Legitimacy, Legal Development and Change

Law and Modernization Reconsidered

David K. Linnan

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754677284
• eBook ISBN:
  9781317105817
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book addresses critical questions about how legal development works in practice. Can law be employed to shape behavior as a form of social engineering, or must social behavior change first, relegating legal change to follow as ratification or reinforcement? And what is legal development's source of legitimacy if not modernization? But by the same token, whose version of modernization will predominate absent a Western monopoly on change? There are now legal development alternatives, especially from Asia, so we need a better way to ask the right questions of different approaches primarily in (non-Western) Asia, Africa, the Islamic world, plus South America. Incoming waves of change like the 'Arab spring' lie on the horizon. Meanwhile, debates are sharpening about law's role in economic development versus democracy and governance under the rubric of the rule of law. More than a general survey of law and modernization theory and practice, this work is a timely reference for practitioners of institutional reform, and a thought-provoking interdisciplinary collection of essays in an area of renewed practical and scholarly interest. The contributors are a distinguished international group of scholars and practitioners of law, development, social sciences, and religion with extensive experience in the developing world.

Chapter 1
Introduction to Legal Development and Change

David K. Linnan

This book explores overlapping themes, asking how legal development and change actually work. We approach the questions in comparative, empirical terms, searching for answers in specific legal system examples, rather than pursuing theory in the abstract. Thus we ask questions about traditional schools like “modernization theory” or “Law and Development,” but we do so within a framework of 23 country chapters. There are now non-Western legal development alternatives, so we need a better way to ask comparable questions of different approaches.

At a practical level, we tackle the problem of “law in the books” versus “law in action.” Legal change is embedded in modernization, but presents an underlying “chicken or egg” question. Can law be employed to shape behavior as a form of social engineering, or must social behavior change first, relegating legal change to follow as a form of ratification or reinforcement of changed behavior? The problem is that most legal development efforts simply assume an instrumental effect. Yet that may be only the first in a series of issues. The hidden concern may be the relationship between legitimacy and instrumentalist approaches to legal development. But we also speak as though contemplating an ahistorical, homogenous society as subject, yet matters are rarely so simple. Meanwhile, if legitimacy is the bridge to social change through legal development, how do we conceptualize and examine social change when its motivating values may not be our own?

Legitimacy itself requires unpacking too, since it traditionally presumes in Western views of legal development certain relationships between government, civil society, citizens and growth. In a nutshell, how to understand the overlap in the context of legal development between the legal and economic fields, more or less in parallel with the overlap between the legal and political (democratization) fields? There are indeed values seemingly embedded in Western rule of law (ROL) work, particularly when examined at the level of ideas concerning the proper relationship between human rights, democracy and economic growth. But how shall we validly measure and evaluate ROL beyond comfortable Western boundaries?

Is a growing emphasis on non-Western alternatives the natural counterweight to the modernization concept’s implicit assumption of secular, national law as part of economic and social development? How then shall we deal with legal pluralism as feature of many developing countries? Modernization theory as the social science-based development concept of the 1960s addressed to traditional society in lower income countries was one thing, yet “modernization” is an ongoing process also in middle income countries in most of the globalized, developing world. But whose version of modernization will predominate absent a Western monopoly on change? And what is legal development’s source of legitimacy, if not modernization?

The acute focus from an American perspective is currently on the “failed state” phenomenon and, separately, the Islamic world. Meanwhile, among developing countries, Asia is broadly recognized as representing successful economic development worthy of emulation. The implicit disconnect is that the developing world may look to Asia as an economic success story, but American views of legal development currently look backwards to the transitional economies of culturally Western, formerly Socialist Europe in the 1990s. The practical question becomes how to bridge the gap to understand legal development and change in the non-Western setting.

Thematically, we first examine different approaches to the general problem of understanding legal development in empirical rather than ideological terms. We then shift to a more pointed inquiry targeting the overlap between customary, religious and secular law in legal development, including weighing the implicit question whether mostly conservative social views present in shari’ah law in particular are a product of religious views or social conservatism (tribalism). Finally, we look at several different countries and international law to address special aspects.

