The Plan of This Book: Chapters and Crosscutting Themes
The literature on Asian law and society features a number of frequently recurring topics. To some extent, these topics are familiar to researchers in non-Asian settings as well, but those who study Asian societies tend to bring somewhat different emphases and perspectives.
Moreover, because the setÂtings in which they conduct research differ radically from those in which their colleagues labor elsewhere in the world, scholars of Asia have consistently contributed distinctive findings and theoretical conclusions. To provide an overview of the literature of Asian law and society, we have selected nine subject areas for inclusion in this Reader. They constitute the nine numbered chapters of our book:ι. Religion
2. Legal Pluralism
3. Disputing
4. Legal Consciousness
5. Legal Mobilization
6. Legal Professions
7. Courts
8. Crime and Justice
9. Practicing Law and Society Research in Asia
Before describing the content of these nine chapters, however, it is essential to highlight five meta-themes that crosscut all the chapters and all the readings. These crosscutting themes can be thought of as the columns in a table in which the chapters are the rows.
The first crosscutting theme is colonialism. Though not a chapter of its own, colonialism is a conspicuous presence in virtually all the chapters of this book. The takeover of Asian societies by the imperial powers of England, France, the Netherlands, Portugal, Spain, Japan, Russia, Germany, and the United States profoundly disrupted the classical legal systems of Asia, established new and unfamiliar institutional arrangements, reshaped social hierarchies, and redefined the geopolitical spaces and boundaries of Asian states. Closely connected to the theme of colonialism is the concept of modernization. Beliefs about “modernity” and the elements contained in or implied by that term were typically imported by colonial governments and reinforced by the elite Asian actors they empowered.
This led to an often-anomalous situation. In Europe, the idea of modernity was the product of protracted historical developments from the time of the Enlightenment to the twentieth century, but in Asia it was superimposed (or “transplanted”) almost instantaneously on societies with quite different histories and cultures. As a result, phenomena that were thought to represent “modernity” - including the concept of modern law - were deployed by Asian actors in distinctive and often counterÂintuitive ways. The ideas and institutions of modernity could be experienced by Asian people both as culturally alien and - at the same time - as essential to achieving justice and protecting rights. As we shall see, these same ambiguities and paradoxes surrounding the concept of modernity can be found even in a country such as Thailand, which never experienced colonization by a European power.As an extension of colonialism and modernity, a second theme runs through virtually every chapter of this Reader: legal and political transformations. Before the colonial era, and certainly after it came to an end, Asian states experienced tumultuous changes that had a profound importance for law. Whether triggered by war, by revolution, by economic change, or by globalÂization, these transformations altered the political and economic systems of Asian countries and the behavior and beliefs of their citizenry. Change is, of course, a constant in all human existence, but the transformations that have occurred in many Asian countries are radical, far-reaching, and frequent, and their relationship to law has been complex. For example, some Asian governÂments, both national and local, use law as an instrument to promote ecoÂnomic growth; and, in turn, economic booms and busts influence the progress and results of legal developments. Moreover, legal changes often have symbiÂotic yet conflictual relationships with changes in civil society. Social reforms and advances may, for example, trigger the rise of legal activity in the form of public interest law, legal aid, and legal mobilization for social causes such as gender and marriage equality.
Yet, even as social transformations foster the growth of progressive legal activism, Asian legal systems may also impose conservative structural and discursive constraints on social change, including limitations on civil society's ability to fight for social justice and political freedoms.A third theme running through all the chapters of this Reader involves the twin concepts of hierarchy and power. Inequality is, of course, a mainstay of law and society research elsewhere in the world, but in Asia it takes on a distinctive and extremely important role. Most obvious, perhaps, is scholarship about the caste system in India, in which inequality was institutionalized as a central element in all legal arrangements (Dumont 1980; Derrett 1999) and was subsequently redressed by law (Galanter 1984). Even in Asian countries where the caste system did not exist, however, law became intertwined with officially recognized social hierarchies (e.g., Rabibhadana 1969) and with rigid distinctions in social class. Subsequently, when laws were enacted to oppose rather than to support inequality, the covert role of social hierarchy in the “living law” remained strong enough to attract the attention of law and society scholars in most Asian societies. The asymmetrical distributions of status imply as well an extreme inequality in power. Law and society scholars who study Asian countries almost invariably focus on inequities in status and wealth that work to the advantage of some social actors and the distinct disadvantage of others. We should add that status hierarchies in contemporary Asia can take many forms, even in societies that are self-identified as “demoÂcratic” or “socialist,” where party affiliation or other social advantages can confer enormous power.
