COMPARATIVE & ASIAN LAW
Prof. Veronica Taylor
Coverage of issues follows about what are the differing approaches to comparative law (old and new), the traditional take on what it means to be a civil law versus common law country, current views of legal development generally, what exactly does it mean to talk about the rule of law, and issues about what may be special about Asian legal development.
Australian Journal of Asian Law
Asian Law Abstracts (www.SSRN.com)
Benedict Anderson, Imagined Communities (Verso 2nd ed, 1991)
Drysdale, Peter and Amyx, Jennifer (eds) (2003) Japanese Governance: Beyond Japan Inc. New York and London: Routledge.
Timothy Lindsey (ed) Indonesia: Law and Society (2nd edition) (Federation Press forthcoming, 2004)
Randall Peerenboom (ed) Asian Discourses on Rule of Law (Routledge, forthcoming, 2003)
Arthur Rosett, Lucie Cheng and Margaret Y.K.Woo (eds) East Asian Law – Universal Norms and Local Cultures (RoutledgeCurzon, 2003)
Veronica Taylor (1996), ‘Beyond Legal Orientalism’ in Veronica Taylor (ed) Asian Laws Through Australian Eyes (LBC, 1996)
Asian Law and Development
Christoph Antons (ed) Law and Development in East and Southeast Asia (RoutledgeCurzon, 2003)
C-LIR Handbook (1999) Commercial Legal and Institutional Reform (C-LIR) Assessments for Europe and Eurasia, Diagnostic Methodology Handbook, USAID Omnibus II-C: Policy/Legal/Training Contract No EPE-I-95-00071. Task Order No EPE-I-09-95-00071-00, 15 November.
Dezalay, Yves and Garth, Bryant G (2002) Global Prescriptions: The Production, Exportation and Importation of a New Legal Orthodoxy. Ann Arbor: University of Michigan Press.
Djankov, Simeon; La Porta, Rafael; Lopez-de-Silanes, Florencio and Shleifer, Andrei (2001) ‘Legal Structure and Judicial Efficiency: the Lex Mundi Project’ (unpublished revised draft October, on file with author) subsequently published as (2003) ‘The Practice of Justice’ Quarterly Journal of Economics
Garnaut, Ross (1998) East Asia in Crisis: From Being a Miracle to Needing One? New York and London: Routledge.
Ginsburg, Tom (2000) ‘Review Essay: Does Law Matter for Economic Development? Evidence from East Asia’ 34(3) Law and Society Review 829
Thomas B Ginsburg, Judicial Review in New Democracies: Constitutional Courts in East Asia (Cambridge University Press, 2003)
Jayasuriya, Kanishka (1999a) ‘The Rule of Law and Governance in the East Asian State’, 1 Asian Law 107.
Jayasuriya, Kanishka (ed) (1999b) Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions. New York: Routledge.
Kaufmann, Daniel, Kraay Aart and Zoido-Lobatón Pablo (1999) ‘Governance Matters’, Policy Research Working Paper 2196 The World Bank Development Research Group, Macroeconomic Growth and the World Bank: Institution Governance, Regulation and Finance October 1999: (www.worldbank.org).
North, Douglass (1990) Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press.
Pistor, Katarina and Wellons, Philip A (1999) The Role of Law and Legal Institutions in Asian Economic Development 1960-1995. Oxford: Oxford University Press
Naoyuki Sakamoto, Masayuki Kobayashi and Shinya Imaizumi (ed) Law, Development and Socio-Economic Changes in Asia (Institute of Developing Economies: JETRO, 2003)
Teubner, Gunther (1987) ‘Juridification: Concepts, Aspects, Limits, Solutions’, in Gunther Teubner (ed), Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor Corporate, Antitrust, and Social Welfare Law. Berlin, New York: De Gruyter
Shahid Yusuf et al, Innovative East Asia (World Bank and Oxford University Press, 2003)
Comparative Law and its Critics
René David and John EC Brierly, Major Legal Systems in the World Today, 3rd ed (1985)
Fitzpatrick, Peter (1992) The Mythology of Modern Law (Sociology of Law and Crime). New York and London: Routledge.
Richard Hyland, ‘Comparative Law’ in Denis Patterson (ed) A Companion to Philosophy of Law and Legal Theory (Blackwell, 1996) 184-198
Pierre Legrand and Roderick Munday (eds) Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003)
Annelise Riles (ed), Rethinking the Masters of Comparative Law (Hart Publishing, 2001)
Frank K. Upham, ‘The Place of Japanese Legal Studies in American Comparative Law’ Utah Law Review (1997)
Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, 3d ed trans by Tony Weir (OUP, 1998)
Comparative Law and Globalization
Michael Likosky (ed) Transnational Legal Processes: Globalisation and Power Disparities (Butterworths LexisNexis 2002)
William Twining, ‘Mapping Law’ in William Twining, Globalisation and Legal Theory (Northwestern University Press, 2000) 136-173
William Twining, ‘Globalization and Comparative Law’ in William Twining, Globalisation and Legal Theory (Northwestern University Press, 2000) 174-193
Sociology of the Professions
Stanley Fish, Professional Correctness: Literary Studies and Political Change (Harvard University Press, 1995)
SUBSTANCE OF COMPARATIVE VERSUS ASIAN LAW
Classifying legal systems: the 19th century approach
Comparative law is a creature of the late 19th century and the Enlightenment belief that the world would be better if the major legal systems of the world – at that time understood as common law and civil law, later with the addition of socialist law - could be understood and harmonized.
