Legal systems based on Western models arrived in Asia during the eighteenth and nineteenth centuries through many pathways.
Usually, they were imposed by the imperial powers as part of their colonial political apparatus, but in some Asian countries, most notably Japan and Thailand, they were imported by local elites in consultation with European and American legal experts.
These legal systems represented a radical discontinuity with traditional regimes and introduced new models of centralized, “rationalized,” and bureaucratized legal orders. A common feature of so-called “modern” legality is the concept of secularism, which in theory split off the legal from the sacred and made it the business of law to set the terms for a separation that was unthinkable under the classical conceptions of law and religion.A great deal of law and society scholarship has probed and questioned the concepts of modernity and secularism. It would be a mistake to accept what Peter Fitzpatrick (1992) has called “the mythology of modern law” as a literal history or sociology rather than a type of situated discourse that merits careful sociolegal analysis. In this section, therefore, we should ask first what the “project of modernity” (Asad 2003) entailed in different Asian societies and who promoted it. We should then ask what role the sacred played in the imaginings of those who pursued modernity - and what role it played in the actual behavior of rulers and subjects. Finally, we might ask how the concept of secularism, rooted as it was in a specific European cultural history, was interpreted and deployed in Asia. Like modernity, secularism was a “project” that carried different meanings and served different purposes in different social contexts. As Sullivan et al. (2011:1-2) have observed, scholars have come to view secularism and secularization as “highly unstable terms in academic discourse,” and recent scholarship has demonstrated the many diverse ways in which religion has remained relevant to law and legal institutions within purportedly secular regimes:
It is now better understood that religion, like secularism, takes plural forms, some of which fit uncomfortably with the liberal modes of thought dominant in Euro-American societies. Some of these deviations from the paradigm of liberal secularism extend the promise of multiculturalism, but some also appear to challenge key assumptions of traditional theoretical models justifying public order and to expose vulnerabilities in the sovereignty of the secular state.
In the readings that follow, therefore, we will not observe the triumph of secularism over an older form of law that had been embedded in religious ideology. Rather, we will see different Asian societies responding in different ways to European concepts of legal modernity while continuing to reflect the profound influence of longstanding sacred practices and beliefs.
ι.6