A fourth theme is that of rights. As a tool to resist injustice, to equalize power imbalances, and to assert individual autonomy, modern law - at least in theory - offers all citizens recourse to rights. Some of the most striking instances of legal mobilization in contemporary Asia involve individuals and groups invoking their rights to free themselves from oppressive circumstances and to transform society.
Yet rights remain a controversial subject in Asian contexts. Some have claimed that the very idea of rights is alien to Asian cultures, where relationships and harmony are prized above individual selfÂrealization. They find no analogues for the concept of rights in traditional Asian laws and cultures. In response, rights advocates have noted that antiÂrights claims in Asia are typically voiced by entrenched elites or opponents of democracy, whose privileged positions are threatened by internationally sancÂtioned rights regimes. Others argue that local discourses share ideals and values similar to expressions of rights found in modern constitutional law or international human rights. Law and society scholars have explored rights, not necessarily by starting from a particular position in this normative debate, but by posing empirical questions about how people in Asian societies think about the individual, the family, the social group, and the state, and how they choose to use or avoid the law when confronted with situations they consider unjust. What does the concept of rights mean to ordinary people, and what variations or equivalent ideas do they express? How are their rights seen to be violated, in some instances, and vindicated in others? Some of the researchers' most striking findings reveal novel and creative strategies that transcend the simplisÂtic rights/anti-rights binary.A fifth set of crosscutting themes can be designated collectively as identities. Most law and society research assumes that the ways in which personhood is constructed - both in law and in culture - shape the conduct of legal actors in every possible situation. Law and society researchers have, for example, closely examined the construction of gender identities in Asia. Traditionally, the rights and interests of men have been favored within the official legal systems of Asia, but patriarchal views have not necessarily dominated in all contexts. Unofficial customary legal arrangements, for example, especially those involvÂing animist belief systems, sometimes confer special powers on women, although the reverse is also very often the case.
Recently, scholars have studied the legal experiences and consciousness of transgender persons, not only in the context of current policy debates but also in centuries-old customary practices. Identities based on sexuality have also received a great deal of attention from Asian law and society researchers. The influence of European colonial law appears to have brought greater intolerance of sameÂsex relationships, and scholars have studied growing resistance to this type of intolerance even as they attempt to reconstruct precolonial belief systems about human sexuality. Other forms of identity construction have also attracted the attention of law and society scholars. Researchers have, for example, explored ethnicity and race as factors that shape official and unoffiÂcial legal behavior and conflict. Urban versus rural identities have also proved extremely important in law and society scholarship on Asia. As we have seen, some of the pioneering Asian law and society studies took place in rural settings, based perhaps on the questionable assumption that there the researchers would find stronger evidence of tradition and cultural “authentiÂcity.” Whether true or not, this assumption is implicit in many of the readings this book presents.Having described five sets of crosscutting themes that run through the entire book, we turn now to the nine substantive chapters that follow this introducÂtion. They represent what we consider the predominant interests of law and society scholars working in Asia. In each chapter, we provide a representative selection of readings that clarify the nature and origins of the topic and the different approaches scholars have taken as they explore it. Our aim is not only to familiarize the reader with these different areas of research but also to highlight some of the best and most interesting work being done in the field - and to inspire additional research that might build on what has been accomplished thus far. Because our readers will probably have particular interests in certain countries or regions of Asia, we have made every attempt to offer selections addressing a number of different Asian countries in each chapter.
Chapter ι: Religion. This chapter contains readings on Hinduism, Buddhism, Islam, Confucianism, Taoism, and localized so-called “animist” religions based on spirits and nature. Although in premodern legal systems, law and religion were virtually indistinguishable, “modernity” required a separation of the two concepts. The readings address the arrival of European-style legal systems, often (but not always) imposed by colonial authorities, which carried with them some version of the principle of “secuÂlarism.” In fact, secularism took on many different forms in Asian societies, each marking out a distinctive role for law, in some instances to police the separation of law and religion and, in other instances, to ensure that a particular religion retained a preferred place in society. The chapter conÂcludes with readings about modern interactions between law and religion in three very different societies - Singapore, Sri Lanka, and Japan.