The ‘project’ of comparative law was essentially focused on private law, with sub-fields such as comparative constitutional and administrative law (e.g. Ginsburg, 2003) emerging relatively recently. Graziadi (in Legrand and Munday 2003:100) argues that this focus can be explained by a very concrete need in Europe to solve conflicts of law issues.
Comparative law was distinguished early by a broad adherence to the ‘functionalist method’ – the idea that law responds to society’s needs; that societies are faced with similar social problems that require the application of law; and that, rather than expect identical legal rules to emerge, we should search for similar problem at which the legal solution is aimed; we can then compare the operation and ‘function’ of the legal rules or devices in different systems.
The paradigm of functionalism is well-represented by the classic comparative text, An Introduction to Comparative Law (Zweigert and Kötz, 1998), which is largely concerned with theoretical problems of contracts and tort and how to define problems. As Graziadi points out, ‘mistrust of municipal legal categories is a central feature of this method …National legal concepts are the screen behind which comparativists locate what is relevant for their research [and] each national solution “must be freed from the context of its own system”’ (in Legrand and Munday 2003:106)
Legal ‘Families’ and Clustering of Systems
Another key feature of what we might call ‘classical’ comparative law is its focus on taxonomy – the sorting of legal systems by type or characteristics. This kind of approach seems to have been particularly influential in the pre-WW2 period, and draws some inspiration from turn of the century ideas about extending the classificatory systems of science to the ‘science’ of law.
The great advantage of taxonomies is that they simplify and systematize data collection and make intra- and inter-group comparisons easier. The great danger of taxonomy is that the temptation to see relationships and similarities obscures the unique characteristics of the item in question.
For a comparativist pursuing functionalism, however, systematically assigning ‘characteristics’ to clusters of legal systems and their legal institutions seemed to make sense. The taxonomy that emerged was focused on formal, institutional characteristics of law in clustered ‘families’ of law – i.e. legal systems that were assumed to be similar because of the similarity of their institutional design features and or history.
Different scholars adopted different taxonomies; Rene David (1985) and (Zweigert and Kötz, 1998) are representative. Typical groupings include the common law systems (England and its former colonies); the civil law systems (France and its former colonies; Germany and its former colonies; Spain and Portugal and their (Iberian) colonies; Socialist legal systems (meaning the then USSR and its satellites) and then, in no particular order, Scandinavia, Africa, the Far East, Islam.
You may see immediately that these clusters or ‘families’ are themselves not all alike. This is a Euro-centric project in the sense that the England-France-Germany comparisons are pivotal, and the focus drops away quite sharply as we move further from Western Europe. William Twining (2003) has dubbed this the ‘country and Western’ approach to comparative law.
Note too, that the very distinctive intra-group differences are collapsed by this kind of labeling. After WW2, the economic dominance of the United States and the centrality of law and the legal profession within its economy prompted a wave of studies of the distinctiveness of the American legal system in comparison with other ‘common law’ countries. In parallel to this is a significant body of work on how legal systems that belong to the British Commonwealth borrow from one another but have evolved in quite distinct ways, even in areas such as contract and tort that are central to comparative legal studies.
Classical comparative law also marginalized Socialist law as a field of study in the west. Socialist law following the creation of the USSR was/is essentially civil law-based but a long and heated debate centered on whether socialist law was indeed law, given its subordination to the dictates of the Party. One side effect of this was the minimal attention paid to the study of Russian law and the legal systems of countries within the Soviet Union or its influence prior to 1990.
Asia (or the ‘Far East’ in this taxonomy) is quite marginal and mixes together very disparate legal systems indiscriminately (Taylor, 1996a) Marfording shows, for example, how very unlike the legal systems of China and Japan are today, whatever their historical connections were, and how unhelpful the classical taxonomy is for the purposes of studying law in Asia (in Taylor, 1996b)
Nevertheless, the taxonomy of comparative law was, and is, very influential in shaping our views of how different legal systems work and why. Tabulated below is an example of some of the characteristics assigned to key legal institutions in the ‘common law’, the ‘civil law’ and the socialist law’ worlds of the 20th century.
Comparative Classifications based on Institutional differences
(England, later the US)
(French or German influenced)
(USSR and its satellites)
‘Tradition’ or core philosophical tenets
Natural law – law should embody ‘justice’
Equity derives from religious law
Roman law influence on private law
Rule of law ideals – e.g. separation of powers – a ‘rule of law’ concept developed in ignorance of and in opposition to, French administrative law
In France, revolutionary law becomes the Code Napoleon – a set of ideals that require mere application by judges;
In Germany, a ‘scientific’ Code that seeks to anticipate all contingencies
The Rechtstaat – i.e. the state’s capacity to make law and the legality of the law is the key issue
Law is an instrument of the Party and a tool for social planning and control.
As a tool, law can be changed regularly
The Party – not the legislature or the courts - remains its final arbiter.
Form of Legislature (currently)
In England: a unitary legal system; until recently a partially unelected legislature; an unwritten Constitution, now overlaid with EU law
In the US: a federated system and a written Constitution with progressively articulated rights
Varies with the country, but the state and its bureaucracy is given considerable deference
(In Russia): Presidential system and highly centralized Parliament with powers of regional representation a contested issue
Statutes made by Parliament and regulation-making power delegated to bureaucracy.
Statues tend to be drafted in detail
Codes supplemented with special statutes as necessary.
Codified law, with changes as necessary that may or may not be announced.
