Dear distinguished guests and members of the Asian Law and Society Association (ALSA), welcome to the annual ALSA conference, held this year on 15–16 December 2023 at Sunway University, Malaysia. This year’s ALSA conference marks the seventh annual meeting since the inaugural conference was held at the Faculty of Law, National University of Singapore, in 2016. However, it is the first time that ALSA features a presidential speech at its annual conferences—a practice that I hope will become tradition from now on. I have been involved with ALSA since its founding, and the association has been a part of my growth as a law and society scholar. For the past two years, I also had the honour and pleasure of serving this growing association as its fourth president. Delivering this speech, therefore, is a delightful and meaningful way to bring my ALSA presidency to a close.
As part of my involvement with ALSA, I have seen the field of Asian law and society grow rapidly in the past decade and how law and society scholars make the region a focal point for innovation in methods and theory in the discipline of law and society. The expansion in the number of venues for scholars to discuss and share their work is an example of this demand. For example, two journals relating to Asian law and society scholarship were established in the 2010s—the Asian Journal of Law and Society in 2013 and the China Law and Society Review in 2016. This association, ALSA, was founded in 2015 and started holding annual meetings in 2016. The ALSA annual meetings succeeded the regular conferences of the East Asian Law and Society (EALS) Collaborative Research Network organised under the US-based Law and Society Association. Every year, several hundred people attend and present their work at ALSA conferences. With a remit larger than EALS, ALSA welcomes and features papers and participants interested in a broader region of Asia, from Northeast Asia to West Asia.
Of course, Asian law and society studies have been around far longer, traceable to movements in countries such as Japan, China, India, and Indonesia. In fact, Japanese scholars started to carry out law and society research at the beginning of the 20th century, when their government “modernised” Japanese law based on European models. These pioneers established the Japanese Association of Sociology of Law as early as 1947, making the association the first and oldest law and society association in the world. David Engel, Sida Liu, and I have discussed the geneses and early currents of law and society scholarship in Asia in our book published in 2023, The Asian Law and Society Reader, so I do not go into detail here. Instead, I wish to point out a remarkable observation that we made when we put together the Reader. That is, we came across and collected thousands of articles, papers, and books about Asian law and society which were published in the past decade.
Recent years have brought a dramatic proliferation of scholarship from a wide representation of Asian societies including the following books published just in the last five years: Kristina Simion’s Rule of Law Intermediaries: Brokering Influence in Myanmar (Reference Simion2021); Tu Phuong Nguyen’s Law and Precarity: Legal Consciousness and Daily Survival in Vietnam (Reference Nguyen2023); Ke Li’s Marriage Unbound: State Law, Power, and Inequality in Contemporary China (Reference Li2022); Margaret Boittin’s The Regulation of Prostitution in China: Law in the Everyday Lives of Sex Workers, Police Officers, and Public Health Officials (Reference Boittin2024); Jinee Lokaneeta’s The Truth Machines: Policing, Violence, and Scientific Interrogations in India (Reference Lokaneeta2020); Yasser Kureshi’s Seeking Supremacy: The Pursuit of Judicial Power in Pakistan (Reference Kureshi2022); and Kalyani Ramnath’s Boats in a Storm: Law, Migration, and Decolonization in South and Southeast Asia, 1942–1962 (Reference Ramnath2023).
Nonetheless, such rapid growth may lead to questions about the core of Asian law and society scholarship. Such questions often come up at junior scholars’ workshops that my colleagues and I organise or facilitate. Generally, law and society scholars have also grappled with the same sort of questions from time and time. Some of them have even attempted to posit a canon, a standard set of texts, problems, and approaches that scholars in a field or discipline typically use or invoke.Footnote 1 The answer to these questions about the core of Asian law and society will vary and depend on whom you ask, a plurality that probably has much to do with the diversity of scholars in our discipline. As you look around in the audience, you will note that some of you come from the legal academy, while others are political scientists, historians, anthropologists, sociologists, and area studies experts, and you all possess different research orientations and methods specialisations.
