“Legal Technical Assistance” as an Intellectual Cooperation: Transplants of Law as Institutionalized Knowledge

Abstract

The establishment of “rule of law” has been recognized as a vital policy issue for the sustainable and equitable development not only in transition countries but also among major East Asian countries suffering from the Economic Crisis during 1997-98. The donor countries and institutions have started “legal technical assistance” in various fields of recipient countries. Law and legal systems, however, are rather complex institutions of knowledge inseparable from cultures and traditions of relevant societies, which is far beyond a target of traditional technical assistance. Probably due to the difficulty to incorporate such a holistic nature of law into the mechanism of technical cooperation, it seems that the concept and method of the legal cooperation has not been defined successfully yet. This paper aims at searching for the answer to this question. For this purpose, first, I discuss the changing paradigm in the field of technical cooperation, which has shifted the emphasis from the hard or technical knowledge to the soft or institutional one. Second, I examine two experiences of legal transplantation; the reception of Western modern law in Meiji Japan and Law and Development Movement (LDM) in the United States during the 1960s-70s. Both of them give us an important lesson that law could not be transplanted without metamorphosing it to new one through adapting it to the cultures and traditions of recipient societies. Third, I survey mechanisms of legal cooperation in three aid organizations; World Bank, USAID and JICA. Finally, I conclude that the legal cooperation is a rather long process of continuing two-ways exchange of knowledge and experiences between donors and recipients, and propose to establish the international institutional mechanism or network, which functions effectively to exchange and accumulate those knowledge in order to research and design the suitable legal systems for relevant countries.