Changing the Rule of Law Narrative

Part I (of seven) of our book commences with five chapters addressing general aspects of legal development, legitimacy and modernization. Under differing points of view, donor-driven legal transplantation may encompass anything from traditional development assistance focused on economic growth, democratization and governance assistance, through trade facilitation technical assistance, to pre-/post-conflict and security sector, as well as generic rule of law assistance focused on law enforcement. Our own interest is directed more narrowly at legal development as part of traditional development, while still recognizing that law’s role in development changed when development itself began to target private foreign investment. The US government’s high profile working ROL concept in conflict and post-conflict countries (3C, or courts, cops and corrections) is somewhat misleading as pursued, but that same usage is paralleled in UN peacemaking/keeping/building activities. Such activity may serve foreign policy purposes, but is hardly legal development in any ordinary sense. Meanwhile, non-Western competition now exists in ordinary legal development, looking in particular to Asian examples.

David Linnan notes a surprising lack of attention to the empirical question whether and how legal development actually works. He raises the chicken or egg question addressing instrumentalist assumptions underlying Law and Development approaches, or, more recently, American ROL work generally. The question is whether today’s ROL efforts are simply a continuation of early 1960s modernization theory and the Law and Development approach in “old wine, new bottles” terms, harking back to questions about “liberal legalism,” argued links between democracy and economic development, and an intellectual partnership between American foreign policy and academic social science. A new form of modernization theory can rescue some of its earlier insights, but it should be equally applicable to non-Western legal development concepts also, focusing on demographic trends and the degree of urbanization present, and a renewed focus on social psychology (because of legitimacy concerns), in a change from the pure new institutional economics IFI focus since the 1990s. It also requires closer attention to individual behavior in adapting to ROL changes, since instrumental behavior is visible there. The problem with simple conclusions, however, is that the developing world itself is beginning to push the arguable bounds of ROL work from domestic to international law, pushing back in many ways independent of traditional formulations such as an assumed relationship between democracy and economic growth (e.g., in connection with climate change).

Joseph Isanga notes that, from the African perspective, ROL is understood as Westernization and a continuation of the Washington Consensus. Further, ROL approaches have not led to much economic improvement in Africa’s circumstances. They do not address well the reality that an overwhelming majority of Africans still live in rural (traditional) society, while even in urban areas traditional attitudes to authoritarian leadership have been carried forward. Some African leaders manipulate ROL and democracy claims to buttress their own political positions with the donor community (and anti-corruption laws being employed opportunistically to attack political opponents is not solely an African phenomenon). From an African perspective, more attention should be paid to issues like education as a precondition to real development, since democratic choice and governance are hollow concepts if exercised by poorly educated majority rural populations on the basis of ill-suited Western categories. Exemplary African leaders pursuing an African vision do exist, but they tend to be underappreciated in the West.

Andrew Harding and Peter Leyland examine the contradictions now visible in acutely polarized Thai law and society, particularly in Thailand’s juxtaposition of political stalemate and repeated governmental flip-flops between the (pro-Shinawatra, traditional rural-based) “Red Shirts” versus (nominally monarchist, modern Bangkok-based) “Yellow Shirts” in the Thai parliament and on Bangkok’s streets. The ultimate problem may be whether Thailand’s true constitution is an unwritten one based upon concepts of the Thai people like chat (nation), satsana (religion) and mahakesat (monarchy) as civic religion, versus Western categories of constitution-making incorporating the received formal categories like separation of powers and the judiciary. The current level of discourse challenging even principles like “one man, one vote” raises the question whether legal reforms were ever adopted on a principled basis, as opposed merely to serve the political interests of their proponents. So, in chicken or egg terms, what is the message about constitutionalism as applied within Thai society? Can legal and constitutional institutions overcome deep social divisions and divergent political outlooks (and a political culture focused more on individuals than policies)? Judging by Thailand’s example, social consensus must precede law.

Darminto Hartono addresses the empirical question of whether and how individuals learn to operate in a new, ROL-inspired legal environment. On the example of Indonesian corporate reorganizations following significant changes in insolvency law, the answer is that individuals are observed to learn, but behave instrumentally in pursuing new legal forms to their own ends. Here the object lesson is that legal development may change observed behavior, but that does not necessarily mean that it shapes underlying beliefs. Instead, compared to implicit ROL views verging on law as self-implementing norm, actors in the (changed) legal system navigate the changes to serve their own self-interest. This behavior is not unlike that of sophisticated parties in Western countries pursuing litigation among a portfolio of business strategies. At the empirical level, current instrumentalist views generally may overlook the idea that legal development in creating modern “commercial rules” may simply represent one more theater of action for commercial parties. And on the evidence of Isanga’s discussion of African leaders manipulating ROL efforts, Hartono’s perception of self-interested actors within a changing legal environment may not be limited to the commercial sphere.