I believe there is a core set of theories, methods, and foci in law and society that applies to Asian law and society, which David, Sida, and I presented in the Reader. That is, we, law and society scholars, study law and legal institutions as social phenomena. We do not present law and its institutions as autonomous systems operating independent of its environment but as “embedded” in society. Therefore, we do not and cannot study law exclusively on its own terms. We study law or legal institutions, such as courts and legal professions directly, alongside other social and cultural phenomena. We use a variety of methods for our study, such as historical or archival research, participant observation, qualitative interviews, surveys, other forms of quantitative data analysis, laboratory studies, and natural experiments, among others. Generally, we do not analyse law texts—judicial opinions, statutes, regulations, contracts, and the like—on their own terms but situate them in particular social and cultural contexts that must be brought into the discussion in one way or another. In addition, our findings reveal how law or its institutions, procedures, relationships, and processes actually work—and how they fail. And we persistently uncover the gap between law’s aims and its actual impact, as we examine law’s intended and unintended consequences.Footnote 2
Within this core, however, lie differences, which you may already have noticed from my above description of the core itself. These differences, too, help constitute the burgeoning field of Asian law and society, coalesce scholars within it, as well as connect them to the larger discipline of law and society. Similarities and differences, therefore, make up the theme of my speech today.
To elaborate on the theme, I want to share with you three, recently published books, all of them the first monographs of early-career scholars. I choose these books and relate them to the theme of this speech because I also want to draw attention to the research by the next generation of Asian law and society scholars and demonstrate the bright future of the field: Thaatchaayini Kananatu’s Minorities, Rights and the Law in Malaysia, published by Routledge in 2020; Yue Du’s State and Family in China: Filial Piety and Its Modern Reform, published by Cambridge University Press in 2022; and Rahela Khorakiwala’s From the Colonial to the Contemporary: Images, Iconography, Memories, and Performances of Law in India’s High Courts, published by Hart in 2019.
As I discuss these three books, you may observe that they differ from one another in terms of focus, subject matter, methods, and findings. Nevertheless, they all embody a hallmark of law and society scholarship, which is to investigate what is often taken for granted by everyday folks or legal experts. Let me illustrate with a well-known example in law and society—disputes and disputing. Legal professionals and legal scholars usually take for granted the contents and nature of a “dispute” that has already entered the formal court system or has reached the lawyer’s office. They associate the issue with certain concepts of law and legality and assign it to certain doctrinal categories or sub-areas of law, such as criminal, contract, tort, or, to use a civil law term, obligations. However, these are all assumptions steeped in a formal legal institution. Since the early days of our discipline, law and society scholars realised that studying disputes by focusing on court cases, especially decisions and doctrines handed down by apex courts, was sorely inadequate to understand how law actually operated in a given society or culture. So, they shifted their attention to the dispute itself. They started, not from a lawsuit, formal category of law, or legal text, but from empirically tracing how a grievance emerged, what it was about, whether and how it turned into a dispute—that is to say, a contention between two or more parties—where the disputants took their contention, and how it was handled, including whether and how they resorted to formal law.Footnote 3
Similarly, Kananatu, Du, and Khorakiwala in their book-length studies verify, explain, or question something that is taken for granted and show that it should not be so. As a result, they uncover important findings about legal power. They illuminate how the state played a critical role by using law to create the “taken-for-granted” thing. They also offer lessons about legal power, especially how law helps to shape identity and social relations. Yet, at the same time that they share these similarities, their books produce divergent findings about law, its institutions, and its actors. To put it another way, the differences among the three books reside within their similarities of investigating the taken for granted and connections to legal power. As I introduce the three books in turn, I elaborate on the key features of each book and their similarities to one another. When I conclude my speech, I return with further remarks about how similarities as well as differences are essential to uniting us as law and society scholars and to strengthening the discipline.
1.1. Minority, Rights and the Law in Malaysia
Let me start right here in Malaysia with Thaatchaayini Kananatu’s Minorities, Rights and the Law in Malaysia. Dr. Kananatu is a Senior Lecturer in Global Studies at the School of Arts and Social Sciences, Monash University Malaysia. Her book asks how law and rights matter to collective mobilisation by Malaysia’s Indian community, which consists of underclasses who are descendants of Indian Tamil plantation labour and the urban middle class. To answer her research puzzle, Kananatu analysed archival documents and conducted semi-structured interviews with three groups of people—Malaysian Indian leaders in non-governmental organisations, grassroots community groups, and civil society; activist lawyers; and Malaysian Indian politicians.
