In the postmodern age, lawyers are re-learning that it remains impossible to draw clear boundaries between the legal and the non-legal. Debates about globalisation have precipitated this realisation (Flood, 2002). Several pioneers of legal pluralism studies provided useful starting points for further plurality-conscious analysis. Hooker (1975: 1) highlighted that ‘[l]egal systems typically combine in themselves ideas, principles, rules, and procedures originating from a variety of sources’, adding that ‘[b]oth in the contemporary world and historically the law manifests itself in a variety of forms and a variety of levels’ (p. 1). We know that law is everywhere (Twining, 2000: 1) as a social phenomenon, based on cultural foundations (Chiba, 2002: v), which the dominant positivist approach has unsuccessfully tried to ignore in order to privilege the state and its laws. Studying legal pluralism clearly ‘raises important questions about power’ (Griffiths, 2002: 289) and thus challenges legal centralist perspectives about state law.

While legal uniformity represents a utopian dream of philosophers, it is therefore an exception in social reality. Questions have arisen about where law begins and where it ends, but perhaps these are misleading questions. It is a common daily experience that normative pluralism, the coexistence of different bodies of norms within the same social space, is a fact of life. While we may struggle to understand the elusive and dynamic nature of norms, Twining (2000: 246) suggests that pluralism goes much deeper, so that ‘to understand law and legal ordering, the study of norms is almost never enough.

While the long-awaited first edition of this book was explicitly directed at a specific student readership, it attracted much attention worldwide as a pioneering model of global legal analysis. This revised second edition ventures further beyond the still somewhat exotic ambit of comparative legal education pursued at the School of Oriental and African Studies (SOAS) in the University of London. It places legal pluralism more confidently into the mainstream study of comparative law, addressing some of the serious deficiencies of comparative law and legal theory in a global context.

Having read much of what appeared since 2000 in this fertile but still largely uncultivated field, I feel empowered to write with more clarity about the challenging experience of applying in practice what some writers, particularly Santos (1995), Twining (2000) and Cotterrell (2003), have been suggesting as viable strategies to promote plurality-sensitive, globality-conscious legal theory. There has been growing recognition of the fact that academic activities in the complex fields of legal theory and comparative law remain underdeveloped and still too eurocentric. As Western academics we seem, by our own histories and training, to be too wedded to ways of perceiving and studying law that do not take sufficient account of the culture-specific social embeddedness of legal phenomena in the world. We continue to ignore principles and models of good practice that have been developed elsewhere, particularly in Asia and Africa.

The present chapter aims to provide a detailed historical overview of Islamic law in comparative perspective. It seeks to demonstrate that Islamic law, too, is built on a notion of plurality-consciousness and can be examined within the triangular model of global legal theory explored in the present study. In comparison with Hindu law, scholarship on Islamic law seems to be much more securely anchored around the world. This does not mean that knowledge about Islamic law is better developed or that its place within a plurality-focused global analysis is easier to define. Scholarship on Islamic law is spread widely, available in many different languages apart from Arabic and English, and so diffuse in terms of approaches, sectarian and school traditions that a full overview is impossible. The present analysis concentrates on those aspects that further understanding of how Islamic law, as a religion-based legal system, manages to reconcile the doctrinal centrality of religious belief with its inherent plurality of socio-cultural manifestations. It is a case study mainly in how natural law and socio-legal approaches interact, while concepts of state positivism are not absent. This chapter highlights how Islamic law has achieved and largely maintained a sophisticated degree of plurality-consciousness, albeit often obfuscated by theological polemics and political rhetoric.

The chapter explores in depth the tensions within Islamic law concerning its claims to uniformity and global validity and the pluralities created by human social and political life.

Regionalism in International Trade and Investment

While the global multilateral trading system represented by the WTO provides a regulatory framework for international trade today, more than 130 regional trade arrangements (RTAs) also exist. Regional Trade Agreements are authorized by the WTO and include important economic entities, such as the EU, and they have significant effects on international trade because about 90 percent of WTO Members, including a number of developing country Members, have signed at least one or more RTAs. The trade of many developing country Members is thus affected by the terms of RTAs as well as WTO disciplines. Therefore, RTAs create significant implications for the economic development of developing countries just as WTO rules affect the ability of these countries to adopt development policies. The trade of developing countries not participating in particular RTAs may also be affected by the terms of these RTAs because the competitive position of their exports in the markets of RTA members (“members”) may be relatively weakened by trade preferences offered to the members but not to the non-member developing countries.

Most of these RTAs are free trade agreements (FTAs). An FTA is an agreement between two or more countries to eliminate both tariff and non-tariff trade barriers and thereby create a free trade area among the participating countries (e.g., the North American Free Trade Agreement [NAFTA], the Jordan–U.S. Free Trade Agreement).

Two Principal Components of Industrial Promotion Policies

Introduction

I have discussed in the preceding two chapters the idea that the international trading system needs to allow developing countries to adopt effective development policies. What specifically are these policies, and how effective are they for economic development? Throughout history, nations have applied various policies to promote industries. Government policies targeting promotion of domestic industries are called “industrial policy.” To promote industries, governments have used a range of policy tools that include direct financial grants, loan guarantees, tax rebates/reductions, research and development (R&D) support, facilitation of social infrastructure, and various trade measures to protect domestic industries from imports.

In particular, trade measures and subsidies have historically been the two principal components of national industrial policies to promote industries, particularly in the earlier stages of their development (“infant industry promotion”). However, many economists today argue that policies using trade measures and government subsidies to promote industries are not effective and cause a distortion of resource allocation and economic inefficiencies. It is, therefore, necessary to consider the viability of these industrial promotion policies and then discuss how tariffs and subsidies are treated under the WTO. I also propose alternative provisions concerning binding tariff rates and subsidies later in this chapter, which would better facilitate economic development.

