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Part I
Asia in law, the humanities and social sciences
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1 What is ‘Asian law’?
Asia in law, the humanities and social sciences
Christoph Antons
Introduction: The economic and social transformation of Asian countries after World War II
Although there are now many apparent success stories of economic development elsewhere, it was in Asia that countries first achieved the transition from developing to developed country status and broke into the ranks of what had been up to that point an exclusively ‘Western’ club. Japan, an early role model for the rest of Asia (Allen, 1981; Yamamura and Yasuba, 1987), was soon followed by a further group of countries, often lumped together as ‘the Asian tigers’. Precisely who the ‘Asian tigers’ are and from which regions of Asia they come has changed from time to time. In the late 1980s and early 1990s, there was talk of the ‘four Asian tigers with a dragon head’, referring to South Korea, Taiwan, Hong Kong and Singapore (Castells, 1992). This led some commentators at the time to infer a connection between Confucianism and economic development (for example Vogel, 1991; Redding, 1993, 1996), which appeared in total contrast to the view of Confucianism as an obstacle to modernity held by early twentieth-century thinkers such as Max Weber (Tu Wei-Ming, 1996) and by modernisation enthusiasts among Asian intellectuals during the same period (Wong, 1996). Soon, however, the ‘Asian tigers’ were joined by Southeast Asian countries with no Confucian cultures, to which economists referred as ‘second-tier newly industrialising economies’.1 Indonesia, Thailand and Malaysia were included besides Japan, South Korea, Taiwan, Hong Kong and Singapore in the World Bank’s influential East Asian Miracle study of 1993 (World Bank, 1993). Interestingly, the study did not yet include the most recent examples of Asian economic success, the People’s Republic of China (PRC) and India (Peerenboom, 2007; Panagariya, 2008).
The apparent economic success of these countries paralleled diplomatic efforts of countries in ‘the region’ to spread these economic models more widely and to integrate regional economies. ‘Asia Pacific’ became the buzzword of recent decades.2 Initially understood as those Asian countries that actually face the Pacific, it expanded with the formation of the Asia-Pacific Economic Cooperation (APEC) to include countries across the Pacific in North and South America, Australia and New Zealand in the South Pacific, and finally also to Asian countries that were not actually facing the Pacific, such as India and Association of Southeast Asian Nations (ASEAN) member Myanmar. The latest turn in this strategic expansion is the use by regional politicians of the term ‘Indo-Pacific region’ (Medcalf, 2013). It demonstrates the rising importance of India in economic and strategic terms for those countries that are geographically situated further East.
The emergence of ‘Asian law’
Perhaps surprisingly, for a long time the academic discipline of law took little notice of the political and economic changes that were taking place in Asia (Antons, 1995). In comparative law, the laws of Asian countries were seen as belonging to European or US American ‘legal families’ based on transfers of laws to those countries that had been colonised and on voluntary adoption of European models by countries that were never colonised, such as Japan and Thailand. Where specific ‘Asian law’ was discussed, it was distinguished from the ‘legal families’ as ‘law in the Far East’, ‘religious legal systems’ (Zweigert and Kötz, 1998), or ‘legal tradition’ (Glenn, 2007), and the focus was on pre-colonial law transmitted in written form. The unwritten law of communities at the grassroots level had, of course, been of interest to anthropologists (who were often originally trained as lawyers) ever since the discipline had emerged in the nineteenth century.3 Their writings remained on the margins of mainstream legal study, however, as related largely to ‘isolated living’ or ‘tribal’ societies (Donovan and Anderson, 2003: 19–20). After World War II, the governments of young nation states often continued this dismissive attitude towards unwritten, local sources of law.4 At the same time, the first few decades after independence were often politically tumultuous, and this left little time and few resources for the systematic study of the developing legal systems.