What is not permitted is forbidden.
Bureaucratic tradition and administrative law
In England: an independent, professionalized bureaucracy, with a legacy of considerable power and discretion, now subject to judicial review
In the US: a politically appointed Executive and bureaucracy at senior levels; strong emphasis on judicial review as a result
Tradition of strong bureaucracy and relatively little accountability; administrative challenges to the state separated out from regular actions in the courts (sometimes into administrative courts – influencing common law systems’ adoption of administrative tribunals)
Bureaucratic fiat is the real locus of authority; legal rules are adapted to local conditions but not open to appeal.
Review of administrative action is a new and contested concept
In England: judges appointed from the ranks of senior advocates (often with extensive commercial experience); not explicitly political appointments
In the US: both political appointees and elected judges – often from the ranks of experienced lawyers
Judges are expected to both interpret statutes and to make law and develop the common law (or case law)
Career judges, apprenticed directly after graduation.
In formal terms, judges are expected to interpret the Codes; in practice they make law in a similar way to their common law counterparts
Judges are agents of the state (not checks against it) and are thought to be subordinated to the will of the Party.
May or may not have formal legal training
Increasing convergence to civil law model
In England: split into specialist advocates (barristers) and transactional lawyers (solicitors).
Self-regulating apprenticeship system for entry.
In the US: a unified bar, regulated through an open exam in each state jurisdiction.
Largest profession worldwide with great variation in quality and specialization. Invented the transnational law firm.
In both: High degree of mobility between branches of the profession
Traditionally, localized legal practice.
Minimal mobility between branches of the profession.
Were largely irrelevant for transactional purposes; typically functioned as a criminal defense Bar
This kind of comparative table gives us some stylized ‘facts’ but these do not really resemble the contours of any legal system actually in operation today.
Because this kind of comparative table is deceptively simple (and requires no first-hand knowledge of the legal system being studied, it has been reproduced in narrative form in many comparative legal textbooks during the 20th century.
The nexus with economics
Most recently we see the classical comparative taxonomy taken up and applied by economists, with (what to comparative lawyers are) startling results. This is not really surprising – presenting legal systems as clusters of rules and institutions which can be distilled into a finite set of attributes for classification is helpful for macro economists who are concerned modeling systems and aggregating large amounts of data. We return to the nexus between Asian law and economics further below. Consider first, however, the application of the classical taxonomy to the stylized economic problem posed immediately below.
Applying the classical taxonomy: the Lex Mundi Project
A recent World Bank project, undertaken as part of the World Bank’s World Development Report 2002 is ‘Legal Structure and Judicial Efficiency: the Lex Mundi Project’ (Djankov, La Porta et al, 2001). Rather than being an assessment of completed law reform, it is intended to be a diagnostic tool that flags the need for reform in judicial systems that, in the authors’ view, over-optimally regulate dispute resolution. The study is interesting in that it spans 105 countries and attempts to compare the ‘judicial efficiency’, of each based on fresh survey data from cooperating law firms.
The study presents two hypothetical problems – eviction of a tenant for non-payment of rent and collecting on a bounced check. The authors ask one lawyer per country within the Lex Mundi and Lex Africa association of law firms to describe in detail the steps required in pursuing each of these problems within the court system. By looking at seven categories of regulation the authors then construct an index of regulation of dispute resolution. In this study regulation is defined narrowly, as formal legal rules, while dispute resolution is used as a synonym for court-based adjudication.
The hypothetical benchmark of efficiency used by the authors is Shapiro’s triad in which a neighbor resolves a dispute between two other people. The authors compare the ideal with pursuit of a small claim in a court of first instance, as a way of gauging ‘access to justice’ within the legal system for the ordinary individual. The study finds that dispute resolution is ‘more heavily regulated in civil than in common law countries’ and that ‘regulation of adjudication is heavier in less developed that in rich countries’ (2001:6). Since the majority of legal systems in the world today are, at base, civil law systems and are located in developing countries (something that the authors fail to note), this means that most countries in the world ‘over-regulate’ dispute resolution as defined in this study.
This a commonsense proposition for comparative lawyers, some of whom would also observe that the division of the world into common law and civil law countries is factually inaccurate – almost every legal system today is a hybrid and this is particularly evident in civil procedure and administrative review. Nevertheless, we can also see the overt supervision of proceedings by the judge in civilian settings as manifesting a legal mentalité and philosophical stance on the nature and role of the state, the legal system and civil litigation that is culturally and historically distinct from the party-driven proceedings of the common law worlds.
Specifically, however, in comparing legal systems, the authors find that, in eviction, ‘common law and Scandinavian legal origin countries [have] …shortest duration and socialist and formerly socialist countries [are] at the bottom’ (2001:34) In other respects, ‘using measures of the efficiency of the legal system from other sources, German and Scandinavian legal origin countries score the highest, with common law countries next, and French civil law countries the lowest’ (2001:34). So, from this study we might deduce that developing countries unlucky enough to have inherited French or French-influenced Dutch law through colonization (e.g. Indonesia) and post-socialist transition economies (e.g. Eastern Europe, Eurasia) will tend to be handicapped with relatively more time-consuming and more heavily regulated civil procedure. This, the authors argue, is likely to result in ‘extreme costs and delays, unwillingness to use the court system, and ultimately injustice. At least some of the burdens of such heavy regulation of adjudication may be therefore unnecessary and could be relieved through reform’ (2001:40).
