Introduction

Is there any society in the world where the written laws accurately describe what people and institutions actually do, where people manage their affairs and resolve their conflicts precisely as the law codes prescribe, and where constitutional principles and regulatory requirements are scrupulously observed? The answer is certainly no.

In Asian countries, the difference between law on the books and law in everyday life presents itself with exceptional clarity. This is not surprising, since Asian legal systems are, for the most part, transplants from Europe or America, modified, to be sure, in their new surroundings, yet retaining key features that originated in distant and extremely dissimilar cultures. Colonial rulers or political elites imposed most Asian legal systems on populations who had little voice in their form or content. There was no assurance that laws and legal institutions established in this way would reflect the beliefs and behavior of ordinary people. Although most contemporary Asian legal systems have undergone considerable revision since they were first set up, observers have repeatedly noted the sharp contrast between the official laws of Asian states and the unofficial norms and practices familiar to most of the population.

Law and society researchers working in Asian settings have offered answers to these questions and others like them. It is not surprising that the field of Asian law and society has flourished in recent years and has attracted growing numbers of scholars, students, and policymakers who share a frustration with narrowly focused studies of legal rules or doctrinal exegeses. Although legal theory and the analysis of black letter law still predominate in many law schools, Asia has become a focal point for some of the most significant law and society research in recent years, and professional associations and centers for research and teaching in Asia have achieved greater prominence now than ever before. It is time, we believe, for a Reader that features the literature, theories, and methods of law and society research conducted in Asian settings.

This book presents studies that took place across the entire Asian region, from China, Japan, and Korea to Singapore and Indonesia, from Vietnam, Myanmar, and Thailand to Nepal, India, Sri Lanka, Pakistan, and elsewhere. It highlights the topics that have most interested law and society scholars who study Asia - we shall refer to them collectively as “Asian law and society scholars,” though not all are themselves Asian by nationality or ethnicity - and it offers insights into the various ways in which the scholars conduct their research.

1.1 What Is Law and Society?

For readers unfamiliar with the field of law and society scholarship, it may be useful to begin with an explanation of the term. We proceed with caution, well aware that any definition will invite controversy. As law and society research has flourished in Asia and throughout the world, it has become vibrant, multicentered, creative, rapidly evolving, and highly diverse. As a result, law and society scholars nowadays tend to offer differing characteriza­tions of their common field. Even the three editors of this Reader, who share longstanding involvements in the law and society field and are otherwise close colleagues and good friends, tend to define it in somewhat different terms.

This much we could probably agree on: In law and society scholarship, law and legal institutions are studied as social phenomena. Law is not presented as an autonomous system operating independent of its environment. As Lynn Mather (2008) puts it, “Law is in society, and most now agree with the argument Laura Nader made initially that the field should have been named �Law in Society' rather than law and society.” Because law is “embedded” in society, it cannot be studied exclusively on its own terms. The legal system's view of social phenomena, an internalized view that is necessarily constrained by law's own formal rules of relevance and textual interpretation, is like the shadowy vision of reality projected against the walls of the cave in Plato's famous allegory.

The tool kit of law and society scholars is ampler than that of traditional legal scholars and includes a number of quite different methodologies: histor­ical or archival research, participant observation, qualitative interviews, broad­based surveys, other forms of quantitative data analysis, laboratory studies, and natural experiments, among others. Most law and society scholars use or at least draw upon empirical research, which Shari Diamond (2019) has defined as the “systematic organization of a series of observations with the method of data collection and analysis made available to the audience.” Yet not all law and society scholarship fits within this definition of empirical research. What law and society researchers generally do not do is analyze law texts - judicial opinions, statutes, regulations, contracts, and the like - on their own terms rather than situating them in particular social and cultural contexts that must be brought into the discussion in one way or another.

It is almost easier to say what law and society is not than to say what it is. Law and society, as we have already observed, is not conventional legal scholarship of the kind familiar to law professors around the world. It is not merely the analysis of so-called black letter law, of legal doctrine, or of legal theory - though it sometimes takes black letter law as a starting point. Some law and society scholars may begin with a statute or a judicial opinion, but they rely on fieldwork to trace its impact, workings, or origins in society. Thus, law and society research can provide a useful real-world assessment of legal doctrine and can point to better rules and procedures and better legal institutions.