There were exceptions, however, to this relatively low level of interest in the legal systems of Asian countries immediately after World War II. One notable exception was the encounter of the US American occupying forces in Japan with Japanese law and administration. US American lawyers were involved in the drafting of new laws (including of the Constitution), but also reflecting on their experience, once they were back in the United States (Blakemore, 1947). Particularly prominent in Japanese law reform during this period were American lawyers with experience of the civil law system or with knowledge of Japanese language and the legal system. One of them, Alfred Oppler, advocating a gradual approach, explained that ‘[t]he Japanese would not be able to work an artificially imposed system which differed fundamentally from what they have practised up to the present time’ (quoted in Dean, 1997: 78–79, at fn. 95). The American post-war presence in East Asia helped to trigger an academic interest in legal developments in Japan, Korea and China that outlasted the administrative needs of the occupation period. Columbia University, the University of Washington and Harvard University all established courses and (East) Asian Law Programs in the 1950s and 1960s. They have since been followed by many others and the interest in legal developments in Asia has broadened from East Asia to other parts of Asia. Outside of the United States, an early initiative from within the legal profession and the judiciary was the foundation in 1966 of the LAWASIA association, which has now more than 1,500 members from across 50 countries and is publishing its own journal.
Of course, although the situation in Japan at the end of World War II was somewhat exceptional, the encounter between introduced norms and local legal traditions in Asia by that time already had a long tradition. In those countries that had experienced colonisation, various European and neighbouring Asian powers, as well as the Americans, had introduced their laws from the late fifteenth century onwards. Other countries, such as Japan and Thailand, themselves undertook law reform in accordance with Western models after they were forced into unequal treaties exempting the citizens of their treaty partners from local law (Kayaoğlu, 2014; Loos, 2006; Vandergeest, Chapter 15 in this volume). In the case of Japan, the new Japanese laws were subsequently transferred to the Japanese colonies in Korea and Taiwan.
Iza Hussin, in Chapter 2, describes the movement of law across Asia in the nineteenth century. Rather than seeing it as a simple transfer from West to East, she shows how the law changes its character during these travels and sometimes flows back in the opposite direction. Such tracking of law across Asia can help us to better understand its role in Asia’s transformation and as a field of Asian studies. There are many similarities between these early movements of law and the current ones described in this volume: the separate domain for religion and custom created in British India and Malaya; the selective adaptation of European legal instruments; the forum shopping across jurisdictions; the conflict between law as a mobile and universal resource and demands for the local and particular in the form of tradition and custom. Hussin convincingly explains that what happened where the law stopped from the metropole to distant sites of Empire is an important, yet overlooked, question in comparative law. The law was translated and rearticulated in critical nodes such as Calcutta and Singapore, and it is this rearticulated law that was ultimately introduced in other parts of the British Empire in Asia. Local projects, rulers and middlemen also played an important role in this rearticulation, which was not the exclusive domain of colonial administrators. Law thereby not only became an instrument of change, but also assured the maintenance and reconstruction of ‘tradition’. The current discussions about the removal of the Victorian era Criminal Code provision prohibiting ‘gross indecency’ between men in Singapore and India serve as example for this reinterpretation of colonial law in a different social context. Asian law, then, in Hussin’s definition, ‘traces a line of struggle between the general and the particular, and describes a political economy peculiar to each site, in which local actors translate, domesticate and rearticulate law to fit and to reconstruct what is traditional, legitimative and authoritative’.
Lawyers, administrators and university teachers returning from the colonies during the decolonisation movement after World War II also continued to write about and share their experiences (for example Hickling, 2001). In countries that had been colonial powers in the region, legal scholarship related to former Asian colonies continued, although often on a par with academic work on a country’s colonies in other parts of the world and/or developing countries more generally and not specifically focused on Asia.5
However, the onset of the Cold War and the continuing fragility of the new countries soon led to a militarisation and to new forms of authoritarianism that had little need for refined legal arguments. Legal academics with teaching experience in the colonies often turned to the social sciences in later years.6 In addition, the US American-led ‘law and development’ movement of the 1960s in Latin American developing countries was subsequently regarded as a failure and reviewed in a famous self-critique by David Trubek and Marc Galanter (1974). Following this criticism, for a while legal academics shied away to some extent from discussions of law and development for fear of being branded ‘legal imperialists’ (Gardner, 1980). A notable exception was what Scott Newton (2006: 183) has called a ‘distinct (British/Commonwealth, African and Asian) school of the political economy of law’, in which he includes people such as Francis Snyder, Anthony Carty, Upendra Baxi, Yash Ghai, Abdullahi An-Naim and, from outside the Commonwealth and the Anglophone world, Boaventura de Sousa Santos. Important exceptions specifically regarding Asia also include the work of comparative law professor M. B. Hooker on Southeast Asia and of political scientist Daniel Lev on Indonesia.