Chapter 2: Legal Pluralism. Although legal pluralism can be found in every society, it has been studied with particular intensity in Asia. Legal pluralism studies of Asian law and society are of three types. Some law and society scholars rely on the concept of legal pluralism to theorize official law in relation to various other legal orders operating in the same space. Legal pluralism provides them with a means to describe each of the multiple systems of law and to consider the ways in which they interact with one another. Other law and society scholars, adopting a more state-centric perspective, have studied how different Asian governments address the plurality of legal orders familiar to different population groups or different sectors of social life - such as the family, land and property, labor and employment, or religious affairs. They show how Asian states - colonial and postcolonial - use legal pluralism to legitimate and extend their power over Asia's diverse peoples. For a third group of law and society scholars, legal pluralism provides a framework for their “bottom up” research on law in everyday life. They show how individuals pick and choose among various legal orders as they deal with disputes, family matters, economic and social exchanges, claims to land and water, and other matters. The readings in this chapter illustrate all three of these approaches to the topic of legal pluralism in Asia.
Chapter 3: Disputing. The study of disputing and dispute resolution has been one of the central concerns of law and society scholars for the past fifty years. Rather than focusing narrowly on cases that have been litigated in state courts, law and society scholars broadened their perspective beyond state-sanctioned dispute resolution to include the handling of conflict in countless fora throughout society, ranging from neighborhood councils to consumer complaint boards to the interventions of shamans and village leaders. Law and society researchers working in Asian settings have been no exception. Some of the earlier studies were village-based, highlighting the largely conciliatory practices of dispute mediators who sought to mainÂtain harmony within their community by promoting apology, restitution, and spiritual well-being. Recent studies in Asian societies examine the relationship between litigation and nonjudicial dispute resolution, highÂlighting the ways in which courts and judges are influenced by the handling of conflict outside the ambit of state law. A third type of law and society research illustrated by this chapter involves ADR - the attempt by the state to divert litigated cases to “alternative dispute resolution” procedures estabÂlished as adjuncts to the formal system itself. Although ADR is sometimes touted as a restoration of traditional community mediation, law and society researchers have generally demonstrated that its close connection to the official legal system raises complex issues of justice and the protection of rights by persons who lack sufficient wealth or power to succeed within the formal judicial arenas.
Chapter 4: Legal Consciousness. Legal consciousness refers to the ways in which people think and act in relation to law, including situations in which they view law as relevant and useful and those in which they reject law or never consider it at all. Some of the earliest law and society research in Asia - in Japan, Korea, and Indonesia, for example - attempted to explore the phenomenon of legal consciousness at the national level. Typically, such research depicted Asians as law-averse and non-litigious, but subsequently those characterizations were challenged and revised by scholars who proposed more complex explanations for the infrequency of litigation in some Asian societies. The readings in this chapter follow the evolution in legal consciousÂness research, from efforts to identify national traits to studies that examine the interaction of globalization and customary practices to produce unique forms of consciousness within different social groupings. The readings also explore the ways in which official definitions of rights are refracted through the lens of legal consciousness. The chapter concludes with a look at recent law and society studies that take a less individualistic approach to rights and emphasize instead the relational dimensions of legal consciousness.
Chapter 5: Legal Mobilization. Legal mobilization refers to the use of law to express claims and desires in order to achieve change or protect interests. It can be carried out by individuals or by a group of people acting collectively. Importantly, legal mobilization encompasses more than going to court to litigate disputes, an action that may prove ineffective or even irrelevant in some Asian contexts. In addition to litigation, legal mobilization occurs in other ways, even when an individual or group merely articulates a problem to a confidante in terms of rights or other legal concepts. In Asia, this broader concept of legal mobilization is especially apropos, since so much “legal” activity - broadly construed - takes place far from the justice institutions the state has established. In this chapter, the readings illustrate the range of tactics used by those who mobilize the law to achieve their goals. They also illustrate both the risks and the rewards associated with the invocation of legal rights in Asian societies. As the authors make clear, rights can have paradoxical effects, and can simultaneously empower and disempower or stigmatize those who use them. In some instances, however, the results are hugely beneficial to those who felt hopeless in the absence of legal protection.