Minorities, Rights and the Law in Malaysia is a legal mobilisation study, a well-established research tradition within law and society. By legal mobilisation, sometimes used interchangeably with “rights mobilisation,”Footnote 4 I mean a phenomenon that occurs when people “make sense of and express their problems in a language of rights. Co-labouring in groups or working individually, they interpret and adapt rights to fend off attacks, push back restrictions, and recoup losses or fight for admission into institutions previously denied to them. They also use rights to empower others to participate in rights mobilisation” (Chua, Reference Chua2022, p. 7). In addition, legal mobilisation research usually adopts a broad construction of rights’ power. Besides recognising that rights possess instrumental power to compel or prevent action, legal mobilisation scholars examine their symbolic power, treating rights as a set of cultural resources that people can draw upon to formulate, think about, and react to their experiences and troubles.
Legal mobilisation research is partially rooted in the study of the American civil rights movement, which is why some law and society scholars refer to this body of research as “law and social movements,” although this term would only accurately cover collective legal mobilisation.Footnote 5 From the American civil rights movement, scholars gradually expanded their research to other kinds of legal mobilisation by and for disenfranchised or dispossessed populations (but not exclusively). Situated within this body of research, Minorities, Rights and the Law in Malaysia stands out by focusing on a lesser known, less investigated setting for law and society scholarship. In fact, Kananatu’s book is one of the few, book-length studies about a case of collective legal mobilisation by an ethnic minority in Malaysia, contributing to a formative research trend in the sub-discipline of Asian law and society.Footnote 6
Kananatu describes the ethnic minority of Malaysian Indians as quiet and diverse. Throughout three political eras—the British colonial period, the early years of independent Malaysia, and the first two decades of the 21st century—Malaysian Indians have experienced discrimination and other forms of grievances. However, Malaysian Indian mobilisation took on three contrasting phases. They were mostly subdued during colonial rule and the formative stage of post-colonial government. Only from the mid-1990s to the late 2010s did Malaysian Indian mobilisation become more organised and vocal. In other words, Kananatu encounters a classic problem of social movements: grievances are a necessary but insufficient condition for collective mobilisation. The apparent presence or absence of grievances alone cannot explain why or how a group of people might take up collective action (Moore, Reference Moore1978), including mobilising for their rights.
Through her fieldwork, Kananatu was able to understand why Indian Malaysians sometimes mobilised collectively and other times laid low. She learned that the contrasting three phrases of Indian mobilisation had a lot to do with the relationship with law and race. Both the British colonial and post-colonial Malaysian governments employed law to repress mobilisation. In addition, while both governments used law to create an Indian social group, they simultaneously suppressed Malaysian Indian mobilisation by segmenting this group into sub-ethnic classifications to obstruct the formation of a cohesive, collective political identity.
However, some activists and lawyers were able to draw upon rights discourse to overcome these barriers, particularly during the last phase of Kananatu’s study, 1990 to the late 2010s. They organised the Malaysian Indian community to reshape it from being a “quiet minority” into one that participated in mass mobilisation. The peak of this movement during the period of her study was a rally by the Hindu Rights Action Force (HINDRAF) through the capital city centre to present a petition addressed to Queen Elizabeth to the British High Commissioner of Malaysia, requesting for a Queen’s Counsel to represent descendants of Indian indentured labourers in a civil action suit against the British government. HINDRAF leaders also submitted a letter addressed to the British prime minister, accusing United Malays National Organisation, the Malay component party of the ruling coalition, of practicing racial prejudice and unequal treatment of Malaysian Indians.
Kananatu observed that these organisers used rights to forge a minority group identity that transcended divisions within Malaysian Indians, framed certain grievances as common among them, and got them to band together around those grievances. For example, the leaders cited constitutional rights and drew upon international human rights provisions on the protection of ethnic minority rights. Critically, in spite of the repressive use of law by the state, they demonstrated how state law was part of the problem and helped to produce the grievances common among Malaysian Indians. They also transformed law and the legal system into a site of contention, by carrying out strategic litigation directed at two specific issues—the inequality of citizenship and discriminatory treatment linked to laws and policies that privilege the Malay majority ethnic group. In short, Kananatu identified and explained how three elements needed to be present for Indian collective mobilisation to emerge: (i) social actors, specifically organisers who are able to (ii) make use of the symbolic power of rights to formulate (iii) a collective ethnic–political identity that cuts across internal fractions of Malaysian Indians.
