In this conference the notion of “Rule of Law” is discussed from two different viewpoints.
On the one hand it is analyzed as the people’s attitude to behave according to law. On the other hand it is seen as an instrument that limits the exercise of state’s power.
As to the people’s attitude in China the finding in the empirical research by Prof. Deakin was very impressive for me. According to it China is well placed to make the transition from the inter-personal trust to impersonal exchange in contractual relations in the near future. Prof. Backer gave us the useful viewpoint of the relation between universality of rule of law and context in which it functions. I think it would be very important to ask how to understand the context. Prof. Backer pointed out the context in China namely, socialist democracy, culture and harmonistic society. It would be a political and social aspect of the context. The result of the research by Prof. Deakin shows the difference between economic domains, i.e. product market and financial market as economic context. I think it would be also important for understanding the context to distinguish the domain to which the market principle conform and the domain to which it does not fit, e.g. education, health care and agriculture. Because in the case of the legal aid for so called transformation countries by industrially advanced nations I have seen often that donor forced the introducing of the market system into all domains without regarding the historical social context and destroyed the social structure of donee countries.
As to rule of law as an instrument of restriction on state’s power I would like to emphasize the responsibility and influence power of academic world on political power. Franz Wieacker, a prominent Prof. for legal philosophy in Germany, distinguished in his book “Privatrechtsgeschichte der Neuzeit” academic positivism from legal positivism, according to which judge must decide not only based on law but also on the legal principle, methodology, legal theory etc. that legal science have developed. Wieacker called it academic positivism. A tragedy in the time of National Socialism was the result of destroying it. As I informed you in my presentation yesterday, political power in Japan pays no attention to a caution by the experts in the Constitution. So I think the influence power of legal academic theory on political power is an inevitable condition for establishing “rule of law” and a mature civil society.