vue que la Chine et le Japon ne sont que des > a la regle generale qu'une conception occidentale de la primaute du droit est essentielle au developpement. Les reformes juridiques qui favorisent le developpement ne doivent pas proner l'adoption de toutes les institutions qui incarnent les ideaux des democraties liberales, telles la liberte politique et la reforme des droits de la personne. La reforme de la primaute du droit n'est efficace que dans la mesure ou les nouvelles institutions reposent sur les institutions sociales, politiques, culturelles et juridiques existantes, aussi bien formelles qu'informelles.

L'auteur debute avec une conception > de la primaute du droit qui est procedurale plutot que substantive. Il suggere que l'experience de la Chine et du Japon souligne a quel point il est important d'identifier des normes institutionnelles domestiques qui peuvent servir de point de depart a l'elaboration de reformes efficaces. Un des elements essentiels de la reussite du developpement economique de la Chine et du Japon est leur adaptation des conceptions etrangeres de la primaute du droit de maniere a ce qu'elles soient conformes avec les normes et les valeurs domestiques. Ceci suggere que certaines economies peuvent bien fonctionner sans toutefois adopter une conception liberale democratique et occidentale de la primaute du droit. De meme, la demarche signale la possibilite d'approches alternatives au developpement.

Introduction I. China and Japan Are Not Exceptional Cases II. Is the Liberal Democratic Conception of the Rule of Law a Good in Itself? III. A "Thin" Model of the Rule of Law Is Preferable to a "Thick" Model IV. Adapting the "Thin" Model of the Rule of Law to Account for the Compatibility Between Existing Domestic Norms and Proposed Reforms A. Institutions Are Intrinsically Normative B. Law Is Embedded in a Social, Cultural, and Economic Context C. Formal Dispute Resolution Mechanisms Are Not Necessarily More Effective than Informal Ones V. Case Study 1: Japan A. Japan Has Not Adopted a Western Conception of the Rule of Law B. Japan's History of Criminal and Civil Law Reform Is Characterized by an "Adopt and Adapt" Approach to Law Reform C. Japan's Constitutional Law Reform Is Also Characterized by Adoption and Adaptation D. Characterization of the Japanese Legal System 1. The Use of Informal Regulation 2. The Role of Informal Dispute Resolution in the Preservation of Community Relationships 3. A Close Relationship Between Judicial and Administrative Branches E. Summary VI. Case Study 2: China A. Historical Background B. Characterization of the Chinese Legal System 1. Little Protection of Private Property Rights 2. Absence of a Western Model of Private Contract Law 3. China's Two Economies--Different Regulatory Environments for Foreign and Domestic Business 4. Informal Mechanisms for Enforcing Obligations 5. Legitimacy of Legal and Administrative Institutions Is Based on Utilitarian Ideals Rather than Western Conceptions of Justice and Division of Powers C. Summary VII. Comparing China and Japan Conclusion Introduction

The re-emergence of the law and development movement has had the effect of emphasizing the importance of rule of law reform for improving the economic situation of developing countries. (1) Many advocates of rule of law reform admit that institutions do not exist independently of a cultural or sociological context. (2) But there is as yet no clear articulation of the relationship between culture--understood as the norms and values animating domestic social, cultural, and political institutions--and legal institutions. Consequently, there has been little consideration of the implications of this relationship for the approach to institutional design. (3) My purpose in this paper is to investigate the relationship between culture and legal institutions and to adapt the institutional model of development to recognize the relationship between them. Using the examples of China and Japan, I argue that adopting a Western liberal democratic conception of the rule of law is hot a necessary step in the transition from developing to developed nation. As Frank Upham points out, "there may be other paths to development other than through an effective, efficient and fair legal system ..." (4) My gloss on this observation is that there may be many interpretations of what an "effective, efficient and fair legal system" might look like--a nuance that many advocates of the institutional model of development fail to appreciate. (5) For instance, Tu Wei-ming, in discussing modernization in East Asia, points out that modernization can take on many forms. The experience in East Asia indicates that modernization need hot be synonymous with homogenization--it does hot require the adoption of identical institutions throughout the world. In Tu's view, cultural pluralism is a reality that must be recognized, and the experience in East Asia demonstrates that Asian values are just as universalizable as Western ones. (6)

The unique social, political, economic, and cultural development of China and the similarly unique developments in Japan are two examples of distinct paths to development. They demonstrate how domestic norms and values can be exploited to provide a normative framework conducive to development. Rule of law reform ought to focus on identifying pre-existing systems in developing countries and adopting legal reforms that are compatible with these systems. China and Japan are not exceptional cases, but rather examples of a type that could exist elsewhere.

  1. China and Japan Are Not Exceptional Cases

    Why choose China and Japan as case studies? The first answer is that there is considerable research on social, cultural, political, and legal institutions in China and Japan prior to their rapid economic development, in contrast to the lack of similar research for many developing countries. However, the choice of China and Japan becomes more difficult to justify when confronted by those who observe that the experiences of these countries cannot be generalized. In their view, China and Japan are examples of "Asian exceptionalism": they are exceptions to the general rule that liberal democratic conceptions of the rule of law and other Western democratic and legal institutions are necessary to promote economic development. Those who hold this view claim that China and Japan were able to provide the economic stability necessary to promote economic growth without a North American or European conception of the rule of law because of the existence of stable networks of close personal and family ties. (7) While I acknowledge that a system of close personal relationships was able to provide the kind of stability necessary for economic development, I do not support the view that this is an example of a unique Asian cultural trait. Instead, similar domestic systems can likely be found in other developing countries and adapted to modern usage, as bas been done in China and Japan.

    There are a number of reasons for questioning the correctness of the argument about Asian exceptionalism. First, it is difficult to identify a generalizable profile of Asian cultural uniqueness. Max Weber identified Confucianism as a pervasive Asian social value system, but thought it was less conducive to supporting a capitalist economic system than Western Protestantism. Since then, Confucianism has been seen as a boon to economic development. Much of this difference in opinion is based on different views about what constitute Confucian values. Lucian W. Pye characterizes Confucianism as valuing leisure and good luck. He thus questions the conventional view that Confucianism values hard work--a feature generally thought to be causally related to East Asian economic success. For Pye, it is Confucianism's emphasis on luck and self-improvement that have provided the impetus for East Asian success. (8) Francis Fukuyama also points out that culture is not useful for explaining the development of social, political, legal, and economic institutions. He points out that...

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