Kananatu’s book exhibits the following attributes found in the other two books that I will discuss next. Kananatu explicated how Malaysian Indian ethnic identity is a product of social construction and contestation, and not a taken-for-granted “trait” that evidently explains why there is any mobilisation or not. She showed how both colonial and post-colonial governments constructed legal categories of Indian identity that resonated with existing social hierarchy, and how these very categories served to divide and suppress Malaysian Indians. Moreover, by elucidating the socially constructed and contested nature of the Indian ethnic identity in Malaysia, she explained how activists were eventually able to reconstruct a collective political identity to bridge sub-group differences and mobilise an otherwise diverse and fragmented community.
Therefore, by problematising a taken-for-granted social fact—Indian ethnic identity—Kananatu revealed that the law affected Malaysian Indian mobilisation in multiple ways. On the one hand, when law was wielded by the government as a repressive tool—an account we also find in law and society studies elsewhere—it helped to create the grievances of Malaysian Indians. On the other hand, law provided opportunities for resistance, when Indian activists were able to harness the power of rights-based legal language to invoke ethnic minority rights, construct a collective identity, and rally their constituents.
1.2. State and family in China
The second book is Yue Du’s State and Family in China: Filial Piety and Its Modern Reform. Dr. Du is assistant professor in the History Department at Cornell University. Her book examines how late imperial China and Republican and Nationalist Chinese governments regulated parent–child relations. To address her inquiry, Du collected and analysed police and court records from national, municipal, and county-level archives across China, many of which are only recently available to scholars, as well as consulted published case books. Understanding legal developments of the late Qing and early 20th century illuminates the current Chinese government’s family reforms, in particular, how the imperial cult of filial piety endured through the People’s Republic of China’s modern appropriations to become a powerful governing mechanism. More broadly, State and Family in China sheds light on how state intervention into arguably the most rudimentary relationship in many Asian societies shaped China’s transformation from empire to nation state.
Law and society scholars have always been interested in the dynamics among family, state, and law. But Du’s book offers distinctive contributions to this body of research by focusing on the parent–child bond, which she describes as the foundation upon which we understand gender and other familial relations in Chinese societies. Such a focus goes beyond the usual law and society concerns about law in familial contexts. Du pointed out that the study of China’s regulation of family relations from the late imperial period to the early 20th century, with only a few exceptions,Footnote 7 concentrates on sexuality and conjugal relations. In law and society generally, it is almost always the case as well that scholars examine issues of divorce,Footnote 8 or sexuality and gender.Footnote 9 Only a few studies notably consider parent–adult child relations (e.g. Hartog, Reference Harding2012; Liu, Reference Liu2023; Chua, Reference Chua2024) or familial relations in the context of ageing and care (e.g. Levitsky, Reference Levitsky2014).
According to State and Family in China, political regimes of the day—late Qing dynasty, early Republican government followed by Nationalist government—contended differently with the principle of filial piety, cultural norms and teachings that govern behaviour and actions towards one’s parents from the children’s youth to adulthood. But all three regimes tried to manipulate filial piety to strengthen their political power over their subjects or citizens, as the case may be, and, accordingly, sustain their rule. Significantly, Du points out, their attempts at manipulating the principle of filial piety heavily relied on legal tools, such as enacting legal codes and enforcing them through the courts.
During the late imperial Qing, as was the case during earlier dynasties, the emperor governed through the well-known maxim, “ruling the empire by the principle of filial piety” (xiaozhitianxia 孝治天下). The principle exalted near-absolute parental authority over children: by disciplining the conduct of children towards their parents, it aimed to mould subjects who would also be compliant towards the emperor and his empire. Therefore, Du argues, the empire’s main intention behind the harsh laws on filial piety was not to protect Confucian morality or parental authority. It was political—to ensure the legitimacy of the dynasty’s rule and dominion over its people.
Subsequently, in the early 20th century, the Republican (1912–1928) and Nationalist (1928–1949) governments attempted to reform the legal foundation of Chinese parent–child relations in both the criminal and civil codes. By the end of the first half of the century, from enjoying lifelong custodial rights over their children’s property and labour, the new laws left parents with only transitory guardianship granted by the state and entitlement to limited financial support from their children, a sum that took into account their children’s ability and needs. Children’s defining relationship shifted from being with their parents to being with the state.
