Global Doctrine and Local Knowledge: Law in South East Asia, Andrew Harding
In this article, Andrew Harding describes how Southeast Asian states have for many years dealt with the issue of legal pluralism. Although he focuses primarily on contemporary recognition of Islamic personal law within otherwise secular legal systems, he also emphasizes the multilayered character of Southeast Asian law.
Like the great temples of Southeast Asia, he notes, Southeast Asian polities integrate local traditions and legal precepts drawn from Hinduism, Buddhism, and Islam as well as from contemporary global legal regimes. In Harding's words, “The history of law in the region, as well as the history of everything else, is distinguished by the ability of South East Asia to embrace the best of that which is foreign without destroying that which is authentically local.” That being the case, however, each state is faced with the difficult challenge of ascertaining local traditions - in this article, traditions associated with Islam - and administering them within the framework of secular law. And, at the same time, each state must continue to absorb influences from beyond its borders. Where does “local knowledge” come from, and to what extent does the state distort or even destroy the very traditions it purports to preserve? In this characterization, legal pluralism constantly evolves, presenting each Southeast Asian polity with a continual challenge to recognize and integrate disparate legal concepts, norms, and procedures.Let us now try to paint a more general picture of the region's legal pluralism, and how it has dealt with the problems of global doctrine and local knowledge which have so exercised the English judiciary, the Dutch scholars, and the Muslim jurists. Legal pluralism may be represented by several geological strata, which still remain visible to us due to tectonic movements. This matter is deeply related to the culture of the region, whose principal characteristic has been to absorb foreign influences in such a way as to develop rather than obliterate its own genius.
The great temples of Borobudur and Ankor Wat stand as wondrous testaments of this fact. The history of law in the region, as well as the history of everything else, is distinguished by the ability of South East Asia to embrace the best of that which is foreign without destroying that which is authentically local. As in food, architecture and religion, so in law. It is therefore as difficult to describe the essential character of South-East Asia's law as it is to describe the essential character of its food; but perhaps the effort may nonetheless be instructive.First there was the custom or ?native' law of the aboriginal inhabitants, which is still recognised by the courts as positive law in several parts of the region. Then came several strata of transplanted law: adat (Malay custom), which was based on the rumah gadang (long house); in adat perpatih, the customary law of the Minangkabau matrilineal society, property passed along the female line; Hindu and Buddhist law from South Asia, uniquely amalgamated, and operating at the rarified level of the kraton (court); Islamic law from the Middle East, which mingled with adat and formed the basis of personal law in maritime South East Asia; and Chinese law via immigration and imitation. All these not only had great influence but influenced each other in interesting ways. Beginning as long ago as the eleventh century CE custom began to be written down in codes such as those of Java, the Undang- Undang Melaka (civil and constitutional law), and the Undang-Undang Laut (maritime law) of Malacca in the fifteenth century, and the Thai Law of the Three Seals in 1805. It was also described by scholars, such as the industrious Dutch who institutionalised adat into nineteen adat-areas; this crystallisation resulted eventually in its decline as a form of living law, and at independence the Dutch civil law was preferred by the Indonesian state in the interests of modernisation. Adat is still however enforced in the courts of Malaysia and Indonesia along with Islamic law in certain respects.
The reception of Islamic law in South East Asia represents the geographical zenith of the most significant and thorough transplant of global doctrine in legal history, surpassing even that of Roman law in Europe. It spread throughout Malaya, Indonesia, and parts of Thailand and Philippines. In all these countries Islamic law represents a separate sub-system of personal law, enforced by separate courts, as well as affecting, in some cases, aspects of general criminal, commercial, and constitutional law. The Islamic legal tradition is still developing through its interaction with local knowledge as well as with technology and the advance of global commerce and culture, and the need in practice to accommodate other legal traditions.
From about r500 colonialism formed another stratum. The Portuguese and Spanish civilian traditions were brought to what became the Catholic parts of the Malay archipelago, such as East Timor and Philippines. The English common-law tradition, with a heavy dose of the great Anglo-Indian codes, was imposed in Burma and the Straits Settlements and later in Malaya, Brunei, Sabah, and Sarawak, while its American cousin became a permanent legal influence throughout the twentieth century in the Philippines. The French civilian tradition was imposed in Indo-China and also, along with German, Swiss, and Japanese models, influenced Thailand; and Dutch law was imposed in Indonesia. As a result all the legal systems of South East Asia, even that of Thailand, which was not colonised, have a clearly European-style framework, and all modernised their legal systems and their criminal, civil, and commercial laws with European-style codes just before or just after the turn of the twentieth century, or a little later. The distinction between the civilian and common law systems remains valid and important even today, although its importance is declining even as it declines in Europe. Indonesia's Company Law of 1996, for example, smoothly integrates both Dutch and common-law ideas in pursuit of the modern requirements of corporate governance.
The period since 1945 has seen two further phases. The first was the period of decolonisation and independence, in which it was assumed that the logic of ?law-and-development' would result in the convergence of all Asian legal systems along Western lines, a view which sat easily with a juristic orthodoxy which saw all legal systems as path-dependent.
This was the period in which ?new states' were to prevail over ?old societies', led by economic-development law and democratic constitutions: Malaysia and Singapore are the prime examples of the success of this approach. The socialist states of Indo-China provide a comparable model, albeit with different socio-economic objectives, importing Soviet and Chinese ?socialist' law. In South East Asia, the notion of the ?Asian developmental state', characterized by social stability, authoritarian governmental structures, and long-term economic planning, has been seen as continually relevant to the understanding of post-colonial law in the region. Thus the centrality of law to development has been remarked upon but hardly ever actually studied.
A new phase since about 1990 embraces globalisation-law, which has been driving much of legal development and transplantation in South East Asia in the field of international business and commercial law, for example relating to foreign investment and intellectual property. These developments have had a knock-on effect on organic laws, even public and constitutional law. The interesting outcome of this phase as regards legal studies is a renewed emphasis on culture and society as guides to the analysis and understanding of law. The recent economic crisis in South East Asia has also renewed emphasis on the rule-of-law, civil society and the empowerment of legal institutions as the way forward. Thus ?new state: old society' has given way to ?old state: new society';[62] in this phase it is expected by many that Asian legal systems, propelled by people-power and international commerce, will finally reach a kind of legal Fukuyama-land, in which local knowledge will finally be counted out.
[...] Huge question-marks over these developments hang suggestively in the region's development-polluted skies. The influence of legal transplants continues, but is becoming more varied: when Malaysia enacted its cyberlaws in 1997-8, it used models from the United States, England and Singapore. The new Thai Constitution displays many disparate influences (France, Germany, and England, for example) as well as some purely home grown elements. Legal influence is moving in many directions. Comparative law has become an industry. Global doctrine and local knowledge are fusing in such a way that it becomes hard to see where one starts and the other ends.What this brief summary reveals, if it is correct, is that, inside the concept of law in South EastAsia lies, as a result of historical experience, an accretion of layers of law and legal culture, as distinct from a monolithic ?progression' from one conception of law to another, as some would have it. The achievement of law in South EastAsia has been to construct out of these disparate elements of legal systems which, while pluralistic in their origins, have, to a greater or lesser extent, become syncretic or unified, and which represent a tradition of accommodation of differing or even conflicting conceptions of law. This is something from which non-South EastAsians can certainly learn. They are, it is true, institutionally imperfect systems, in which the rule of law itself is a competing value-system rather than a basic condition; but they have replaced pluralistic abandon with what the anthropologist Clifford Geertz's phrase usefully calls a ?working misunderstanding'.
2.3