Yoshiyuki Tamura

Traditional legal studies are structured in two dimensions: the private law, which regulates rights and obligations of two parties in a static relationship, and the public law, which regulates problems that relates to the public in general. The advance of science and technology, and the increasing globalization and mutual dependence of societies, have expanded the impacts of a social arrangement upon others who are not the direct parties, in multi dimensional and diverse manner (society of externalities). At the same time, subject matters of social arrangements, such as technology, economies and environments, have been ever changing and as a result, it becomes difficult to grasp the arrangements as a whole (subject matters of social arrangements with dynamic and unstable nature). Examples of policy areas that have multi-dimensional nature include: conflicts between users and right holders in the contexts of the Internet; clashed interests between the developed and developing countries over production of AIDS medicine; and diverse views on urban planning and industrial and environmental policies in the context of landscapes, development of nuclear power plants or the global warming. They are so multi-faceted that traditional way of thinking of private/public dichotomy in the traditional legal studies would not work properly. In each case, it becomes necessary to approach these questions from a dynamic perspective, by considering trade offs between static and dynamic efficiency, to provide the baseline where the law need to intervene to approximate the desirable status of competition, and to address treatments of scientific knowledge in the law.

(a) Traditional legal studies have approached these questions by balancing interests between right holders, but it is difficult to align the interests when they are unavoidably complicated in the society of externalities. (b) Law and economics school uses the efficiency standard in solving these questions. In addition to the limitation in reflecting diverse values, however, its classic theory is too simplistic as it sets the baseline at the perfectly competitive market and recognizes the function of law as to approximate the current status toward this ideal state. This is highly unrealistic. Approaches based on the game theory or the behavioral sciences that study individuals’ actual behavior are more promising, but their applications to law and policy issues are still under developed.
These approaches each represent the conventional legal studies in Continental Law tradition and in Anglo-American Law tradition and they represent the current international methodologies of legal studies. The proposed methodology of this project, a new global law and policy theory utilizes these two perspectives and adds a new third axis to the combination. When policymakers collect information and coordinate interests of the multitude, it is difficult to measure the welfare of the parties and the efficiency that should be achieved through their coordination. In addition, diverse values, such as rights and autonomy of a man, should be taken into account. Furthermore, there exist reflexive interrelations between the regulatory process and the subject matters of regulations because regulatory endeavors and grants of rights and powers constitute basis of the market and influence the evaluation of the subject matters of regulations when policymakers collect information on scientific knowledge and economic situations. Therefore, we need an approach to combine the analysis of the substance of laws and policies with legitimization through the policy making process. This is a reconstruction of the discipline of legal studies; it will govern gradual process of law and policy making at the age when there is no single correct answer. To implement above, our research project explores the structure of intergovernance among the market, the legislature, the administration, the judiciary and other societal organizations, from the point of expertise and competence, democratic initiative and advocacy of freedom.

In this manner, our research project New Global Law and Policy for Multi-agential Governance” aims to provide a methodology of legal studies that responds to dynamic challenges arising out of a society of externalities, embracing a concept of procedural justice beyond consequentialism.