The reforms appeared to confer rights to children and align laws governing parent–child relations with perceived Western standards of the time. However, akin to the Qing era, “individual freedom was neither the premise nor the end” (Du, Reference Du2022, p. 217). At the heart of these reform efforts, Du writes, are political regimes attempting to modernise and strengthen China after years of internal dysfunction and external threats. By eroding parental authority, the new efforts aimed to enable the state to control children directly without working through parents or “ruling through the principle of filial piety.” Thus, Du showed how the Qing dynasty and succeeding governments of the early 20th century changed the legal bonds of parent–child to serve their political needs and interests of the given era.
At the same time, in all these periods, parents and children who engaged the legal system in their everyday lives experienced filial-piety-related laws differently from officers and judges who managed and implemented the laws. In sum, Du observed, the interactions between ordinary folks who engaged law from below and bureaucrats who imposed law from above mutually constituted not only laws of the state in practice but also morality and local life. Indeed, some parents took advantage of state-sanctioned filial piety, especially during the imperial period; for example, they reported their disobedient sons to the authorities and made use of the courts to discipline their grown-up children. On the other hand, laws governing parent–child relations did not always match cultural norms on the ground. The inconsistencies stood out most prominently during the reforms of the early 20th century. The new legislation of the republican and nationalist periods that redefined parenthood ran into resistance and did not easily take root, having failed to resonate with China’s vast populace, especially people living in the rural areas far away from the governing metropoles.
State and Family in China shares a key trait with Kananatu’s book, which is to investigate something that is taken for granted. Du’s book shows that filial piety, the cultural norms around the morality and supposed “naturalness” of the obligation to look after one’s parents, is intimately linked to state power. Although filial piety norms exist in the social practices of everyday lives, people engaged them in interaction with state laws and institutions that tried to control filial piety to serve political purposes. Hence, from Du’s study, we learn that filial piety is no “natural” or “moral” obligation but a product of power struggles, one that is constantly remade by the back and forth between state regulation of parent–child relations, and parents’ and children’s understandings and negotiations of those laws and regulations.
Nonetheless, compared to Kananatu, I find that Du adopts a less optimistic view of law despite acknowledging its capabilities of being harvested for resistance from the ground. Although some ordinary folks did take advantage of the legal system, particularly parents in the Qing dynasty, to fabricate accusations or advance personal interests, Du concluded that they ultimately reinforced the very hierarchies that dominated their lives by allowing the system to influence their behaviours and beliefs. She wrote, “Law worked to shape and reshape society through persuasion as well as coercion. Force worked best where it was in alliance with human initiative” (Du, Reference Du2022, p. 14).
1.3. From the Colonial to the Contemporary
Last but not least, I turn to Rahela Khorakiwala’s book, From the Colonial to the Contemporary: Images, Iconography, Memories, and Performances of Law in India’s High Courts. Dr. Khorakiwala is a law professor at Birla Institute of Technology and Science Law School in Mumbai, India. Her book is about how people interact with the architecture, iconography, and other physical arrangements of court buildings and courtrooms, and through those interactions how they imagine and understand what the law to be and should be. Khorakiwala selected three court houses in India for her study—the Calcutta, Bombay, and Madras High Court buildings. Completed in the late 1800s, the original structures are still the main buildings for these three High Courts, which she describes as representatives of the visual culture of courts and of law and justice in India.
You could say that Khorakiwala’s book is a study about law and courts, another long-standing research area of law and society. Scholars of law and courts who take a law and society perspective do not channel their attention primarily into analysing judging preferences or major Supreme Court decisions, as many political scientists do. Instead, law and courts scholars undertake empirical studies that probe formal legal processes and find out how they really work. For instance, they study public defenders’ office, legal aid, lower courts, administrative agencies, juries, police, and prosecutors, and they go beyond formal legal actors to examine interest groups, public interest litigation, and legal mobilisation directed at the courts.Footnote 10
From the Colonial to the Contemporary ventures further. It is nothing like most law and courts studies you have come across. Informed by an eclectic mix of visual studies, legal anthropology, aesthetics, legal theory, and legal history, Khorakiwala examines “the regulation of the visual in the law, the symbolism of the courtroom as a performative space and the constitution of the court as a theatre where justice is not only done, but must also be seen to be done” (Khorakiwala, Reference Khorakiwala2019, p. 3). Even though other law and society scholars have employed visual methods, such as analysing photographs (Moran, Reference Moran2021) and maps (Suresh, Reference Suresh2024), these methods are certainly newer to the discipline compared to interviews, participant observations, and archival research based on texts and documents.Footnote 11 In Khorakiwala’s case, her combination of methods with a heavy emphasis on the visual is probably best described as a form of visual ethnography. She collected and analysed official archives on court architecture and procedure, manuals of the three High Courts, autobiographies, relevant judgements, and newspaper articles, as well as images of paintings, sculptures, murals, photographs, sketches, advertisements, and other visual representations from or related to the three courts. In addition, she supplemented the visual materials with participant observations of court proceedings and oral history interviews.
