This paper explores the relationship between law and social theory through a discussion of the shifting views over the last century. The conversation is framed by the example of publication bias in private-public partnership networks, and the inability of a single social theory, including theories of morality and economic utility, to explain the situation’s complexities. The paper argues that where social theory meets law an added value can be generated in terms of legal doctrine if the precarious relationship between autonomy and interconnectedness is respected in terms of transversality, responsiveness, and self-normativity.

This paper asks how globalization relates to legal culture. It argues that there exists, at least in the developed world, a general global culture; it follows, then, that there must be a global legal culture as well. Not everyone in modern societies is completely drawn into the global legal culture, however, as the research of the David and Jaruwan Engel in Thailand suggests. In general, however, the legal cultures of modern, developed societies are strongly convergent. In particular, there is emerging a global and convergent culture of human rights. Some Asian scholars and political figures have argued that conceptions of fundamental human rights are culturally Western, and may not suit the cultures of the East. The paper argues, however, that the human rights culture is not “Western” so much as modern; it arose in the West, but it is no more unsuitable to Asian societies than the automobile and the computer, which also arose first in the West.

The present paper reviews some conclusions deriving from a series of works by a historian of medieval Western law and justice who has applied comparative analysis to the Chinese world. It points to the distance between the two civilizations, in terms of the concept of a “debt of justice” owed by the state, the autonomy of the judicial power, and judicial ethics. It opens a debate on the cultural elements that define the judicial truth-making process in various legal systems.

This paper addresses the controversial concept of legal culture. It first considers the different meanings of the term and the variety of debates in which it figures. It then goes on to consider difficulties in deciding the units to which the term “legal culture” is applied, and the problems in using the term in explanations. It concludes by examining the way assumptions about what gives legal culture its coherence have implications for explaining how and when it changes. In each section of the argument an attempt is also made to show the relevance of these questions for the Asian Journal of Law and Society as seen in the papers published in its first issue.

This paper focuses on the roles of formal rules (laws) in institutional emergence, sustenance, crisis, and transition based on an examination of the Meiji Restoration and the Xinhai Revolution. It describes how formal rules in the polities of Qing China and Tokugawa Japan were enforced, supplemented, or modified by the strategic interactions among the ruler, the intermediate organizations, and the peasantry. It then discusses how the strategic complementarities between the ruler and the intermediate organizations were transformed into strategic rivalries in response to changes in the economic and foreign environments, resulting in the demise of dynastic rule in each country. The post-transition constitutional design was affected by the ways in which the strategic reconfigurations had led to the demise of the dynastic rulers. This historical narrative suggests that formal rules per se do not necessarily create institutions in the sense of an integral pattern and process of social behaviour and ideas. A formal rule can function as a substantive form of an institutional process if, and only if, it mediates between a recursive state of strategic interactions among agents and individual belief formation in order to sustain the social order.

Abstract

This paper traces the development of law and society studies in South Korea, elucidates the political implications of the academic practices of law and society scholars, and identifies the forms of their political engagement. It canvasses the situation of law and society studies in the pre- and post-Liberation periods and analyzes the changes that have occurred since law and society came to be studied and taught in universities. The paper shows how the early generations of scholarship were sidestepped in the 1980s by the so-called “third-generation legal scholarship” and delineates the counter-hegemonic movement launched by the new generation of scholars. It throws light on the empowerment of critical law and society scholars in the post-democratization phases of the 1990s and 2000s, when many of those scholars actively participated in policy-making and civil advocacy, and discusses the tensions in those developments.

Against the background of increasing social diversification in a market economy, this paper examines the challenges confronting China’s existing power structure and system of authority. Both to overcome the legitimation crisis of ruling and to achieve a soft landing of the political reform depend on reconstructing the authority of the rule of law through judicial reform as the breakthrough point. For this very reason, the top-level design of regime transition can follow a two-step strategy of building a rule of law country first, to be followed by restructuring power, so as to achieve democracy via the rule of law. It also proposes a conception to institutionalize the rule of law, emphasizing that the alternative three-review mechanism is both necessary and feasible, in that a top-level design of judicial review can contribute to our strivings for judicial fairness, an implementation of budget review and accountability review at the grassroots level for fiscal democracy, and the synergy of high-level and grassroots powers for a virtuous circle between the rule of law authority and democratic polity in mutual enhancement. There also comes the moment for plural efforts to both drive and achieve the rule of law based on the three-review mechanism.

Since 1990, successive waves of foreign experts have introduced legal transplants into Cambodia dealing with the possession, use, and ownership of land. The Land Law of 2001, sponsored by the World Bank, first created a registration system that made land ownership dependent exclusively on a central cadastral registry. The 2007 Civil Code, sponsored by the Japanese International Cooperation Agency, subsequently cast doubt on the exclusivity of the registry by declaring it only presumptive evidence of ownership. Both laws are based on foreign models that presume economic, technical, and professional resources that Cambodia, as a very poor, post-conflict country, lacks. Despite recent efforts to reconcile the laws, implementation remains uneven and legal ambiguity persists. While it is too early to make conclusive judgments, the Cambodian experience brings into question not only the wisdom of top-down foreign intervention but also the desirability of any form of centralized formal legal construction in a society without the necessary social, political, and institutional prerequisites.

