Since the first Asian Law and Society Conference (ALSA) was held at the National University of Singapore (NUS) in 2016, a number of special sessions have been organized to focus on the deconstruction of the Westphalian transnational order based on the concept of the “nation-state.”1 This dominant hegemony was predicated on the congruence of the geo-territorial boundaries of both the state and the nation, as well as the “assumed integration” of state-defined “citizenship” and another distinctly layered “membership” based on culture, ethnic, religious, and indigenous affiliations. The “nation-state” ideology has thus masked a history of tensions and conflicts, often manifested in the form of oppression, persecution, and genocide directed at the nation and its peoples by the state and its predatory institutions. Our studies have shown that such conflicts between the nation and the state have been observed in multiple regions in Asia, including Kashmir in India; Moro and Islamic communities of Mindanao in the Philippines; Karen, Kachin, and other autonomous nations in Myanmar; West Papua, Aceh, Kalimantan, South Moluccas, Minahasa, and Riau in Indonesia; Kurds in multiple state systems of Iraq, Syria, Turkey, and Iran; and Palestine in Israel, among many other culturally autonomous nucleated communities in Asia and across the world.2 The phrase “the nation and the state” was specifically chosen to distinguish and highlight the unique conflictual histories of two geo-political entities and to provide a fundamentally differing interpretation of history, geography, the role of law, and global affairs from the perspectives of nation peoples, rather than from that of the state or international organizations, as traditional analyses do. The Westphalian “nation-state” hegemony led to the inviolability of the state’s sovereign control over the nation and peoples within a state-delimited territory. The state then began to engage in another predatory project: to strengthen and extend its international influence over other states and, thus, the nations within these states, by adopting new constitutional provisions to offer cross-border “citizenship” to diasporic “ethnic-nationals” and descendants of “ex-migrants” who now inhabit foreign states. The nations have similarly capitalized on constitutional activism by erecting their own Constitutions to explore collaboration with other nations, as well as diasporic populations of their own, in order to carve out a path toward the nations’ independence within, and even beyond, the respective state systems. The “constitutional” activism sought by the state and the nation has become an important political vehicle with which to engage in possible collaboration with diasporic “ethno-nationals” and ex-migrant communities, in order to further assert political influence and strengthen trans-border politics of the state and the nation. Three articles included in this issue investigate such constitutional activism of cross-border politics and transnational collaborations in Asia, the Americas, Europe, and other regions across the globe.

In the interstices of international law, quite a number of states have developed strategies to reach out to and engage with their diasporic populations or ethnonational kin outside of their borders who are not their citizens but citizens of the state in which they habitually reside. Some states even provide for that kind of policy in their Constitutions. Some states grant preferential treatment and special rights to “kin-foreigners,” thereby creating “ethnizens.” This article canvasses provisions in national Constitutions in Europe and Asia that provide grounds for engaging with the members of the nation outside of the state, analyzes the modes of engagement—mainly ethnizenship practices and various ways to strengthen links with diasporas—and examines the rules of engagement. It shows that the international norm has not provided effective guidelines regarding the strategies of transnational nation-building beyond the personal boundaries of the state and concludes that the decoupling the nation from the state registered by the transnational nationhood strategies falls short of constituting a departure from the logic of the Westphalian nation-state.

This article rethinks the hegemonic “sex-work” discourses—popular sex-work discourse and radical-feminist discourse—that associate Japanese night work with prostitution and consider young women workers in this industry as victims. These discourses reinforce sex-work oppression–empowerment paradigms, which limit workers’ experiences to either oppressive/empowering, good/bad, and positive/negative. This research draws on transnational feminism and a polymorphous approach to the complex nature of sex work. In doing so, this article addresses three aspects of Japanese night work, including young Japanese women’s motivation to go into night work, their conceptualization of work they engage in, and shakai-keiken (social experience) that they gain out of doing night work. This article encourages readers to step away from dominant Western discourses and look closely at the nuanced nature of Japanese night work in its own context.