During the 1980s, however, lawyers and social scientists began to take notice of the rapid transformation taking place in Asia. They began to ask questions about the role of law and regulation in these processes. The enlarged concept of the Asia-Pacific meant that research centres and institutes with a comparative regional research focus were no longer confined to the United States and Europe, but also were now founded in Australia,7 Canada and, of course, in many countries of Asia.8 The parallel development of Asian studies disciplines means that many younger scholars interested in Asian law today are trained not only in law, but often also in contemporary Asian studies, or social sciences with an Asian focus, and are either native speakers or fluent in languages relevant for their work.9 Vice versa, there is a growing interest in the various disciplines of Asian studies in regional legal debates and relevant work has been published by economists (Jomo and Wong Sau Ngan, 2008), anthropologists (von Benda-Beckmann, 1979; Dove, 2005; Lucas and Warren, 2003, 2013; Bowen, 2003; McCarthy, 2004), linguists, country and area specialists (Cao, 2004; Burns, 1999; Jacobsen and Bruun, 2000), geographers (Vandergeest and Peluso, 2001a, 2001b), political scientists (Lev, 2000; Jayasuriya, 1999), historians (Steenstrup, 1996; Fasseur, 1994, 2007; Coppel, 1999) and philosophers (Bauer and Bell, 1999).
The promise of multidisciplinary work
Given sufficient elasticity of disciplinary boundaries, the growing interest in so many different disciplines should generate a lively debate. The question about the disciplinary nature of work related to ‘Asian law’ may, in the future, largely be a question for purists and faculty administrators eager to protect their respective disciplines. The earlier work on Asian legal ‘tradition’ and that of anthropologists has long been recognised in comparative law (Glenn, 2007; Menski, 2000). As Asian countries become important partners in international trade and educational exchange, they are also increasingly included in comparative studies in the various sub-disciplines of law (for example du Plessis et al., 2014; Heath, 2003; Goldstein and Straus, 2009; Ginsburg and Chen, 2009). On the side of socio-legal studies, the great openness of law and society studies and of Asian studies, both pioneered in the United States, to contributions from many different disciplines and similar approaches in regulatory studies (Gillespie and Peerenboom, 2009) mean that there are now also a number of well-established research fields that are sufficiently broad to accommodate exciting multidisciplinary debates. They can provide an intersection for meetings of academics that are eager to break out of the straightjacket of narrowly defined disciplinary questions.
This book attempts to show a cross-section of such work. Because it appears in an Asian studies series, it allows lawyers with an interest in Asia to approach topical issues without first having to decide into which of the narrow pigeon holes of legal specialisation such work can be placed. It also allows social scientists to examine the legal background of their research questions and to see how it interacts with the detailed knowledge of social context that only they can provide. The remaining part of this introductory chapter will follow the outline of the book and explain the chapters in context.
Law in the context of Asian development
Much of the more recent scholarship on Asian law has been focused on law in the context of Asian development (Jones, 1994; Antons, 1995, 2003b; Jayasuriya, 1999; Gillespie, 1999; Ohnesorge, 2003; Peerenboom, 2006). For those that became interested in such questions during the 1980s, this meant an initial concentration on commercial law and how it was applied in what became seen as the ‘Asian model’ of capitalism. The Cold War years were not conducive to broader visions of the ‘rule of law’. Especially in those countries that were seen as frontline states in the Cold War, and in the real wars that erupted in Korea and Vietnam, many au...