“Invisible Hand” versus Infant Industry Promotion

There has long been debate about whether governments should lead economic development or whether they should refrain from doing so because an economy performs most efficiently when it is left to the “invisible hand” of market forces.

By the time I was finishing this book, the Journal of World Trade, a premier journal in the field of international trade law and policy with which I have the privilege of association, decided to run a special issue on trade and development. Wishing for the success of the special issue, I shared my small thoughts on an interesting aspect of development with my colleagues, which I would also like to share with my readers of this book.

Many consider development primarily in terms of economic improvement. The approach is not incorrect, but there are other, perhaps more important, human sides to development. Development brings more than an increase in the income figure; it brings the people a sense of confidence, pride, joy, and responsibility. If readers would bear with me for a few more pages, I would like to talk about these “other sides” by telling you the tales of my birth country, Korea, and of my own family, who lived through the ages of the Korean development.

When the late President Park Jung Hee started development initiatives in 1962, South Korea was not only among the poorest nations in the world by any economic standard, but also torn up from inside. The physical and psychological horrors of the Korean War were still vivid in the memories of Korean people. The remnants of brutal foreign rule, which enslaved millions of Koreans, were still lingering in the minds of many Koreans.

Administered Protection

The WTO system authorizes the application of certain measures on trade, and this chapter discusses the effects of some of the major trade measures on development. Trade measures include a vast array of government measures that affect trade, frequently applied in the form of (increased) tariffs and quotas. Governments apply trade measures for various political and economic reasons. For instance, trade measures are an important instrument of infant industry promotion. Certain trade measures, such as AD measures, CVD measures, and safeguard measures, are called “administered protection” because they are applied for the protection of a specific domestic industry, and this protection is administered by the terms of the relevant WTO rules. Measures of administered protection are frequently applied and have significant ramifications on development. Because subsidy issues and CVD actions are already covered in the preceding chapter, this chapter discusses AD actions and safeguard measures.

Why do we allow governments to adopt measures of administered protection while the objective of the WTO system is to pursue open trade? The rationale for AD measures and CVD actions is rather different from that for safeguard measures: with respect to the former, the justification is found in the promotion of “fair trade.” Here, unfairly low prices (dumping), as well as a trade-related government subsidy, is believed to provide the exporters with an “unfair” advantage; therefore, the importing country has a right to offset this unfair advantage by applying counter-trade measures.

I wrote this book on the premise that the economic development of developing countries should be considered a priority for moral, economic, human rights, and security reasons and that the international trading system should provide an adequate regulatory framework that allows developing countries to adopt effective development policies. These policies include a state promotion of infant industries through export facilitations and trade protections. A careful examination of the WTO provisions leads to the conclusion that the current WTO disciplines are not sufficient to facilitate development, and some of these provisions in fact prohibit developing countries from adopting effective development policies. With this conclusion, I have explored the ways in which we may better promote economic development, while preserving the current basis of multilateral trade disciplines.

We can provide a more development-friendly regulatory environment for trade by carefully calibrating preferential treatment to developing countries without altering the current regulatory framework for open trade in a fundamental way. To facilitate development, I have introduced the concept of the “sliding scale” in the DFT and DFS that would allow differentiated treatment to developing countries according to their respective development stages gauged by income levels. I also suggest the exemption of imports from developing countries from AD measures. The current AD disciplines are dubious and ambiguous in nature and have become a major impediment to trade of both developed and developing countries.

The Question of Poverty

In today's world of unprecedented technological and economic advances, the majority of the world population has not been able to share in this prosperity. Persistent poverty still remains in many parts of the world, and this human tragedy is one of the most pressing problems in our time. Nevertheless, despite some efforts by international organizations, poverty does not seem to receive priority consideration from leading nations that could provide key political and economic support toward resolving this problem. Consider this issue from another perspective: not only is the relief of persistent poverty our moral obligation but it is also consistent with our long-term security interest because societies with adequate economic resources are less likely to foster violence and terrorism that has torn our world apart throughout history.

How can this problem of poverty be resolved? Poor countries cannot indefinitely depend on donations from outside, even if such donations could be provided; the only lasting solution would be to create an economy in these countries through economic development that would provide inhabitants with adequate resources and sustain their living standard beyond subsistence. How can poor nations build such an economy? It has been suggested that poverty is not simply a result of bad economic policy; various political, social, and even cultural problems have also been cited as causes of poverty. Because these causes are rather various and complex, many believe that no simple solution to poverty is universally applicable.

Introduction

Historical Background

As discussed in Chapter 1, the regulatory framework for international trade should allow developing countries to adopt effective development policies. This chapter introduces the current regulatory framework for international trade, represented by the WTO, with a brief account of its historical development. The current trading system includes provisions to facilitate development, and these provisions are also discussed in this chapter. Later chapters analyze the current provisions and conclude that they are not adequate to facilitate development of developing economies. This inadequacy leads us to consider alternative provisions that would better serve the development needs of developing countries.

A multilateral regulatory framework for international trade was first contemplated at the Bretton Woods Conference during the Second World War. Trade protectionism that was prevalent during the 1930s led to exclusive trade blocs and was an important cause of this tragic war. Lessons were learned from this experience, and efforts were made to create a new trading system that would promote open trade so that arbitrary trade restrictions and exclusions would not cause yet another major conflict. The Charter for the International Trade Organization (ITO) was drawn up after the war with an objective of establishing a new trading system. However, political support for the creation of the new trading system began to quickly wane after the war, and the United States failed to ratify the ITO because of congressional objection. Without the participation of the United States, the ITO could not come into existence.