THE RULE OF LAW OR LAW AS INSTRUMENT OF RULE? LAW AND THE ECONOMIC DEVELOPMENT OF JAPAN WITH PARTICULAR REGARD TO INDUSTRIAL POLICY
Undoubtedly the observation is sound? It is, however, the merits of the claim itself that will be at issue in this chapter. Accordingly, it is worth saying at the outset, given that the erecting of straw men for subsequent demolition is not the most profitable use of the reader's time, that the linkage between the rule of law and economic development does not seem critical in the Japanese case at least. A first proximate reaction is that economic development was well under way in Japan and certainly predated the codification of law along Western lines at the end of the nineteenth century. A second reaction is that in so far as law figures - if at all - in the vast literatures concerning the economic development of Japan it is with respect to the possibilities it affords of administrative discretion in pursuit of developmental ends. That is almost the diametric opposite of the role for law envisioned by the institutions referred to above. As far as the 'rule of law' is concerned, particularly if this is to be understood in the strong sense as a set of formal, universal overarching constraints upon the actions of all players including government, there would seem, again at first sight, to be problems. Certainly there are those who would argue that the rule of law is something which might better be understood as a goal, than as a precondition of Japan's economic growth but even this could not be taken as read. An empirical exercise to establish whether or not and, if so, how far the 'rule of law' is goal or norm in Japan would be required. In short there would seem to be problems aplenty with the rhetoric of the rule of law in the case of Japan. To be blunt, the prima facie evidence suggests that the Japanese case
does not confirm the rule of law hypothesis. Does this matter? It should but there are reasons to doubt that it does or will. At issue is the way in which the mainstream literatures (that is literatures that have as their first empirical point of reference the countries of the West) deal with East Asian cases. Johnson (1988) and Wade (1992) are only two of the serious minded scholars who have come close to irritation at the willingness to downplay, to marginalize, or to explain away the significance of uncomfortable Asian cases. There is a more sophisticated but no less dubious response to the case study that refutes the existence or the significance of what is said originally to be the cause. This is the search for the functional analogue - a 'something else' that does the job that (in this case) the rule of law would otherwise have done. Quite what conditions govern and produce the 'otherWise' is not usually clear but seems to be a matter of culture or time. To complete the puzzle, a curious logic has it that if the analogue is discovered the significance of the supposed original is thereby confirmed. The chapter proceeds from the assumption that there is little profit to be derived from the pursuit of the 'functional analogue,' (in Japan) to the presumed role of the rule of law in economic development. Not least of the reasons is that the underlying equation proceeds as if the latter (the rule of law) was the preferred means of history when history was fully awake or at least closer to 'home' but which might be substituted for when history was dozy and distant. The objection is simple; Japan is not a marginal case. It is one of the world's leading economies and remains so - notwithstanding apprehensions borne of the 'Asia Crisis.' Theory embraces Japan as a central empirical referent or is found wanting. More specifically, if theories regarding the rule of law and economic development are robust and persuasive they apply to Japan. If on close examination they prove not to, then the theory itself comes fundamentally into question.