This is an overview article regarding artificial intelligence (AI) and its potential normative implications. Technology has always had inherent normative consequences not least due to AI and the use of algorithms. There is a crucial difference between algorithms in a technical sense and from a social-science perspective. It is a question of different orders of normativity—the first related to the algorithm as a technical instruction and the second to the consequences springing from the first order. I call these last-mentioned norms algo norms. These are embedded in the technology and determined by the design of the AI. The outcome is an empirical question. AI and algo norms are moving targets, which call for a novel scientific approach that relates to advanced practice. Law actualizes primarily for preventive reasons in relation to negative aspects of the new technology. No major regulatory scheme for AI exists. In the article, I point out some areas that raise the need for legal regulation. Finally, I comment on three main challenges for the digital development in relation to AI: (1) the energy costs; (2) the singularity point; and (3) the governance problems.

Commercial sex has been a complex and controversial issue in Taiwan. It was banned several times and finally partially legalized in law when the Congress finally amended Article 80 of the Social Order Maintenance Law and authorized local governments to establish red-light districts. Unfortunately, in reality, until now, no local government has established a red-light district. Therefore, all commercial sex is still illegal in Taiwan. By reviewing this issue from gender, culture, and legal perspectives, this paper discusses the regulation of commercial sex in Taiwan in three parts. In the first part, this paper provides a historical view of the development of commercial sex and how the government regulated it in different periods. In the second part, this paper introduces the debate and various perspectives of feminist legal theories on this issue. Finally, compared with the regulation models of Japan and Singapore, this paper proposes an empowerment approach in response to the current Social Order Maintenance Law. Focusing on sex workers’ autonomy and subjectivity, the new approach hopes to balance the interests between the rights of sex workers and the needs of social order and public health.

This article uses a socio-legal perspective to analyze the use of ethics guidelines as a governance tool in the development and use of artificial intelligence (AI). This has become a central policy area in several large jurisdictions, including China and Japan, as well as the EU, focused on here. Particular emphasis in this article is placed on the Ethics Guidelines for Trustworthy AI published by the EU Commission’s High-Level Expert Group on Artificial Intelligence in April 2019, as well as the White Paper on AI, published by the EU Commission in February 2020. The guidelines are reflected against partially overlapping and already-existing legislation as well as the ephemeral concept construct surrounding AI as such. The article concludes by pointing to (1) the challenges of a temporal discrepancy between technological and legal change, (2) the need for moving from principle to process in the governance of AI, and (3) the multidisciplinary needs in the study of contemporary applications of data-dependent AI.

Historical tensions and conflicts have existed between the nation and the state across the globe for centuries. These antithetical geo-political entities have also erected Constitutions of their own to assert their sovereignty and independence. The paper then explores the constitutional activism by the nation to attain its sovereignty and the right to self-determination from the state supervision. The paper specifically interrogates recent efforts by the Nation of Lakota in North America, and its constitutional activism and the attempts to secede from the US jurisdiction in order to declare the nation’s independence. The paper provides the critical investigation of an array of both domestic and international laws used by the Nation of Lakota in order to complete the withdrawal of its political ties and legal obligation from the US territory. The paper concludes by discussing the ongoing constitutional activism by multiple nations in Asia and other regions of the world in an effort to attain their sovereignty and independence within, and even beyond, the respective state systems.

The relationship between state and absent citizens is becoming more important since the globalization of the 1990s. Countries usually try to increase the number of their citizens through two methods. The first is by increasing the number of nationals living abroad using a dual-nationality system. The second is by expanding national power through dual culturalism. These methods increase the international capacity of the home state through the expansion of the de facto state territory from the perspective of network-power theory. Latin American countries have been relatively passive in this diaspora-engagement policy, but recently they have begun to show an active attitude by revising their migration policy—amendments to the Constitution and migration law, dual nationality, dual culturalism, voting rights abroad, and upgrading the status of diaspora agencies, etc. However, it is still unclear how the multinational and multi-ethnic Latin American countries conceptualize diaspora. This paper analyzes the diaspora-engagement policy of Latin American countries from the standpoint of network-power theory and tries to find out what its theoretical framework is. This paper concludes that the theorization work on diaspora should continue to track and analyze these policy changes, since it is difficult to understand what the diaspora concept is and what policy objectives the state is pursuing under the current diaspora-engagement policy.

