ABSTRACT
The ‘rule of law’ continues to gain momentum as an organizing principle for global financial transfers, and so scholarly attention has turned to updating the intellectual history of the field. Scott Newton (2006) suggests that we have witnessed a continuum of five distinct periods of foreign aid or donor-propelled legal reform worldwide, namely: a pre-history of colonial legal development (to the 1960s); the inaugural moment of US legal development cooperation (196574); the critical moment (1974-89); the revivalist moment (1989-98); and the ‘post’ moment (1998 to the present). Similarly, but using slightly different taxonomy, David Trubek has declared this present period to be a ‘third moment’ of law and development (Trubek and Santos 2006: 1). Trubek argues that we now see the emergence of a new paradigm of law
and development, fuelled in part by critical reaction to the neo-liberal policies of the 1990s. Rather than focusing on private law enhancement in the service of market strengthening, ‘the [new] concept of development … [has been] expanded to include law reform as an end in itself’ (Trubek and Santos 2006: 9; emphasis in the original). Trubek suggests that this new paradigm is shaped by two key ideas: the importance of the role of state intervention when markets fail and the redefinition of ‘development’ to encompass not only economic growth, but also social goals such as human freedom, in the style of Amartya Sen’s definition of rule of law (Trubek and Santos 2006: 8, Santos 2006: 265). For evidence of the emergence of the ‘third moment’ paradigm, Trubek
turns to some of the apparently changed priorities within World Bank documents and financed projects. Among other things, he cites examples of the Bank’s explicit recognition of the failures of transplants and top-down methods; rejection of a one-size-fits-all approach and stress on the need for context-specific project 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 labour rights, women’s rights and environmental protection; and its acceptance of the need to
make access to justice an explicit dimension of judicial reform projects (Trubek 2006: 92). Thus, for Trubek, the ‘third moment’ is characterized by a new commitment
to critique, and a greater willingness to accommodate local conditions and national diversities (Trubek and Santos 2006: 9). On this view, the ‘third moment’ is an opportunity to review, correct, critique and perfect legal reform in the service of development. Trubek is cautiously optimistic that this ‘third moment’ heralds donor-funded legal reform initiatives around the world that are more nuanced and (potentially) more successful than those of previous decades, although ‘[i]t is premature to say that [they] presage real change’ (Trubek and Santos 2006: 92). The ‘third moment’ thesis is deeply attractive, but it is also contestable on a
number of levels. One key question is whether the thesis and the normative assumptions that underpin it are supported by ‘thick’ descriptions of how contemporary donor-funded legal reform is proceeding worldwide (see, for example, Arnscheidt et al. 2008, Bergling et al. 2009). For me, an especially important missing component in the ‘third moment’ story is the rise of Asia, both as a target region for contemporary rule-of-law assistance (see Berger 2004) and as a source of distinct models of legal reform, whether domestic or as part of donorassistance activities in the region. Shifting the focus to Asia has a number of implications for how we view
contemporary practice in the field of rule-of-law assistance. First, thinking about Asia as a locus of rule-of-law reform draws attention to the range and diversity of external donor interventions now carried out in the name of ‘rule of law’. It becomes clear that there has been a significant diversification of types and modes of rule-of-law assistance, which now range from long-standing programmes of institutional reform and democratization (Indonesia) through to legal assistance for World Trade Organization (WTO) accession and market-strengthening (China and Vietnam), post-conflict reconstruction (Timor Leste, Cambodia), disaster relief for the poorest countries or regions (Bangladesh or Aceh) and finally fragile state construction during an ongoing conflict (Afghanistan; see the chapters by McAuslan and Sahovic in this volume). Second, Asian examples remind us that subsuming rule-of-law programmes
within military activities throughout Asia has been a hallmark of the last decade, fuelled by civil unrest and the effects of the (former) US Bush Administration’s ‘war on terror’. Conventional military activities, such as ‘standing-up’ police forces, prison systems, prosecution services and courts, have morphed into delivery of law reform and dispute resolution at the local level, independently of civilian development projects. This is now a pattern traceable from Timor Leste and Aceh, through the Provincial Reconstruction Teams in Iraq and Afghanistan, to the creation of a military-style ‘standing corps’ of civilian legal professionals in the US (United States Institute for Peace 2009, Taylor 2009). Third, focusing on Asia reveals new, regional rule-of-law actors. For example,
we see the emergence of Asian rule-of-law donors. Beyond multilateral donors
such as the World Bank and the IMF, regional financial institutions have been important. The Asian Development Bank, for example, has long been a significant donor and an intellectual resource for legal reform programming within the region (see Pistor and Wellons 1999). At the bilateral level, Japan and South Korea have also assumed new roles as rule-of-law assistance providers, in order to meet their own political and economic goals. China, through Macau, is actively seeking to advance its influence on the Portuguese-speaking legal world, particularly in Africa. Taiwan and Singapore function as de facto models of legal reform within the region, in particular for China and Indonesia respectively, while Singapore has also emerged as a regional legal training and educational centre (Taylor, in press). Thailand continues to be a legal model and reference point for the Lao PDR and for Cambodia. What we do not yet understand is how elites within these relatively new Asian donor and ‘model’ institutions conceive rule-of-law assistance and how, in the delivery phase, they reconcile global concepts and narratives with their own national policy priorities and recipient needs and preferences. Fourth, the Asia experience is noteworthy for its complex, multidirectional
flows of ‘rule of law’ or legal reform. For example, China is simultaneously a recipient of rule-of-law donor assistance (donors include Japan, the EU and the US) and an emerging superpower in the process of remaking its own legal system. And while trying to achieve a functioning distribution of ‘rule of law’ domestically, China also acts as an important point of reference for other developing legal systems. More proactively, it is now a major economic force and aid provider in Africa and Central Asia and has begun to provide legal technical assistance to developing countries. These new – or newly prominent – streams of rule-of-law assistance from and
within Asia prompt a second question: is there any necessary link between development and rule-of-law assistance in Asia, either as an intellectual field or in practice? We might also ask Trubek, ‘Whose moment of law and development is this?’ Responses may vary according to where we sit within the Asian matrix of rule-of-law assistance, and whether we employ the conventional western/ global framework of analysis or adopt local perspectives (see, for example, Peerenboom 2004, Perry-Kessaris 2008, Gillespie and Peerenboom 2009). In this chapter I suggest that these kinds of questions represent challenges to the ‘third moment’ thesis. I seek to illustrate this by exploring one under-studied aspect of rule-of-law assistance in Asia: Japan’s evolving experience as a rule-oflaw donor. Having rebuilt its own economy in the second half of the twentieth century –
initially with multilateral financing and foreign aid assistance – Japan grew to become the world’s second largest economy. By the 1990s it had begun to export rule-of-law assistance to Asia. While they were familiar with the approaches of other multilateral and bilateral donors, Japanese governmental and legal elites initially avoided the formulations ‘law and development’ and ‘rule of law’, opting instead to label their activities ‘legal technical assistance’ [hoseibishien].