Khorakiwala points out throughout her book, despite possessing unique architectural styles and iconology of signs, symbols, and motifs, the Calcutta, Bombay, and Madras High Court buildings all represent the imposition of state power, first the colonial power of law and then the post-colonial government’s. These findings are probably unsurprising. But Khorakiwala’s research empirically confirms what were perhaps assumptions and expectations. With rich ethnographic detail, she shows how each courthouse radiates state power and prestige through the building façade, carvings, statutes, paintings, portraits, the seating arrangements, acoustics, and dress, rites and rituals of the courtrooms: “The way the court is structured, in its physical form along with its rules and traditions, contribute to this feeling of awe towards the law and the courts. The judicial iconography that exists in the three High Courts provide certain symbolic images of the law and they play a role in how the court is perceived” (Khorakiwala, Reference Khorakiwala2019, pp. 248–9).
Another fascinating aspect of Khorakiwala’s book was the resistance she finds against certain visual memorialisations of law at the three high courts. The contentions included those over the connections between the Calcutta High Court’s building design and the original one in Belgium; the use of the central courtroom at the Bombay High Court where a nationalist hero had been convicted by the British colonial courts; the installation of a plaque commemorating the same nationalist hero; and the erection and depiction of statues. Although the episodes of contestation were not always successful, they vividly demonstrated the power of law embedded within its visual culture.
Let me highlight one example from the book’s list of contentious events. In Chennai, Indians objected when the British wanted to erect a statue of Sir Tiruvarur Muttuswami Iyer, the first Indian to become a judge of the Madras High Court. The Indian objectors felt that the concept of installing statues was European, and the veneration of humans through stone statues was alien to both the religions of Hinduism and Islam. In disregard of these local objections, British colonial judges went ahead with their plan. The controversy did not stop there. The statue portrays Iyer barefooted. One plausible explanation for Iyer’s barefooted portrayal was that the Court was a “temple,” a holy space that required the removal of shoes before entry. However, Khorakiwala’s interviewees referred to various episodes in colonial history that indicated the deep connection between the banning of footwear as a sign of deference from native Indian vakils towards their colonial masters.
From the Colonial to the Contemporary shares with Kananatu and Du’s books the characteristic of investigating the taken for granted. Khorakiwala paid attention to the things that many of us would consider to be the backdrop when we go to the courts to observe proceedings, interview people, or sift through their archives. She foregrounded the background and scrutinised it. In doing so, Khorakiwala shines the spotlight on another set of possibilities of studying law and courts: the visual, such as carvings, statues, portraits, and inscriptions that inhabit the courts, too, can offer important data for understanding law and its relationship to social relations and human agency. Thus, similar to Kananatu’s and Du’s books, Khorakiwala’s attention to the taken for granted led to insightful analysis about law.
Like Du, Khorakiwala offers a dimmer view on legal power. To a great extent, the episodes of resistance against courthouse designs or imageries, in protest of British colonialism, lack practical impact. Today, the three high court buildings still stand, and many of the objects and activities within those buildings persist in ways associated with their British legacy. In fact, I found it most ironic that the people who opposed statues and stones for reminding them of colonial power were the same people who subscribed to a legal system pervaded with colonial influence. This is a system where it remains prestigious to be trained in the United Kingdom and to speak with a British accent, and a system which requires its officers of the court to dress in attire based on colonial standards. Most of all, everyone who works or worked at the Calcutta, Bombay, and Madras courthouses, by virtue of serving in that courthouse’s institution, inevitably uses, takes advantage of, benefits from, or accepts the laws, rules and regulations, and physical spaces that originated in colonial form.