Many countries could alter their civil procedure rules to make evicting a tenant or recovering a debt quicker and subject to less intervention by judges. However, studies such as this one beg the question ‘Why don’t they?’ The traditional comparative law scholarship cited offers only a rather weak analysis of the historical origins of procedural forms without considering their social and political significance today. For socio-legal scholars the differences are explicable because access to the formal venues of law are often restricted for political purposes, or because there is a cultural belief that formal legal proceedings are socially corrosive, or because the professional monopolies of lawyers and notaries perform a powerful gate keeping role. Judicial intervention may be a technique used to informally regulate the market by sending normative messages to prospective litigants, or to forestall social dislocation, or to promote settlement rather than fully litigated outcomes. Here the studies by Haley and Upham on Japan are relevant and should be read against Kagan’s important comparative work on adversarial legalism.
The Lex Mundi study has value to the extent that it makes transparent some of the policy choices being made deliberately or by default by nation states. However, some history would help. Some of the ‘efficiencies’ being identified in this study are of recent vintage and represent, not some immutable difference between the civil and common law worlds, but juridification used as a regulatory technique by the state. Teubner observes, for example, that the legal systems of the US and Europe have been pressed into service to ‘constitutionalize’ the economic system. The regulatory state deliberately channels social conflicts (such as evictions and debt collection) to the courts or to court alternatives, where litigants receive a guarantee of quick, judicial intervention that at the same time deprives them of other, non-legal strategies and masks any political dimension of the dispute (1987:395). ‘Access to justice’ for the ‘ordinary person’ is an ambivalent concept and needs to be understood as such, even if, as in this study, the overriding normative priority is ‘efficiency’. It would be a more persuasive study if it went to ask the reflexive question whether, and on what basis, procedural efficiency should be the dominant value in a legal system.
This study assumes that civil law courts would be better institutions if they were ‘de-regulated’, an analytic step that ignores regulatory theory suggesting that the outcome of ‘deregulation’ is usually more interventionist ‘re-regulation’ and that this is as true of legal and non-legal adjudication as it is elsewhere. By treating courts as simply processing venues for problems with generic transactions, the study fails to provide a nuanced analysis of what the court as an institution represents in different legal systems and what litigation means in different kinds of cases. The authors try to hedge the latter question by disavowing interest in complex litigation prosecuted by business interests and in ‘difficult’ cases such as divorce. This does not temper their claim that the study furnishes firm evidence on which to advance broad procedural reform in the civil law world – a claim that many lawyers would find fairly unpersuasive.
The contemporary utility of the classical taxonomy: alternative approaches and more detailed contours
The ‘legal families’ approach in classical comparative law is a remarkably durable mindset. It is simple, convenient and contains some characterizations that seem broadly accurate. After all, lawyers and judges and prosecutors in the US, China, Russia, France and Singapore are different, are they not? They are educated differently, train differently, do different kinds of work and think differently. Conversely, when lawyers from Germany and Japan, or Australia and Canada, get together they typically have much to discuss because their mindsets and legal institutions have much in common.
At this rather abstract level, the functionalist and taxonomic approaches of comparative law yield useful ‘mind maps’ and preliminary propositions for starting conversations or comparisons.
Similarity v Difference
Classical comparative law had tended to emphasize the similarity of legal systems (or at least the similarity of functional approaches within systems) in order to facilitate comparison and, ultimately, harmonization of legal rules. A modest example of the harmonization impulse is the Convention on the International Sale of Goods (CISG), which combines both civil and common law concepts of contract formation and remedies. A more radical and ambitious project is the current attempt to fashion a Civil Code for the EU, distilling from a range of civil codes (and the common law) some core principles that could be universally applicable. Predictably, this has given rise to passionate debate.
It is true that there are traditions and legacies that can be identified across legal systems or within legal families and that there are marked and commonalities among legal systems that are historically related to one another e.g. the mentalité of judges; legislative drafting styles; the form of judgments; and historical evolutionary paths of the legal profession. Upon closer study, however, these resemblances also yield many differences that are specific to countries.
However, Richard Hyland (1996) points out that the comparison of legal systems in the contemporary world might be more fruitful if it concentrated on what is different as between systems and why, rather than focusing on elusive (or superficial) similarities.
Part of the impetus for Hyland’s interest in ‘difference’ is undoubtedly the post-WW2 boom in legal sociology. In the United States this drew in part on the intellectual legacy of the legal realists of the 1920s and 30s, epitomized by Karl Llewellyn’s study of legal norms among Native American tribes and influencing his approach to drafting the UCC.
When we described classical comparative law above, we framed it as being deliberately unconcerned with context and primarily aimed at an understanding of formal law and formal legal institutions.
Legal sociology by contrast is concerned with the operation of law in context – the political, social, economic, and geographic and other influences that shape the formal nature of law and the people who are its agents. When legal sociology is comparative it necessarily yields a great deal more contextual information than the classical comparative functionalist approach, and does so without necessarily having a normative conclusion, such as a recommendation about harmonization.
The ongoing tension between the two fields is discussed in detail in Legrand and Munday (2003).
The sociological perspective and the rich data that it yields through empirical research highlight a number of key problems with classical comparative law. We select just a few of these here:
· Considerable variation within the same ‘family’
The US, for example, is dramatically different from other common law systems. Try comparing US and English law and legal institutions. Consider, for example, that Australia and Canada (‘common law’ systems) and Japan (a ‘civil law’ system) are all parliamentary systems with a sovereign as head of state; institutionally they may have more in common with each other than they do with the United States, another common law system and Japan’s occupier (1945-1953).