The Chinese judicial system has long been influenced by a populist legal ideology that prioritizes public accountability and political legitimacy over professional autonomy. In recent years, however, the Chinese legal profession has begun to mobilize collectively, albeit episodically, to challenge this populism. Drawing on legal documents, interviews, media reports, and online discussions, this paper provides a scholarly analysis of the Li Zhuang case in 2009−11, in which the fate of an individual criminal defence lawyer was linked with the main ideological conflict in China’s legal system and the highest-level political struggles in the Chinese state. It demonstrates that, although populism remains an intimidating force in China’s judicial practice, lawyers, scholars, and other legal professionals may be laying a foundation for collective solidarity to pursue professionalism through their mobilization against populism.

It has long been argued that the legal system does not have a strong role in explaining China’s economic miracle; therefore, China is often presented as an anomaly for the “law matters” hypothesis. This study contributes to the debate from a unique perspective by examining the connection between law and the operation of factor markets. In China, laws and regulations governing factor markets have been systematically distorted by the government, intentionally or unintentionally, to facilitate the nation’s enormous economic growth in the short run at the cost of environmental quality, ordinary citizens’ welfare, and long-term economic health. Thus, China has become a fast-growing but unsustainable economy.

In many countries, the size of a law firm is closely related to the specializations and incomes of the lawyers it employs, and can be considered an index for disparities among lawyers. Gender and school prestige may affect the size of the first firm that lawyers join. Moreover, since the lawyer population has quadrupled over the last 20 years in Japan, mainly due to judicial reform, I hypothesize that this population increase has changed how gender and school prestige affect the size of the first firm law school graduates decide to join. To test this, I conducted a secondary statistical analysis on the effect of gender and school prestige on the size of the first firm that lawyers joined, using survey data collected by the Japan Federation of Bar Associations in 2010. Findings suggest that there were no significant differences in the size of women’s and men’s first employer, but that school prestige was significant. Moreover, the importance of school prestige has increased over the years.

Court mediation is now playing a crucial role in the Chinese legal system. Based on two case studies in Yunnan Province, this paper examines how court mediation works in Southwest China. It finds that court mediation can expand the capacity of the court concerning case acceptance, and is capable of fixing multicentre disputes and complicated social problems. However, the paper also points out that when encountering some ill-suited cases, justice may be undermined and the judge’s role may be confused. Therefore, it is necessary to pass some law to exclude the ill-suited cases from the mediation track when promoting court mediation in Southwest China.

Unlike Western common-law jurisdictions where plea bargaining has been acknowledged, official discourse in Hong Kong denies the existence of plea bargaining. However, defence lawyers are staunch supporters of its use behind the scenes. Using in-depth, semi-structured interviews with Hong Kong criminal defence lawyers, it was found that lawyers’ justifications are based on four main grounds: it is non-coercive because the final decision is left to the accused; negotiations avoid the risks of trials; plea bargaining is a practical solution that is in the best interests of the client and the state; and the courts implicitly tolerate the practice. The findings can be explained by Eisenstein and Jacob’s (1991) courtroom workgroup model. The present study seeks to bridge the gap in the literature where plea bargaining has only been discussed predominately in the context of Western common-law jurisdictions.

This paper extends the empirical analysis on the determinants of judicial behaviour by measuring the ideal points for the Justices of the Philippine Supreme Court for 1986−2010. The Philippines is an interesting case given the US influence in designing the Supreme Court while the political and social context differs significantly. The estimated ideal points allow us to focus on political coalitions based on presidential appointments. We find strong evidence to support the existence of such coalitions along a government-opposition policy space. Implications for comparative judicial politics are discussed.

Burmese colonial history suggests that a legal system cannot operate independently from the felt needs of the people who are supposed to obey the law. Despite a monopoly of force for many decades, the British failed to create a sustainable legal system in Burma. Colonial status shifted Burma’s economic role from subsistence agriculture to the generation of large-scale exports. By undermining the traditional Burmese legal system and substituting Western international standards of property rights, enforceability of contracts, and an independent judiciary—all attributes of what some consider to be the “Rule of Law”—the legal system amplified and channelled destructive economic and social forces rather than containing them. This paper examines traditional Burmese law, the administration of law in British Burma, and the consequences of the new legal system for the country and its own stability. The paper concludes by suggesting lessons for Myanmar today, and for the study of the “Rule of Law.”

Generally speaking there has been a relative dearth of serious scholarship focusing on the evolution of Indian labour law in its economic, social, and political contexts. Such work as there is tends to be constituted of fragmented and short journal articles and notes, including those by labour economists and industrial relations scholars. The present work undertakes a survey of the literature in the field, examining first the various periods through which Indian labour law has evolved up to the present time, and second the extent to which the labour law system can be seen to have fulfilled its two core objectives: the protection of labour and the maintenance of industrial peace. The survey reveals that Indian “labour law” in the formal sense has very little purchase in terms of its application in pursuit of its objects. This, in turn, suggests that some other approach is required to reach a more grounded and accurate understanding of how, and to what effect, labour is regulated in India.

This paper investigates how culture affects people’s attitudes towards directors’ duties in the People’s Republic of China by surveying a sample of Chinese business executives. If cultural practices lead people to behave differently from what the law prescribes, it is a serious regulatory oversight. Our results suggest that Chinese cultural values do matter when it comes to the perception of breaches of directors’ duties. Specifically, we find that respondents who identify with moral-discipline related traditional Chinese values are more lenient to the chairman breaching his director's duties, whereas respondents who subscribe to modern Chinese values are less receptive to the director failing to report the chairman’s contravention of his director’s duties. These results suggest that it is imperative for China’s law-makers to rethink their approach to regulating directors’ duties instead of the wholesale transplantation of laws from Western countries.