Chapter 6: Legal Professions. The legal professions in Asia are a plural concept. Many Asian countries are civil law jurisdictions in which lawyers, judges, and prosecutors are separately licensed. Even in common law jurisÂdictions, lawyers rarely are a homogeneous professional group. In addition, there are many paralegal or unauthorized occupational groups that parallel the profession of lawyers. The meaning of being a “lawyer” in Asia, therefore, is often more complex and controversial than in the North American or European contexts. The vastly different types of legal professions across Asia range from barristers and solicitors in Hong Kong and unified legal professions in India, Pakistan, Malaysia, Singapore, and other former British colonies, to Continental-style judges and prosecutors in Japan, Korea, and Taiwan, to Soviet-style “iron triangles” of police, procurators, and judges in China and Central Asia, and to the vast number of unlicensed “barefoot” lawyers across the continent. This chapter provides an overview of the plurality of legal professions in different Asian countries and their demographic and socioÂlogical characteristics. It goes on to highlight the market for legal services, demonstrating not only the connections between lawyers and different kinds of clients and practice areas, but also the interactions between the legal professions, the judicial system, and the state. The chapter concludes with a few readings on the role of lawyers in transforming the state - and the impact of state transformations on the lawyers themselves.
Chapter 7: Courts. This chapter examines courts in Asia as cultural symÂbols, social organizations, and political battlegrounds. As cultural symbols, courts are often embedded in religions, colonial legacies, and local norms. These cultural symbols are found in both informal tribunals and more instituÂtionalized religious and secular courts. As social organizations, courts are intertwined with bureaucratic hierarchies, political influences, and the career trajectories of judges. This is particularly salient in civil law jurisdictions across Asia. As political battlegrounds, courts provide a space for the judicialization of politics as well as a soil for judicial corruption. The readings also examine the complexity of judicial decision-making in different national contexts. In addition, the readings highlight the nature and impact of judicial reforms, which take place amidst broader political and social changes in both demoÂcratic and authoritarian contexts and can lead to tensions as well as encourage new alliances.
Chapter 8: Crime and Justice. The criminal justice system constitutes a major component of the legal system in every country. Unlike criminology, law and society research does not seek to calculate crime rates or identify causes of crime but instead focuses on how criminal justice interacts with other elements of law and society, such as lawmaking, human rights, violence, and the rule of law. Furthermore, law and society scholars consider justice a culturally sensitive concept, something socially constructed and politically embedded. As lawyers have been discussed in detail in earlier chapters, this chapter highlights the role of the police, prosecutors, and judges in the criminal process and examines the domestic and transnational forces that shape criminal justice reforms across Asia. The chapter also emphasizes the administration of criminal justice in everyday policing, including violence, torture, and other forms of power abuse affecting marginalized groups such as women, the poor, indigenous peoples, and ethnic and religious minorities. It further interrogates the cultural meanings and everyday manifestations of justice in criminal trials and other coercive systems of social control in different Asian countries.
Chapter 9: Practicing Law and Society Scholarship in Asia. This final chapter contains readings that illustrate how law and society scholars have conducted or drawn on empirical research to pursue questions and build theory about law in Asian societies. It is, however, not a guide for pursuing various research methods or a manual for asking and answering research questions. Rather, the purpose of this chapter is to provide useful examples of how Asian law and society scholars go about their work, what challenges they encounter, and how they address them. It features both classic research methods and new and innovative approaches. One set of readings illustrates how researchers have obtained access to their subjects and how they have collected data. A second set of readings shows how researchers have wrestled with aspects of their own identities in relation to the research site and the people whom they study. Do they position themselves as insiders, outsiders, or some other type of figure? A third set of readings illustrates law and society researchers practicing their craft in the digital age, using social media and other advancements in communication technologies to pursue their research questions. All three sets of readings are drawn from studies that appear in Chapters 1 through 8. In this way, readers will be able to peek behind the curtain, so to speak, and gain a better understanding of how the authors featured in this book struggled with the challenges faced by all researchers - and how they successfully overcame them.
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