· Hybridization is universal
No legal system today is purely ‘common law’ or purely ‘civil law’. Every industrialized state has borrowed legal concepts and institutions from elsewhere or has had them imposed through multilateral agreement (e.g. EU law, WTO law). Socialist systems are adopting aspects of both civil and common law legal traditions. Common law countries have been deeply influenced by civil law and vice versa (e.g. Britain’s entry into the EU; the spread of the Scandinavian concepts such as the ombudsman and freedom of information; and French concepts of administrative review embedded in administrative tribunals in common law countries)
· Legal concepts and institutions look very different after export (or import)
Consider the common law legacy in India or in African states, compared with contemporary law in England. Consider the Dutch legal influence in Indonesia and how differently the Indonesian and Dutch legal systems and cultures function today. Consider the German legal legacy in Japan and systemic differences between these countries.
· Even apparently similar or identical legal rules or institutions may function quite differently in different places, for important social or political reasons
Rules about how to buy or sell or lease real estate are a good example. Although land and buildings look superficially similar the world over, the sale of land or the lease of a house are transactions that are freighted with great economic, social and political significance. Typically there are significant procedural differences even among legal jurisdictions within the same country. You can test this empirically by doing a comparison of the steps necessary to buy a house in different legal systems. You can also consider the problems of formalizing land title in post-colonial states and in developing states.
· Law is more than simply a tool for problem solving of dispute resolution
The functional approach by definition limits the role of law to establishing rules for transactions or procedures for dispute resolution. ‘Law’, however, is a much broader and more contested concept. At the very least it includes elements that are symbolic, as well as aspirational values and political compromises that do not translate well into rational ‘rules’.
· Most legal systems incorporate some form of legal pluralism
In most legal systems, more than one formal or informal legal system operates simultaneously. We often think of law as modern, secular, formal, documentary law. In most of the world it is not, or this is not the only type of law in operation. Legal systems where religious law is important, for example, but is not the law of the state (e.g. Indonesia) or where customary law and/or religious law are the dominant ordering systems, particularly in rural areas, e.g. sub-Saharan Africa are numerous. Problems of conflicts of law, the manipulation of legal orders for social or political ends and the making of ‘modern’ law for urban or commercial communities that may have little impact (or a negative impact) on other communities are frequent.
Classical comparative law was not explicitly political, that is, it largely ignored the political dimensions of law and focused on legal rules and institutions in a formalist or positivist way, treating them as ‘given’.
This is not to say that comparative law was not used for political ends. As the world of the 19th century was carved up by colonial powers, studying the norms and society of the newly-acquired territory was an important enterprise, and mobilizing local rules and local agents to enforce social stability was a deliberate strategy. This history is central to understanding the Malaysian and Indonesian legal systems, for example. We typically point to adat law, meaning customary law, as being a fundamental element in the Indonesian legal system, for example, but ‘law’ was a suffix added by Dutch scholars in the service of the colonial state to build this into a legalistic system of social ordering. Whether adat was then or is now understood as ‘law’ is highly debatable.
Postmodern scholars such as Edward Said and Peter Fitzpatrick (see Taylor, 1996a) argue that part of the 19th century exercise in comparative law, which remains deeply influential today, is to study the law of the ‘other’ place in order to better show how modern and superior our own law/rules/institutions/professions are.
One example of this intellectual legacy is the current debate about Turkey’s entry to the EU. In the 19th century topography of comparative law, Turkey marked the boundary between European civilization (and law) and the Islamic world, despite Attaturk’s creation of the modern secular Turkey in 1923 as the last vestige of the Ottoman Empire. Today as Turkey’s ‘human rights record’ is described as a barrier to its entry into ‘Europe’, we see that symbolic dividing line between polities and legal systems very much evident.
Of course the legal world of the 21st century has a very different geography to that of the 19th century. One of the key differences is that classical comparative law is focused on the state as the main actor and the law made by states within state boundaries. But consider the impact of globalization and the role of professional groups, NGOs, ‘civil society’ groups and supranational groups in making ‘law’ and law-like rules in the 21st century. Sources of law in the 21st century are diverse:
How do we account for all of this regulatory activity, and the diversification of ‘demand’ and ‘supply’ of law, within the traditional taxonomy? The complexity and overlapping nature of sources of law, both hard and soft, is a major theme of scholarship within political science, international law (e.g. Likosky, 2002) and sociology of law, but has not yet been fully embraced within comparative law.
The major shortcoming of classical comparative law from our perspective is that neither of its core approaches – taxonomy and functionalism - ‘map’ onto any legal system in existence today and they are supremely unhelpful when thinking about Asia.
Asian law is not comparative law. At first this might seem counterintuitive. The average US law professor typically understands comparative law as being ‘the law of places outside the US, mainly Europe’ – what Twining (2000) calls the ‘country and Western’ approach to comparative law. Viewed in this way, ‘Asian law’ looks like the other side of an otherwise imperfect comparative law equation: inserting ‘Asia’ where we previously only had ‘Europe’. The problem, of course, is that both ‘Europe’ and ‘Asia’ are invented places (Taylor 1996a; Anderson, 1991) and our interest in them is political and economic, whatever protestations we might make to the contrary.