Liu Dongjin describes changes in Chinese economic law dating back to the 1949 founding of the People’s Republic of China. Rather than following ROL lines, his presentation is a road map of practical experimentation in the service of China’s economic development in moving since the 1980s toward a market-based economy. To that extent, it is probably best viewed in the tradition of Japan’s nineteenth-century embrace of (Western) law as a means of modernization and development. Borrowings have come from many different external sources, while internal experimentation is chronicled over time. On a doctrinal level, China appears to share the Korean and Japanese experience of borrowing more in a technical sense from Civil Law rather than Common Law legal systems. Meanwhile, Liu notes that the Chinese distinguish between differing economic approaches within the West, finding the European (social democratic) approach to a market-based economy more congenial. China’s economic success calls into question the common assertion of an automatic link between democratization, modernization and rule of law raised also in David Linnan’s historical examination of the original modernization concept. This Chinese affinity for the European approach to the market implicitly entails a rejection of the Washington Consensus. This raises the issue in the ROL context of a “Beijing Consensus” offering a differing approach to markets (differing or alternate views of capitalism have been a staple of Asian economic development for decades). Liu’s description of the Chinese experience ultimately constitutes a counterexample for the Law and Development approach understood as “liberal legalism.”

Religious Law as Religious and Social Form

Part II of our book shifts its focus to the specific area of religious law encompassing in a practical sense both religious and social beliefs. The question is the extent to which rules may be claimed as religious imperatives, while actually representing effectively social or “tribal” norms. Implicitly the emphasis is on relatively sophisticated theological or theoretical discussion. Part III addresses how things work on the ground in a key Muslim majority developing country, specifically Indonesia. Assuming high legitimacy of religious views in many settings, how beyond theological disputation can we separate out tribal from truly religious norms and what is the relevance for our basic chicken or egg question?

Tarak Abdallah opines that modernization was originally based upon concepts of economic growth following the West. Meanwhile, conceptually development was shaped by neoclassical economic views, particularly IFIs attempting to implement the Washington Consensus. Within the Islamic world, conceptually modernization is typically interpreted as Westernization. The Islamic vision has been focused on the human dimension within societies at a level recalling more economic sociology than law. Those outside the Islamic tradition struggle with recognizing any concept of “law” in such discussions.

The Islamic view is that questions of governance surrounding social and economic relations lie at the heart of laws, compared to concepts like charity and endowment which play an analogous role to civil society under Western governance concepts (providing distance to the state). The ultimate result is a rejection of “market fundamentalism” under Islamic approaches as regulating mechanism (including the idea of a perfectly rational “economic man”), because it incorporates pure efficiency and utility-based approaches. Turning to discussions of modernization in the context of “traditional” versus “modern” societies, the problem from an Islamic viewpoint is the reductionism of Western economic thought which traditionally denies any value to economic history outside of capitalism and neoclassical economics apart from limited nascent discussion of concepts like “sustainable development.” The idea of a chicken or egg problem and instrumental approaches can be posed in the Islamic context insofar as the development of law is tied to development of institutions and human relationships.

Lily Zakiyah Munir initially distinguishes doctrinally between shari’ah as religious law and fiqh as its context bound human interpretation via ijtihad or consideration by Islamic scholars. Fiqh brings with it the frailties of any human interpreter including also its potential incorporation into secular law in modern Muslim majority societies, typically via a constitutional requirement of secular law’s “consistency” with Islamic principles. So how does one derive applicable principles in the Islamic context? The Islamic version of the chicken or egg problem is probably best understood in conjunction with two competing approaches to interpretation.

This involves a traditional preference for textual interpretation (via ahlul hadith, or people of the text) over ethically or rationally based interpretation (via ahlur ra’yi, or people of ratio). Textual approaches predominate in Islamic practice, with constant reference made to historical texts in a literal interpretive mode, as opposed to ethical modes of interpretation where the attempt is made to separate the general principles of a text like a Qur’anic passage from its historical framework on the Arabian Peninsula. Those pursuing strictly textual interpretive approaches to shari’ah seemingly assume that articulating textually derived rules will change behavior. Meanwhile, those believing that shari’ah should follow an ethical or moral interpretation seemingly believe that ethical beliefs must underpin social behavior, rendering it a precursor to changing behavior (behavior only follows ethical precept). This kind of division is particularly visible in the treatment of women under the differing approaches, but represents a wider interpretive pattern.

