SUMMARY OF THE PROJECT
Introduction
Project Leader: Nobuhiro Nakayama
The key word of our project is ¡ÈSoft Law¡É. ¡ÈLaw¡É typically means rules
provided and enforced by the state; however, the reality of the legal norm
is not narrowly limited to such laws. We call these norms ¡Èsoft law¡É.
¡ÈSoft law¡É is a phenomenon observed in various areas of business law.
If we focus only upon ¡Èhard law¡É as the norm, we do not get a complete
picture of our society. For instance, business practices are often conducted
in areas where state laws cannot be enforced, and norms that are not enforceable
by the state often drive the business world. Unfortunately, Japanese legal
studies and education have not paid sufficient attention to the role and
function of ¡Èsoft law¡É. The goal of our in-progress project is to study
¡Èsoft law¡É in the context of business practice.
Although ¡Èsoft law¡É exists everywhere in the real world, there has been no systematic method to uncover them. To conduct meaningful research in this area, it is vital to have a comprehensive data on ¡Èsoft law¡É; to that end, we will gather information on existing soft law and input them into a database; this database will be available for both research- and education-based purposes. Second, to achieve efficient and in-depth studies in specific areas of business law, we will divide the whole of the project into three sections: Public Regulation, Commercial Transaction and Intellectual Property; each section will be part of a separate (or interdisciplinary, if necessary) research program, in an effort to analyze soft law in those areas. With the cooperation of experts in economics and other social sciences, we will analyze the basic and theoretical issues concerning why people obey norms that are not legally binding by any court.
Finally, advanced legal education on soft law is another important focus of the project. The results of our research will be incorporated into the education systems at the Graduate Schools for Law and Politics. In addition to the ordinary curriculum media - such as in-class lectures and seminars and public lectures - professional interdisciplinary seminars and symposia are planned.
Ultimately, we hope our project will provide a basis for research and education
in this unexplored area of law.
The goal of the project
Our project "Soft Law and the State-Market Relationship" focuses
on the functions of soft law and promotes theoretical research into this
phenomenon. It has two goals: first, to cast light on the inter-relationship
between the market and the state in the context of business law in the
21st century; and second, to provide researchers and practitioners in the
field of business law with sufficient theory and knowledge in the field.
What is soft law?
Soft law refers to norms that, although not part of the formal law provided by the state and whose enforceability is not guaranteed in the courts, are perceived by both state and private parties as having some binding force and are, in fact, obeyed. Soft law may take various forms: it may be a form of guidance by regulators; it may be a form of social norm created by private actors in the market; or, it may be a form of informal agreement between states.
"Soft law" plays a growing role in the modern business world and exerts influence on private party activities in commercial practice. However, without a proper understanding of the roles and functions of soft law, it is impossible to undertake meaningful research on contemporary business law. Unfortunately, traditional legal studies to date have not sufficiently tackled soft law. Accurate data have not been available in relation to soft law, a proper methodology to analyze the functions of soft law is lacking, and as a result, little attention has been paid to soft law in legal education.
This project aims to overcome these problems. First, we will construct a database on soft law and make it available for research and education. Second, a new research methodology will be explored. It is necessary to cast light on why private parties obey norms where they are not backed up by the state, whether the content of such spontaneous order is socially desirable, and whether and to what extent the state does and ought to intervene in the development of such voluntary norms. Existing methodologies in legal scholarship are totally inadequate for such inquiries. We thus believe inter-disciplinary studies with, for instance, sociology and economics are necessary to establish these new methodologies. Finally, the results obtained from our research will be reflected in the legal education in our university.
