The Madras High Court located in Chennai, India, was established in 1862 when India was under colonial rule. It continues to exist in post-independence India after merging into the Indian legal system. In this study, I argue that the architecture and judicial iconography of the Madras High Court building reflects a recurring historical tension between Indian and British concepts of justice. This is continually reflected in the semiotics of the legal space of this high court which in turn influences the legal consciousness of the court personnel who utilize this space. This architecture and iconography of the Madras High Court constitutes, preserves, and reinforces the ambivalent legal consciousness of those who created, occupy, and visit this space. The contemporary legal consciousness of the court personnel is thus seen to have deep historical roots.

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.

Legal transplants are broadly recognized as one of the main mechanisms by which donor states influence the legal development of recipient states. The experience of China, however, challenges convention. While, in recent years, China has been one of the largest capital-exporting countries in the world and has mobilized law to protect its investment in high-risk recipient states, legal transplants have, to date, not played a major role in China’s approach to law and development. This article examines this puzzle through the case of China’s participation in formulating Vietnam’s 2018 SEZ Bill. In doing so, this article sets forth a number of hypotheses as to why Chinese law has thus far not assumed the form of legal transplant. The example of the SEZ Bill demonstrates how Chinese legal transplants depend as much on the “pull” of recipient states as they do on the “push” of the donor. The case-study of the SEZ Bill raises important questions not only for Chinese law and development, but also, more generally, for the viability of “second-order” legal transplants: those from an Asian donor to an Asian recipient.

In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a counter-majoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.

Since May 2009, public participation in the criminal justice system, known as saiban-in seido (trial system by lay judges), has been implemented in Japan. The purpose of this paper is to analyze the law-making process of the saiban-in system and present an evaluation of the system from the perspective of deliberative democracy. This paper concludes that, contrary to criticism from those who want to introduce a purer form of jury trial dominated by lay jurors, the current saiban-in system, which mixes three professional judges with six saiban-ins, should be viewed positively from the perspective of deliberative democracy.

Hong Kong’s history of compulsory schooling (as opposed to education) commenced under colonial rule and has been maintained by the local government following the 1997 Handover. Beyond the exception of “reasonable cause,” homeschooling, or elective home education, is in principle prohibited under the laws of Hong Kong. However, there is evidence of a growing homeschooling community in Hong Kong that relies on loopholes in the law and an apparent de facto government policy to operate. This article sets out the background, legal framework, and homeschooling practice in Hong Kong. It criticizes the current situation from the perspectives of legal certainty and children’s rights. The author suggests that the government should take action to devise clear laws and public policy in relation to elective home education.

This article provides an analytical account of how politics and law in China are organically integrated in the institutional architecture of courts as designed by the Chinese Communist Party (“the Party”). This design allows the Party to retain its supreme authority in the interpretation, application, and enforcement of the law through its institutional control over courts. At the same time, the Party can, under this design, also afford to grant an autonomous sphere where courts can perform their adjudicative functions with minimal interference from the Party, as long as the Party is assured of full authority to determine the scope of the “autonomous-zone,” to impose rules on it, and to revoke it when necessary. Consequently, courts assume a double character: a pliant political agent on the one hand and a legal institution of its own agency on the other.

This article examines how Thai courts of the first instance deal with run-of-the-mill criminal cases. How do judges deal with criminal trials of a rather routine nature, often involving defendants from ethnic minorities and reflecting the particular conditions in the provinces concerned? Drawing on participant observation and interview research conducted mainly in two provinces in different regions of the country, the article examines the challenges faced by judges and court officials in dealing with heavy caseloads in a highly bureaucratized system where acquittal rates are extremely low. How far do such cases shed light on how judging is carried out in the majority of Thai courts? What kind of challenges do Thai judges face in adjudicating minor but often messy cases in order to fulfil societal expectations in line with their own understandings of justice?

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.

Triggered by the sense of crisis, the Thai state and Thai Buddhism are renewing their traditional relationship kindled by the monarch-led reform over a century ago. Thai Buddhism is reviving its lost aura and hegemony while the political conservatives are looking for legitimacy and collective identity in a time of democratic regression. The result is the rise of the Buddhist-nationalistic movement, Buddhist-as-Thainess notion. The phenomenon has grown more mainstream in recent years. These extreme Buddhists pressure the government to adopt a new constitutional relationship that brings the two entities closer to a full establishment. They also target both religious minorities as well as non-mainstream Buddhists. The revival of Buddhist nationalism foretells rising tension as well as diminishing religious freedom.

“Developed” states tend to reflect their own development experience in their dealings with “less developed” states, encouraging replication of their own solutions and processes. This is “recursive” law and development (LAD). This article examines the role of Singapore in LAD processes in the ASEAN region. It finds that Singapore’s LAD efforts are recursive and focused on rule-of-law and governance training, including especially anti-corruption methods. These are conducted not via a special agency, but via co-operation that is multilevel, multidimensional, and untrumpeted. LAD can learn lessons from this approach.