Peter Haas examines the problem of social change and legal development from a historical perspective via the reform of Jewish legal status in nineteenth-century Europe, particularly in France (1806–7) and Germany (1820–50). Since the Middle Ages, Jews residing in European countries typically had a semi-autonomous status under the local monarch allowing for the application of Jewish religious law (halacha) in a manner comparable to consular jurisdiction. The legal history of their formal emancipation lies buried in questions like the original significance of legal “capacity” for citizens under the Code Civil of Napoleonic France (abolishing all outmoded personal status forms like serfdom in favor of the autonomous republican citizen). The so-called Jewish question of the period was whether the historically separate community of Jews (a “nation” in nineteenth-century terminology) should be fully incorporated into the new French and German nations (assimilated in legal terms). The question of legal development and change arose in addressing whether and how Jews could lose their special status in favor of full citizenship; whether halacha would continue to apply to the Jews, or whether secular national law should take its place (bearing in mind the pattern of civil marriage generally, under which to this day the only “legal” marriage ceremonies are secular and take place at city hall—la Mairie in France, das Standesamt in Germany—while parallel religious ceremonies are deemed mere cultural exercises).

Formally speaking, the French example seems to support the proposition that French Jews could be made into French citizens in the eyes of broader French society by the social engineering exercise of top-down articulation of secular law. On the other hand, the German example appears to support the idea that social change must come first from the bottom up, since the legal assimilation question itself fractured the German Jewish community into competing segments based upon views of the relative legitimacy of halacha versus secular law.

Shari’ah, Customary and Secular National Laws’ Interplay in the World’s Most Populous Islamic Country

Part III of our book shifts the focus from religious versus social views at a higher theoretical level to the question of how legal development works on the ground in modern Southeast Asia as non-Western environment. We focus the inquiry on Indonesia as the world’s most populous Muslim developing country with circa 240 million inhabitants, of which approximately 89 percent are Muslims, even though Indonesia is not a sectarian or Islamic state in technical terms. Indonesia itself is a legally pluralistic environment, importantly recognizing for our purposes traditional ethnic or tribally-based customary law (adat), Islamic (shari’ah) and secular national law. To that extent it is a veritable laboratory for questions of legitimacy and legal development in the non-Western setting.

To provide the necessary depth of understanding of Indonesia’s complex law and society, Part III’s three chapters are intended to be read cumulatively. Robin Bush’s chapter provides a historical framework for the political and legal interplay between Islamic forces and Indonesian nationalism at the constitutional level reaching back to the colonial period. Julia Suryakusuma’s chapter is written from the modern female Muslim social commentator’s viewpoint, addressing issues of conservative Muslim religious groups’ voice, religious influence on women’s place in society in the wake of Indonesia’s veritable democratic explosion since 1998, and controversial anti-pornography legislation with differing significance for different social groups. Suryakusuma speaks implicitly from the position of “modern” Indonesia, meaning here Jakarta as major urban area comparable in size and sophistication to New York or Tokyo. Erman Rajagukguk’s chapter is a legal ethnographic work addressing the interplay between adat, shari’ah and secular national law in women’s inheritance matters among the Sasak ethnic group on Lombok Island, a more traditional rural society (although now exposed to tourism, since Islamic Lombok lies close by Hindu Bali with comparable beaches).

Robin Bush addresses Islam and constitutionalism in Indonesia. Nationalist and religious elements have coexisted in Indonesian politics under varying degrees of tension since late colonial times. To avoid threatened secession by the Christian majority islands of Eastern Indonesia, something of a grand bargain was struck at independence under which religion was recognized as important constitutionally, but Islam as such was specifically not given any special or superior status. For the next 50+ years much of Indonesia’s Islamic religious and political leadership periodically tried to revisit and reverse this grand bargain in the name of recognizing some kind of special status or treatment for Indonesia’s M...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Contributors
• Acknowledgments
• 1 Introduction to Legal Development and Change
• PART I: CHANGING THE ROL NARRATIVE
• PART II: RELIGIOUS LAW AS RELIGIOUS AND SOCIAL FORM
• PART III: SHARI’AH, CUSTOMARY AND SECULAR NATIONAL LAWS’ INTERPLAY IN THE WORLD’S MOST POPULOUS ISLAMIC COUNTRY
• PART IV: JAPAN’S ONCE AND FUTURE LEGAL MODERNIZATION NARRATIVE
• PART V: LATIN AMERICA, POST CONFLICT AND THE JUDICIARY
• PART VI: RUSSIA AND THE STATE: A WINDOW ON MODERNIZATION
• PART VII: INTERNATIONAL LAW AS LEGAL DEVELOPMENT SUBJECT
• Index