2. Law and society’s coherence and the fascination of law
At the Faculty of Law, National University of Singapore, I am responsible for convening the doctoral students’ workshop. Every week, one law Ph.D. student will present parts of their dissertation for feedback. Virtually every student who researches jurisprudence or legal doctrine wants to improve law on the books, whether it is corporate governance, banking, consumer protection, environmental regulation, international human rights, or criminal law. Of course, they are all well intentioned. However, they usually proceed on the basis that they know how the law works or will work, and they believe they know what the problem is. And so they believe they can prescribe laws, policies, and answers to address the issues they have identified.
Every time I read a draft thesis chapter like that, I cannot help but recall legal anthropologist Pooja Parmar’s interactions with law students about her research on the dispute over a Coca-Cola bottling facility on Adivasi lands in India (2015). Like any law and society scholar worth their salt, she conducted in-depth interviews, participant observation, and textual analysis with the aim of finding out how different parties experienced the dispute and how they made their claims. When she reflected on her fieldwork experience, she recounted a conversation with three law students as the most troubling and inspiring: “[The students] were confident that “we” know what the dispute is about. In order to ensure justice for those who have suffered, we need to look at “the law,” and how it can be made better. That is undoubtedly a very important exercise. I failed, however, to convince them of the importance of a prior question that I was pursuing: Do we know what the dispute is about?” (Parmar, Reference Parmar2015, p. 22)
I love sharing Parmar’s anecdote because it strikes a chord with many of my experiences with law students to whom I had presented my own ethnographic research. Almost all these law students presumed the existence and attributes of certain social phenomena; in Parmar’s case, they were a dispute, its contents, and its significance. These students, as well as many lawyers and legal scholars I have encountered, are confident and eager to pinpoint and propose solutions to fix problems as they perceived them. By comparison, law and society scholars usually begin with a humbler aim of trying to understand a social phenomenon that fascinated them. Generally, they do not necessarily have an answer for a problematic phenomenon, even after completing their research. Instead, they produce research that reminds us it is fruitful—in fact, vital—to investigate practices, beliefs, and objects that we have perhaps taken for granted.
Although the three books featured in this speech examine different issues and Asian societies, they share this commonality. Each of the three authors examined a social phenomenon that was laden with assumptions in a particular socio-political context and made it the point of departure for their research, verifying or explaining it with rich empirical data. Crucially, their data and analyses enhance our understanding of how law helped to constitute the social fact in question and thus offer insights into legal power, for example, how interactions with law shaped identity and power dynamics. Their studies, to continue quoting from Parmar’s fieldwork reflections, “show the importance of paying attention to how we know, and in what ways in failing to doubt our knowledge we limit our abilities to listen and respond. These insights are essential for understanding both the potential and limits of law and formal legal processes” (Parmar, Reference Parmar2015, p. 22).
Found across otherwise diverse studies, the similarities of investigating the taken for granted and of uncovering the workings of law through empirical investigations give coherence to the field of Asian law and society and law and society as a discipline writ large. But, wait, you might wonder: the three books share the above features, but they arrived at rather divergent conclusions about law. Can we really say that differences make us similar and bring us together? Yes.
First, let me comment on the point about divergent findings before going on to explain why I believe that the differences are a uniting force. The heterogeneous findings could be due to different approaches, foci, and sources of data. Kananatu’s choice of subject matter, Malaysian Indians and their politically docile image, pushed her towards understanding law in action by interviewing lawyers and activists, and collecting archival data on their mobilisation activities, as well as judgements and legislation. Du’s interest in state regulation of parent–child relations of previous political regimes led her to mine historical archives of police records, court cases, and laws. Khorakiwala’s passion for judicial iconography inspired her to fly all the way to Belgium to track down visual data as uncommon as architectural blueprints and recruit interviewees as unexpected as the old tailor who sewed the robes for lawyers and court officers. The same goes for other law and society studies, whose researchers employed a variety of empirical methods to learn about social phenomena that captured their intellectual imagination. Recent Asian law and society articles include observing the video recordings of interactions between judges and defendants in routine Chinese criminal trials (Li, Reference Li2023); conducting ethnography on Afghanistan’s central money exchange bazaar to map out the interface between state law and private ordering (Choudhury, Reference Choudhury2022); and interviewing Sri Lankan apparel factory workers to understand how they fight against wage theft and poor working conditions (Kumarage, Reference Kumarage2024).
