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.
SELECT BIBLIOGRAPHY
Asian Law
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Judicial Efficiency: the Lex Mundi Project’ (unpublished revised draft October,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
“In 1900, more than half the world’s people lived under colonial rule and
no country gave all its citizens the right to vote. Today three-quarters
of the world lives under democratic regimes” (Financial
Times, Dec 2002, citing UN Human Development Report 2000, World Bank,
World Development Indicators)
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.
Private law
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.
Functionalism
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 |
Common Law (England,
later the US) |
Civil Law (French
or German influenced) |
Socialist law (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 |
Legislative form |
Statutes made by Parliament
and regulation-making power delegated to bureaucracy. Statues
tend to be drafted in detail |
Codified law; drafting is brief and generally not
as prescriptive as common law statute drafting. Leaves plenty of room
for interpretation. With the effect that case law increases in importance
over time. Paradoxically texts become quasi-sacred – so difficulty
in revising a Code. Often what is not permitted is prohibited. Codes
supplemented with special statutes as necessary. |
Codified
law, with changes as necessary that may or may not be announced. Instrumentalist view of modern law leads to much redrafting
and reissuing to meet political needs. 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 |
|
Judicial institution |
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 |
|
Legal Profession |
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[1]
the authors then construct an index of regulation of dispute resolution.[2]
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.
Sociological perspectives
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.
Political perspectives
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:
·
Global
·
International
·
Regional
·
Transnational
·
Inter-communal
·
Territorial
state
·
Sub-state
·
Non-state
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.
Asian 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.
Le divorce from Comparative
Law
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’?
Defining Asia
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?
Asian Law
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’:
The content of ‘the kind of thing we do here’ is differential;
it comes into view against a background of the practices it is not; and it
must ‘show’ in that way -- as something we, not others, do – because if it
did not it could not sustain a challenge to its usefulness (Fish, 1995:16)
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.
Asian Legal
Systems v ‘Asian Law’
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).
Political characterizations
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.
Geography and
Transition
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 Legal and Institutional Reform Nexus
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.