The paths to digital justice focus on the challenges of contemporary digital societies in reaching automated decision-making processes through software, algorithms, and information technology without loss of its human quality and the guarantees of due process. In this context, this article reflects on the possibilities of establishing judicial robots in substitution for human judges, by examining whether artificial intelligence and algorithms may support judicial decision-making independently and without human supervision. The point of departure for this analysis comes from the experience of criminal justice systems with software for judgment of the possibility of recidivism of criminal defendants. Algorithmic decision-making may improve the public good in support of judicial decision-making, but the analysis of current technology and our standards for due process of law recommends caution on the conclusion that robots may replace human judges and satisfy our expectations for explainability and fairness in adjudication.

There is no specific law in Nepal that directly criminalizes sex work. However, many sex workers have experienced arbitrary detention by law-enforcement authorities. The Human Trafficking and Transportation (Control) Act, 2007 (HTTCA) criminalizes pimps and clients, but not sex workers directly. However, the Act was overinclusive and often criminalized women engaged in voluntary sex work. The new Criminal (Code) Act 2017 criminalizes advertising and providing facilities for sex work in the section concerning crimes against the public good. These laws are used to prosecute sex workers. Two identity-based associations (IBAs) emphasize the importance of decriminalization, but do not support the legalization of sex work. A licensing system, if introduced under legalization, may exclude the most vulnerable sex workers, including housewives, migrants, and sexual minorities, who are secretly engaged in the business. I conclude that ongoing advocacy of IBAs should seek to provide safe working environments for sex workers in Nepal.

This article documents the life-cycle of the National Green Tribunal of India (NGT). The NGT is officially described as a “specialised body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues”—a forum offering greater plurality for environmental justice. Its international and national recognition promotes it as an exemplar for developing nations. The change management theory underpinning the paper is drawn from the work of Kurt Lewin and Edgar Schein, thereby allowing the analysis of competing internal and external forces affecting the NGT. There is a transmigration of theory and its application from one discipline to another social science: business psychology and management to law. The article identifies and addresses the crisis, and analyses the reasons and actions of the principal actors or forces interested in supporting the NGT and, on the other hand, those who are concerned, challenged, and affected by its growth, activities, and popularity.

Artificial intelligence (AI) and law is an AI research area that has a history spanning more than 50 years. In the early stages, several legal-expert systems were developed. Legal-expert systems are tools designed to realize fair judgments in court. In addition to this research, as information and communication technologies and AI technologies have progressed, AI and law has broadened its view from legal-expert systems to legal analytics and, recently, a lot of machine-learning and text-processing techniques have been employed to analyze legal information. The research trends are the same in Japan as well and not only people involved with legal-expert systems, but also those involved with natural language processing as well as lawyers have become interested in AI and law. This report introduces the history of and the research activities on applying AI to the legal domain in Japan.

Fintech risks have a special type of structure and formation mechanism; regular updates and a complete financial legal system are needed to implement an effective legal governance. China’s fintech development is leading the world, but its lagging legal development does not match its rank in the field. Due to the difficult co-ordination of regulatory goals, unclear allocation of regulatory power, insufficient risk identification, and incomplete regulation tools, China’s legal governance on fintech risks has been swinging between the paths of suppressive, indulging, and adaptive regulation. It is urgently necessary to follow the fintech-risk law and fully tap into the local resources and explore the intervening path with more proactivity, foresight, and refined characteristics, through specification of the legal status and governing power of the intervening entity, the institutional basis and legal effect of interventional means, and the governing key and constitutional rules of intervening objects, to establish a legal-governance system on fintech risks that is innovation-friendly, regulatorily effective, and safe at the bottom line, fully covering the whole process.