This article reflects upon the continuing historical denialism concerning the Korean “comfort women” forced into sexual slavery by the Japanese military during World War II. We argue that the refusal of the Japanese government and others to squarely confront this wrong is made possible through the exploitation of a différend in Jean-François Lyotard’s sense of the term. The différend arises from a complex set of social, cultural, and legal sources, including patriarchal, colonial, and nationalistic constructions of the wrong and its victims. We seek to tentatively expose the nature of the différend by identifying these factors. We then sketch the beginnings of a possible response, drawing on Luce Irigaray’s strategy of emphasizing sexual difference and separation to pave the way for reciprocality between the sexes. The testimonies of the “comfort women” must be allowed to speak for themselves before a response can emerge based in other discourses.

The adjudication of religious personal laws of minority communities in India has been a domain of contestation between competing claims of cultural autonomy, gender justice, and individual rights. The Supreme Court of India has time and again been confronted with the conflict between the secular law and legislation that protects group rights of minorities. While the existing literature has taken note of the attempts by the Indian state and the judiciary at legal-pluralist interventions to secure gender justice within the framework of personal laws based on religion, there has not been a sustained analysis of the discursive construction of constitutional law in dynamic interaction with the secular law and tenets of religion. This paper attempts to address this important gap in the scholarship using a discourse analysis of the judgments of the Supreme Court of India from 1985 until 2015 pertaining to post-divorce maintenance for Muslim women. I examine how the “rights” of Muslim women are framed in a realm of dynamic interaction between legislation premised on community identity, notions of constitutionalism, and personal laws based on religion to argue that the state adopts an interventionist role in a legal-pluralist paradigm; it further uses the specificity of community identity to foreground a vision of social justice.

Literature on neighbourhood disputes has explored legal consciousness by focusing on identity, personal relationships, and community norms. However, it still remains unclear how affective factors and one’s sense of identity can influence the social practice of law and how the recursive relationship between law, emotion, and identity can influence life in particular communities. This study explores the dynamics of identity/alterity construction, and the role of emotion in shaping these dynamics during a neighbourhood conflict in Taipei, Taiwan. This dispute highlights how ordinary Taiwanese people’s legal consciousness is constituted through a culturally embedded sense of emotion (qíng) and belonging (zìjǐrén). Analysis of “The Noodle Shop Case” advances our understanding of the social presence and authority of law and the ways in which the role of law changes according to how individuals feel as they seek both mutual recognition and justice.

The mediation of disputes by community leaders in China has deep historical roots and has long been among the responsibilities of neighbourhoods and villages. While most research on the topic has looked at cities, mediation is in fact more common in the countryside. This paper draws on a survey conducted in 2002 (n=2,164) and repeated in 2010 (n=2,659), covering 23 villages in five provinces, which provides detailed data on conflict from disputants themselves. We examine the evolution of this much-debated mode of conflict resolution and assess its prevalence and effectiveness relative to alternatives. We find that, even as overall rates of disputing declined, seeking intervention by village authorities remained as common a response to disputes in 2010 as it was eight years prior. The paper thus sheds light on a primary means through which the party-state has tried to maintain stability, tamp down strife, and assert its primacy at the community level.

The emphasis on practical training in legal education has come to the fore in many countries. It is little different in South Korea, where curricula for legal education now include a range of courses categorized as “practical training.” The author questions whether the subjects taught under the title “practical training” effectively prepare students for practice in the real world. Education in legal theory and practical training are connected, which makes the categorization of courses specifically aimed at practical training inappropriate. More emphasis should be given to instilling practice awareness throughout all of legal education. It is argued that, in order to develop professional skills, incorporating practice awareness throughout the entire legal education curricula is important—that is, not limiting such skills to practical training courses, but integrating them throughout the teaching of legal theory.

The strong growth of Islamic capital markets internationally has seen the corresponding development of regulatory frameworks incorporating sharia law. Malaysia has been at the forefront of Islamic capital market regulatory development, merging corporate law drawn from its common-law heritage with sharia principles. This article examines the interaction of law with political economy and sociocultural influences in Malaysia which has underpinned the evolution of hybrid Islamic capital market regulation. It analyses the evolution of Malaysian Islamic capital market regulation against theories of legal origin and legal evolution. The analysis suggests that the sharia and common-law components of Islamic capital market regulation have evolved along two separate and seemingly inconsistent trajectories. While the secular corporate law component continues to evolve in tandem with its common-law tradition, development of the sharia component represents a distinct shift away from common-law traditions.

This article explores the creation, circulation, and regulation of informal trade credit or “ograyi” in Afghanistan. The practice of ograyi allows businesses to access short-term credit, from either their suppliers or third parties, to acquire specified goods. This paper provides an account of the non-legal practices that regulate ograyi transactions. Ograyi vitally depends on the development of trust between parties. Clientelism helps to maintain stable relationships that can offset market unpredictability. Widespread market norms and practices establish the general behaviour of participants. Parties also renegotiate the terms of the contract if circumstances make it impossible for the creditor to repay the loan in the agreed timeframe. Furthermore, bank credit remains largely unavailable or unappealing to many businesses, and the legal system provides limited recourse in the case of contractual breach. Thus, the non-legal practices regulating ograyi serve as a substitute for legal coercion.

This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.