Nor is law and society quite the same thing as law and development, though these two fields also share common roots and interrelate in many ways. Law and society scholars tend to be more skeptical about the capacity of law to achieve development goals and more critical of the unintended consequences that may accompany the instrumental use of liberal legalism to realize social change. At the same time, however, many law and development scholars view law and society research as an essential tool for their work, one that can help them achieve a better understanding of approaches that have worked or failed in the past and are likely to succeed or fail in the future. Moreover, despite law and society researchers' skepticism about law's actual effects, most of them - like their colleagues in the law and development field - aspire to promote progressive social change. Perhaps that is one of the reasons why membership in the two fields tends to overlap.

Lastly, law and society is not the same thing as critical legal studies, even though the two fields intersect in their distrust of liberal legalism's optimistic claims. Law and society researchers typically rely much more heavily on data and on empirical research methods, which critical legal scholars sometimes view as overly positivistic, a misleading characterization that is resisted by the many law and society scholars whose work is qualitative and/or interpretive. Put another way, law and society researchers are more inclined to take the assertions of critical legal scholars as research questions worthy of investigation rather than as self-verifying pronouncements. Indeed, despite the common influence of postmodern theory on both groups of scholars - the work of Foucault, de Certeau, Bourdieu, and others - law and society scholars are more inclined than “Crits” to assume that there is some version of truth (or “social facts,” to use Durkheim's term) out there waiting to be discovered by thoughtful engagement with people or social institutions rather than viewing truth claims as hopelessly subjective and relativistic.

Even this short list of distinctions should suggest some of the rewards of doing law and society research. Law and society research reveals how law actually works - and how it fails. It listens closely and with some humility to the unheard voices of ordinary people, who are most significantly affected by laws and legal institutions - not just the words of elite actors. It persistently uncovers the gap between law's aims and its actual impact. It examines law's intended and unintended consequences, and it highlights the ways in which law may actually exacerbate problems of inequality in wealth and power. Law and society researchers do not merely theorize about inequality or oppression; they document them in the words and life experiences of real people in specific circumstances.

In selecting the readings for this book, we have attempted to illustrate the unique insights that can be gained from excellent law and society research conducted in Asian settings. Each selection is meant to exemplify law and society research designs and research methods at work. The readings are varied in their approach and in their subject matter; we do not insist on a single orthodoxy. But all the excerpts have one thing in common. They all display the rewards of open-minded, inquisitive, fieldwork-based, creatively designed research with the capacity to surprise the researcher as well as the reader about the role of law in the lives of Asian people. For us as editors of this book, shining a bright spotlight on Asian law and society as a way of thinking about and conducting one's research is even more important than the facts or findings reported in each excerpt. We hope that readers will share our appreciation for the distinctive and, indeed, indispensable contribution that law and society scholarship can make and the perspective it can bring to the study of Asian societies and their legal systems.

But readers may still be confused about the definition of law and society and the terminology used by different people to discuss this field of research. Is “law and society” the same as “law and social science”? Is something different meant by “sociolegal studies”? And how about the “sociology of law”? “Law and social science,” it has been argued, is a narrower term than law and society, since it seems to exclude research that draws on disciplines outside the social sciences, such as literary theory, cultural studies, philosophy, the fine arts, and, some would say, history. If that is the case, then defining our field more broadly as “law and society” seems preferable to “law and social science.” “Sociolegal studies,” on the other hand, with or without a hyphen, is a reasonably inclusive term, and in this Reader we use it interchangeably with “law and society.” The term “sociolegal” appears in the name of an important UK-based scholarly organization (the Socio-Legal Studies Association), but it is also employed adjectively by many law and society scholars worldwide.

Finally, there is the term “sociology of law,” which may at first glance appear narrower than it actually is. Scholars who use this term, including members of the Japanese Association of Sociology of Law, the European-based Research Committee on Sociology of Law of the International Sociological Association, and the Sociology of Law section of the American Sociological Association, do not restrict their research to the theories and methods of the discipline of sociology - as opposed to political science, anthropology, psychology, history, geography, or the humanities. Rather, those who identify as sociology of law scholars are typically part of the mainstream of what is generally considered the law and society field, regardless of their disciplinary background.

1.2