Pierre Legrand and Roderick Munday’s Comparative Legal Studies: Traditions and Transitions (2003) underscores the point. This book is a kind of centenary celebration of the Paris unveiling of comparative law as a field and presents a sophisticated and searching analysis of the limits and residual value of comparative law. It is the most interesting comparative law book since Riles’ refreshingly inconclastic look (2001) at some of the canons of comparative law and their promoters. At the same time, however Legrand and Munday more or less cement the (d)rift between comparative law and Asian law as professional groupings.
Mitchel de S.-O.L’e Lasser, in an essay confronting the charge that comparative law lacks methodological reflection and theoretical foundation, comments in passing: ‘It is less than clear why Japanese legal studies, to take Frank Upham’s example, should effective be placed outside the ambit of the US discipline of comparative law or why the much decried and yet routine, analytic exclusion of ‘Third World’ legal systems should continue to persist within the discipline’(De S.-O.-L’E Lasser, 2003:218 in Legrand and Munday, 2003). Unfortunately his essay and the book go on to do precisely that.
The closest approximation to Asia in the book is Esin Örücü’s essay on ‘Comparativists and Extraordinary Places’ (exemplified by Turkey and Hong Kong), which argues that;
Systems in transition and in ‘extraordinary places’, looking at the pool of competing models available in western Europe, America and the Far East (sic) with the purpose of redesigning and modernizing their legal, economic and social systems, will be involved in more import as the ‘ordinary’ models compete to sell their legal products, each one packaging its own model as the most efficient, the one to be preferred to others ...putting a foot in the door of the economic markets in ‘extraordinary places’.(Örücü, 2003: 489)
This is, of course, an uncontroversial account of states shopping in the bazaar of legal models and advisors, but from an Asian law perspective, the ‘extraordinary places’ identified are hardly that. For a Chinese or an Indonesian law specialist, or someone with broader knowledge of Asian legal systems, each country in Asia has a legal system and legal institutions with an internal logic and a historical, political and economic story that is familiar, navigable and normal. That kind of sensibility is portable across nation-state and cultural boundaries.
‘Doing’ Asian Law
So, apart from its non-inclusion in the canon of classical comparative law, how do we characterize ‘Asian law’?
The first and obvious element is that we study the legal systems and cultures of Asia. This is less clear than it seems – try looking at a map and deciding where Asia is. Think about how and why you might include certain countries – how about (a)Turkey; (b)formerly satellites of the USSR such as Uzbekistan; (c) Russia;(d) Afghanistan (e) Azerbaijan (f) Armenia (g) Timor Leste? What criteria would we use for inclusion/exclusion? Why?
Political history teaches us that the boundaries and labels and sub-labels are almost infinitely malleable and can be manipulated for particular purposes. Recall former Malaysian Prime Minister Mahathir’s assertions about the uniqueness of ‘Asian values’ – which ‘Asian’ countries did he have in mind?
The second factor is to recognize that Asian law is an invented field – but a useful intellectual and policy area nonetheless. Neither North America nor Australia, of course, has an ‘Asian Law Association’. Rather, when we start to ‘map’ the Asian law enterprise we find a very wide range of participants from diverse backgrounds and disciplines working on Asian legal systems in a range of different ways. At the very least we can include area studies scholars in a range of disciplines, law school professors, political scientists, practicing lawyers, consultants, economists, lawyers working for think tanks, government lawyers, lawyers and non-lawyers in development agencies and lawyers and non-lawyers in NGOs active in Asia.
Asian law scholars and practitioners tend not to obsess about their ‘method’; the style of work and the techniques and theories employed is very varied.
Following Fish, I suggest that the ‘field’ is constituted by people whose approach is in sympathy with, or will stimulate their own sense of ‘how we do things round here’:
Stanley Fish’s insight is part of a larger argument about why English literature cannot (and in his view should not) become interdisciplinary and why English scholars should resist the siren call of relevance and the prospect of redefining themselves into a field such as cultural studies.
His trenchant defense of his discipline reminds us that both academic fields and professions are constituted in opposition to, or to preempt, another professional grouping. So it is with ‘Asian law’ – most of us who self-identify as Asian law specialists are very clear that what we do is not classical comparative law, nor Anglo-American law, nor international law, nor necessarily legal sociology, but something conceptually and substantively different. I have written elsewhere about the epistemology of Asian law in Australia (Taylor, 1996a) and so omit further discussion here, except as it relates to the themes that I take up below.
Not every scholar in North America or Australia who works on Asian legal systems is sold on ‘Asian law’ as either a concept or an operational field. We have to acknowledge at the outset that ‘Asian law’ is a problematic term that is not neutral, but is created for and molded to our own professional, political, economic and social purposes.
Historically in North America (and in Australia in the 1980s), the two ‘big’ Asian legal systems, Japan and China were in the ascendancy. It made sense to study them for geopolitical and trade purposes. They remain important today, although my casual observation is that China seems to have overtaken Japan as a target of policy interest, and this is reflected in enrolments in Chinese versus Japanese law and in the interest expressed in legal practice and business circles about China. It remains to be seen whether the current round of regulatory reform in Japan will redress the widely-held belief that there is not much more to learn about, much less from, Japan.
In the US today law schools remain remarkably faithful to this post WW2 / post Cold War country-specific model of specialization in a single country. Many legal scholars are happy to identify themselves as specialists on either China or Japan, and indeed some assert that it is not possible to do meaningful work if you move beyond a single country comparison with the US. As a consequence, courses in Chinese law and Japanese law are well-represented across the US, while Korean law and Taiwanese law remain very shallowly rooted in law school curricula. Russia, including the Russian Far East is a relatively new, post-1990 focus of study.
