State/Society Synergies in Western and Japanese Economic Law and Judicial Reform

in Dimitri Vanoverbeke, Jeroen Maesschalck, David Nelken and Stephan Parmentier (eds), The Changing Role of Law in Japan: Empirical Studies in Culture, Society and Policy Making, Cheltenham: Edward Elgar Publishing, 2014

16 Pages Posted: 19 Aug 2011 Last revised: 4 Nov 2013

Volkmar Gessner

University of Bremen

Date Written: April 18, 2011

Abstract

Most experts on Asian law agree that the “Asian miracle” was accomplished largely without legal support on the private, administrative or constitutional law levels. Explanations were sought in particularities of the political system, in the absence of social conflict due to a homogeneous population, in substantive rationality approaches conducing to reasonable choices and trade-offs, in cultural preferences for extra-legal relationships. Rich empirical research demonstrates that external support for the economy exists in many legal and non-legal variations. This paper refers to five approaches which contribute to the debate on the role of law and formal legal institutions in economic development: (1) classical sociology of law, (2) law & development, (3) economic sociology, (4) institutional economics, and (5) social capital discourses. This latter approach seems most appropriate for comparing Asian and Western recent developments in reforming the legal environment for the respective economies. A new debate on Asian particularities in state/society synergies in supporting the economy is suggested searching for institutions which combine informal norms and formal law or – in the terminology of social capital discourses - personal and impersonal trust. As regards Japan the paper offers two positive examples: the main bank system and Japanese communal administrative reforms. These latter reforms show that local non-state actors are significantly more involved in developing and evaluating new reform projects than in Germany. On the other hand Japan lacks state/society synergy in current judicial reforms. Whereas some Western countries practice or introduce such combination of formal and informal activities in areas like group actions or class actions or in offering internet enabled court transparency which allows citizens participation and control Japan keeps alive a (German) heritage of judicial isolation from society. This seems to run against its own cultural tradition and is probably reinforced by rule of law discourses within the community of international legal advisors and comparative lawyers.

Keywords: State/Society Synergies, Japan, Economic Law, Court Reform, Legal Culture

JEL Classification: A13, O53, P51, K00

Suggested Citation

Gessner, Volkmar, State/Society Synergies in Western and Japanese Economic Law and Judicial Reform (April 18, 2011). in Dimitri Vanoverbeke, Jeroen Maesschalck, David Nelken and Stephan Parmentier (eds), The Changing Role of Law in Japan: Empirical Studies in Culture, Society and Policy Making, Cheltenham: Edward Elgar Publishing, 2014. Available at SSRN: https://ssrn.com/abstract=1912048

Volkmar Gessner (Contact Author)

University of Bremen ( email )

PO Box 330440
Bremen, 28334
Germany

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