As the idiom goes, birds of a feather flock together. This ancient proverb is frequently used to portray the phenomenon of people associating with those with have similar characteristics and tastes. However, in the name of weiquan lawyers, myriad lawyers flock together with different beliefs and diverse values. Within this pool of lawyers, in addition to those lawyers who are driven by public interest, some lawyers who have eagerly labelled themselves as weiquan lawyers are profit-oriented in nature. This paper aims to provide a new typology to present a better understanding of the role of weiquan lawyers, by jointly taking into consideration the lawyers’ motivations and adaptive strategies. In this regard, weiquan lawyers in China can be categorized into four ideal types: routine practitioners, rational activists, progressive reformers, and cynical criticizers.

This article provides critical and analytical views on legal regulation to achieve a balance between FinTech innovation, risk prevention, and financial stability, by focusing on the trend of FinTech firms entering the financial-services industry and the associated regulatory and legal challenges that are already arising in China. It adopts a balanced approach as a theoretical-analysis perspective, weighing various considerations, and proposes the policy option of FinTech regulation under the principle of interest balance. The analysis aims to contribute new insights to an ongoing debate in China on the relationship between legal and regulatory reform, FinTech innovation, and risk prevention. This article argues that legal challenges, rather than technical problems, remain the key obstacles to effective FinTech regulation. Our proposed hypothesis seeks to explain how a legal regulation achieves balancing the competing interests between FinTech innovation, risk prevention, and financial stability in the booming of China’s FinTech. Finally, this article proposes the implementation of goal-oriented responsive regulation by improving the legal framework of FinTech regulatory regimes through policy option.

The newly established judicial-transparency platforms, like China Judgements Online, have provided access to a new resource—judicial big data—making it possible to conduct empirical, big-data-based legal research. However, as is often the case with new products, these platforms—China Judgements Online, in particular—pose a few problems for big-data-based legal research: insufficient academic depth; immature technical methods; and lack of innovation due to flawed data, strict technical thresholds, and lack of theoretical ambition and ability. In the future, big-data-based legal research should make use of current data resources, continue to promote statistical science and computer science in research, and apply small-data research methods, and in the meanwhile pay attention to the combination of data and theory.

The singularity of artificial intelligence (AI), which transcends human intelligence to play the role of God, is imminent. In this context, the Chinese judicial system has gained some latecomer advantage, with the help of information technology, the Internet, big data, cloud computing, and AI to improve the efficiency and transparency of case handling. The trial process has undergone extensive and profound qualitative mutations. This represents a challenge to the institutional arrangements of the modern rule of law. At this stage, we should adopt a cautious and prudent attitude towards the design and application of legal-expert systems as well as machine learning. Especially from the aspect of computer sentencing, it is even more necessary to avoid a rush for quick results, and there is no need to completely exclude the judge’s discretion and free evaluation of the evidence through inner conviction. The finality of the judicial power is destined to choose a correct final solution through a debate on the survival of the fittest mechanism. In the face of such a modern rule-of-law system, big data, cloud computing, information technology, and AI are just auxiliary means to achieve legal justice. It is impossible to put the cart before the horses. This is a basic principle that we should always bear in mind.

This article highlights reliance on lay participation as a mechanism for solving perceived problems in Japanese criminal justice by examining three reforms aimed at increasing lay participation in Japanese criminal justice: the mandatory prosecution power given to Prosecution Review Commissions, the saiban’in seido (lay-judge system), and Penal Institution Visiting Committees. The article argues that lay participation plays an important role in legitimizing aspects of the current system. Despite the Nagoya Prison Scandal in 2002–03, Japan’s extraordinary achievements in order inside prisons have been maintained and citizens are comforted that the system has oversight by Visiting Committees. Although PRCs and saiban’in seido represent a more open approach to eligibility and selection than Visiting Committees, they too help to legitimize existing structures. The article concludes by considering challenges to the continued reliance on lay participation in Japan including reform fatigue, the demographic crisis, the impact of geography, and technological developments.