South East Asia is a relative latecomer in US law schools. When I asked about this in 2000, I was told “South East Asia is simply not a policy priority for the United States and you will have a hard time selling people on SE Asian law”. Sadly, the events of 9/11, the emergence of Al Qaeda, the Bush Administration’s “War on Terror” , the discovery of terrorist cells in Indonesia and the Philippines, the Bali bombing and the bombing of the Marriott hotel in Jakarta speak for themselves. The average American law professor now has a much keener sense that America’s security interests extend into SE Asia. Nevertheless, the institutional capacity for SE Asian law remains constrained, even in a huge economy with a well-developed legal services market. You can literally count the number of competent scholars in Indonesian, Thai or Vietnamese law on the fingers of one hand, and name the one or two people who have each invested professionally in Central Asian or Islamic law.
The same is true of South Asia. Some law schools, including my own, are building exchange networks with counterparts in India, Pakistan, Nepal and Bangladesh, but these are not countries that are the focus of serious study in law schools. This is notwithstanding the fairly recent realization that the US is increasingly dependent on India, in particular, for both labor in the technology sector and for the outsourcing of all kinds of services, from telephone customer service to radiography.
The structural reasons for this are not very complex. Although the world has changed markedly in the last 10 years, institutional lag is to be expected.
In the United States, particularly, market capitalism of an extreme variety, coupled with a decentralized polity, seems to produce young lawyers who must practice in corporate law jobs in order to repay their college and law school loans and who are inclined to ask ‘Will studying Asia and/or an Asian language gain me a secure well-paid job?’ rather than ‘Looking ahead 10 years, what are the institutional and policy needs of the country and where are jobs likely to emerge?’. Accordingly, much (if not most) of the Asian law expertise in the US is located in multinational law firms. Of course it is not unusual for practitioners to move into academia, either 3-5 years after entering practice or after retirement.
We also see institutional lag in supporting institutions such as law libraries. Conventional law libraries are notoriously static places and so acquisition decisions made decades ago often continue to govern long after the significance of a particular field or geographical area has waned. This may be a good thing – libraries in this sense are a tangible institutional memory of the passions and fashions of scholarship and teaching. So we see in the US relatively well-developed collections on Chinese and Japanese law and relatively scattered and incomplete collections on other Asian jurisdictions.
Canada and Australia, by contrast, are trade-dependent economies and so were far more institutionally flexible in their coverage of Asian law during the 1990s. Law graduates (now lawyers) reaped the benefits of that flexibility and this accounts for the geographic range in courses and scholarship in Asian law emerging from those countries now.
Characterizing Asian legal systems
One of the debates in Asian law is whether it makes sense to try to identify core commonalities among ‘Asian’ legal systems, however you compose that list. In an early article, Antons argued for some core organizing concepts of Asian law and Taylor (1996a) rebutted this with the claim that the search for something called ‘Asian law’ risks essentializing systems that are socially, economically, politically and geographically very different. Jayasuriya (1999) agreed, but suggested that comparison must still be possible, and that Taylor ‘risk(s) throwing out the comparative baby with the orientalist bathwater’ (1999:2).
Jayasuriya’s important contribution to the field was an early essay collection I which he pursues the ideas of whether the linking features of many Asian legal systems are in fact a common set of shared normative understandings of the purpose and function of state power and governance … and a form of managed and negotiated capitalism (that goes under the generic label of the developmental state) of the Japanese variety that has influenced the political economies of East Asia (1999:2). He explores these issues thematically in Law, Capitalism and Power in Asia (1999), rather than through country studies.
Jayasuriya argues, in essence, that a strong, centralized state is typical of many Asian legal systems and that democratic political pluralism is neither the norm nor a necessary prerequisite for a functioning legal system. Further, he argues that ‘rule of law’ rhetoric is particularly useful for autocratic ruling cliques in Asia because it can be appropriated to maintain social stability and bolster their own political power while at least procedurally creating the impression of fair and functioning political and legal system. Singapore, of course, is the paradigm example of Jayasuriya’s theory, where procedural exactitude and the deployment of law for technocratic purposes, for example, go hand in hand with tight constraints on freedom of expression. China, Malaysia, Indonesia particularly before the fall of Suharto, Hong Kong, Taiwan, Singapore and until very recently South Korea can all fit within this theoretical framework to some degree. Whether countries such as Japan and India fit the model is much more debatable.
The important role of a strong, centralized state in Asia resonates to some degree with the deference accorded to the state in western European countries such as France and Germany and in contemporary Russia. Pluralist democracies where law and regulation emanate to some degree from individual or from voluntary associations are the exception, not the norm. We can explore this further in discussion of the contrast between ideas of ‘rule of law’ and the Rechtstaat.
Closely related to Jayasuriya’s organizing ideas are the recent works by Peerenboom (2003) which asks whether there is an Asian concept of ‘rule of law’ and Antons (2003), which explores the influence of developmental states such as Singapore and Japan on other Asian legal systems.
As Antons (2003) admits in his preface, however, time does not stand still. One problem for this kind of theorization is that the ‘developmental states’ of Singapore and Japan are, respectively, economically stagnating and undergoing intense and dramatic legal and regulatory change, precisely because the developmental state seems to have outlived its utility.
We also see the reconfiguration of maps of ‘Asia’ for research and policy purposes in the wake of the collapse of the Soviet Union, the 1997 Asian Financial Crisis, the 9/11 terrorist attacks on the United States and the wars and subsequent attempts at reconstruction in Afghanistan and Iraq.