Another factor shaping heterogeneous findings about law is the varying degrees of access to data. Even if some projects share the same epistemological understandings and approaches, they could still generate different findings. This is because the data and thus analysis could be further shaped by the willingness and availability of interviewees and interlocutors to participate in the study; the researcher’s ability to get permission to enter and interact in certain spaces; or the availability of archives and the degree of completeness of their holdings. A law and society scholar studying the death penalty in China (e.g. Smith, Reference Smith2020), for instance, cannot expect to rely on the same sort of data or the same type of access to data another scholar could have in American jurisdictions; a researcher keen to examine borderland migration in Southeast Asia (e.g. Reddy, Reference Reddy2015) would grapple with geopolitical considerations and physical geographies quite distinctive from their peers who specialise in European countries. These realities challenge the Asian law and society researcher, and any other law and society scholar to be flexible, adaptive, and creative with their fieldwork.
In his Law and Society Association Presidential Speech in 1998, David Engel, who is also a law and society expert on Thailand, defended epistemological contradictions as essential to our efforts to understand the worlds we seek to describe. In Engel’s case, he was referring to the differences in the connections between researchers and their subjects. He said, “Our field is enriched by the growing variety of forms and approaches, for each new approach at one level signals new possibilities at other levels, and each insight obtained through one mode of investigation suggests new issues to pursue using other modes of investigation. The differences in our connections to our research subjects are the differences that connect us to another, and they ensure the vitality of the field of law and society” (Engel, Reference Engel1999, pp. 14–15).
Like Engel, I want to celebrate our differences. I also want to go further to stress that the differences in the findings on law are essential to our discipline and a significant feature of Asian law and society research. We not only cohere as law and society scholars because of core similarities that cut across our diversity in geographical focus, methods, and orientations, namely, the study of law and legal institutions as social phenomena, and the empirical curiosity about ideas, practices, beliefs, and objects that are often taken for granted in everyday life, but we are also united by our diversity, in particular, by our dissimilar findings about law, some of which are positive, some negative, and others sobering. Together, these messy findings expose the many profiles of law. Collectively, the inconsistencies and contradictions across and within studies offer a range of explanations of how and why law and its institutions and actors, when put into action, diverge from their intended purposes and designs. Together, they demonstrate the fascination of law. Now, to be clear, I do not mean our fascination with law, though that this probably also true for many of us. Rather, I mean the fascinating nature of law itself.
The plural profiles of law remind us that we do not yet know the intricacies of law in all the possible permutations of social relations and political settings. Therefore, we do not yet fully know in what ways law can help to improve lives or worsen them, or have no impact at all. If we have only studies that tell us about the virtues of legal power—for example, how they can change the world or make things better—we might forget or ignore that law has failed countless times to achieve well-intentioned goals. Conversely, if we have only studies that critique law, then we might be too fast to dismiss the moments of victories or overlook the quiet, subtler forms of resistance. We might neglect the possibilities that law does, from time to time, empower the weak or marginalised and, in their hands, become a formidable weapon that protects and advances their interests.Footnote 12 The bottom line is that we need all kinds of law and society studies, and we need to continue to have studies that produce inconsistent findings about law. These would and should include those that reveal the power and limitations of law, that explain how legal processes and systems work in practice, and show us how legal professionals, people in power, and everyday people interact with law and with one another.
I hope that the three monographs that I introduced in this article will inspire and instil confidence in more scholars to conduct research on Asian societies and populations and embrace the distinctiveness of their projects, while at the same time help them feel at home in ALSA and other law and society circles. Taken together, the three books illustrate the multifaceted sides of law through their empirical investigations into familiar social phenomena. They enhance Asian law and society scholarship and the discipline of law and society generally with their insights into law and human experiences with it. We need an abundance of such studies. I hope that, over time, as a greater number of us conduct research on Asian societies, approach our fieldwork with diverse epistemologies and with creativity, and produce broad-ranging evaluations of law, legal institutions, and legal actors, we can speak even more boldly and astutely to our peers across the discipline that we call home.
Thank you for your attention!
Acknowledgements
I would like to express my gratitude to ALSA’s 2022–2023 Board of Trustees, officers, and members for their support of my presidency, and David Engel and Sida Liu for reading and commenting on the drafts of this speech. Additional thanks to Sida for suggesting the main title, a phrase inspired by Oliver Wendell Holmes, Jr.’s reference, “our Mistress, the Law,” in his address at the Suffolk Bar Association Dinner on 5 February 1885. Please direct correspondence to [email protected].
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