Whether we are looking at post-1997 South Korea, a stalled economy and regulatory reform in Japan or attempts at propping up or building states such as Uzbekistan or Afghanistan, it seems that ‘transition’ has new salience as an organizing concept. The ‘transition’ discourse emanates from donor agencies and international financial institutions directly engaged in mandating legal and institutional reform across the region, and brings with it the agendas and methods of those institutions, in particular a heavy reliance on new institutional economics and legal positivism. Viewed through the prism of ‘transition’, an Armenia, Iraq, Afghanistan or the Central Asian republics seem far-removed from North East or South East Asia, but even further removed from Western Europe.
The really significant shift that I discern in Asian law is its intersection, and perhaps future confluence, with the legal and institutional reform discourse. Within law schools we still think of the latter as ‘law and development’ or ‘the new law and development’, but both of these labels have been rejected by international financial institutions in favor of the ‘legal and institutional reform’ label.
A key challenge for Asian law scholars now is how to engage with the latest wave of law and development (or ‘legal and institutional reform’) thinking on ‘rule of law’, ‘governance’ and ‘transition’. The law reform projects in Asia championed by international financial institutions, donors or national governments are interesting not so much for the revealed disconnect between ‘universal norms and local cultures’ (Rosett et al, 2003), but because of the way in which law is identified and harnessed as a technocratic tool of economic change (e.g. Jayasuriya, 1999). Much of this work and policy advice is being formulated outside universities, prompting competition among professionals for the capture of ‘applied Asian law’ in reform settings.
A further, not unrelated, theme now evident in newly published work and projects in development is the increased importance of understanding Islamic law and Islamic institutions. This work also underscores the realities of legal pluralism in many Asian states and provides an interesting counterbalance to the legal and institutional reform work described above.
In the first wave of law reform in transition economies, multilateral and bilateral donors presented Russia and former Soviet satellites with legal technical assistance as a tool for effecting economic (and political) transformation. Russia became the ‘hard case’: it received substantial amounts of formal law reform, but ‘liberalisation, stabilisation and privatisation’ did not directly translate into a strong legal system and enhanced business trust. An alternative explanation is that law became compelling for economists at precisely the time that the initial round of economic prescriptions for Russia failed. As Russian institutions were failing, the 1997 financial crisis in Asia then opened up questions about the role of law and legal institutions in countries that had gone from ‘being a miracle to needing one’ (Garnaut, 1998).
The Asian legal ‘transition’ story is complex (Pistor and Wellons, 1999), although it resonates in part with the Central and Eastern European experiences. One of the similarities has been that, after the 1997 financial crisis in Asia, law and the functioning of legal instituions has assumed a much more prominent role in domestic policy and in agendas of international financial instituions and bilateral donors. The paradigm examples is Indonesia, where loan conditionality in Indonesia made the IMF the author of wide-ranging, short-term legal reforms. The Asian financial crises and Japan’s continued recession since 1987 forced the formerly ‘development states’ of Japan (Drysdale and Amyx, 2003) and South Korea to adopt major economic and legal reforms, while at the same time Japan increased its aid commitment to provide legal technical assistance within Asia. Indonesia and Thailand instituted commercial law reforms in response to either loan conditionality or to demands by multilateral regulators. Malaysia and Singapore survived the financial crisis but in both cases the ‘rule of law’ is proving to be a fragile institutional arrangement (Jayasuriya, 1999; Peerenboom, forthcoming 2003). China remained sui generis, as the paradigm example of the success of evolutionary-intuitionalist economics, but its entry into the WTO became the catalyst for widespread law reform and escalated technical legal assistance. Similarly, Vietnam’s bilateral trade agreement with the US and the prospect of WTO are drivers in the realignment of that legal system, while the foreign aid-financed re-building of the Mongolian legal system offers the prospect of a Western-influenced buffer between China and Russia. Following the terrorist attacks on the United States in 2001, we now see a further wave of legal technical assistance and military aid channelled toward states such as Afghanistan, Pakistan, Indonesia and those in Central Asia that have become strategically important.
Both in the transition economies of Eastern Europe and Asia, these ‘waves’ of externally funded law reform have been stongly influednce by ‘new institutional economics’ as the dominant theoretical framework (North, 1990). The construction of ‘law’ and ‘legal institutions’ in these projects is both formal and instrumentalist. Because the financial and human resource ‘inputs’ are both large and quantifiable, and because the enterprise is underpinned by the assumption (and an implicit promise to recipients and donors) that law will improve economic conditions in transition economies, there is a strong impulse to quantify the outcomes – to demonstrate and measure ‘law reform’ and its effects.
 (1) Use of professional judges and lawyer rather than lay judges and self-representation; (2) need for written rather then oral arguments (3) necessity of legal justification of various actions by either disputants or judges (4) regulation of evidence (5) nature of superior review of first-instance judgment (6) presence of statutory interventions during dispute resolution (e.g. service of process by a judicial officer) (7) number of independent procedural actions required by law.
 Some other determinants of judicial efficiency are also considered, namely (1) aspect of defendant protection in different countries (2) incentives for attorneys (3) mandatory time limit on judges and litigants (4) indexation of debt contracts (5) ‘loser pays’ rules and (6) availability of alternative administrative procedures to solve the dispute. However the authors do not find any systematic evidence that these factors matter. Moreover they do not wipe out the influence of the …index on judicial efficiency’ (2001:8)