This special issue results from a conference called ‘The State in Asia’, which was held in Leiden from 17-19 December 2012. The overall theme of the conference was the development of modern states in Asia, conceptualised as ‘ongoing projects informed by a quest for cultural, religious and political identities that are new and modern, yet simultaneously rooted in indigenous culture and tradition’. The formation and the functioning of Asia's systems of law and governance reflect strong developmental ambitions as well as deep heterogeneity and insecurity. In the East Asian context Japan, Singapore, and South Korea now serve as models of successful nation-states that other states in the region aspire to emulate, but in most countries in the region endemic corruption and factionalism make rule anything but stable and predictable.

The panel on ‘Developing the Rule of Law’ looked at the attempts to realise different aspects or elements of the rule of law in East Asia. In this effort East Asian states have borrowed paradigms, ideas and laws from elsewhere which may take on quite different meanings in their new surroundings. Regional models, have become more important than they were in the past, but ideas are adopted from all over the world. The rise of ‘alternative’ global and regional legal regimes has reinforced this process and led to a situation where states may choose to model their laws and legal institutions from a much broader range of examples than in the past.

The adoption of public accountability institutions has become a crucial aspect of rule of law projects worldwide. This article focuses on National Human Rights Institutions (NHRIs) in order to explore the process by which such legal models and ideas are adopted and borrowed from global actors, and the reliance on regional and sub-regional networks. Through case studies of Indonesia and Myanmar, it examines several possible meanings and sources of ‘Asian legal transplants’, particularly the role of regional networks as sources of legitimacy. It argues that the sub-regional NHRI network in Southeast Asia has evolved as an alternative site of legitimacy, and that the extent to which a NHRI in Southeast Asia may rely on it depends not only on the regime it operates under, but also on the relative position of the NHRI within the regional network.

Since Korea's democratization in the late 1980s there has been powerful momentum to reexamine the past authoritarian rule. This article aims to contribute to the growing literature in the rule of law in authoritarian regimes by discussing the judiciary of Korea during the so-called Yusin era (1972-1980). The courts in the 1970s have been placed at the center of controversy in the wake of transitional justice, as a number of judicial decisions were reopened and original verdicts overturned. Most notable were the cases involving the so-called Emergency Decrees which served as a major instrument for the regime to suppress political opposition. In December 2010 and March 2013, the Supreme Court of Korea and the Constitutional Court of Korea each ruled that the Emergency Decrees were unconstitutional and that the courts in the 1970s were wrong in declining to exercise their judicial review power. The evolving jurisprudence through the authoritarian and subsequently democratic periods has significant implications for the rule of law in modern Korea. Constitutional jurisprudence in the post-democratization years in particular brings to the fore the thorny issue of negotiating between mounting democratic aspirations and the exigency of legal stability.

Ideologies of judicial independence spread around the world and greatly affect court organisation and behaviour. How does this happen? Using the social science of the diffusion of innovations, this paper analyses how judicial independence doctrines spread to South Korea and Taiwan. The style of judicial independence that has mainly influenced Korea and Taiwan first developed in nineteenth-century Germany, from where it spread to Japan during the Meiji Reformation. It made judges bureaucratically accountable to a judiciary that was theoretically very independent from the executive branch, but left judges somewhat vulnerable to internal pressures. Korea and Taiwan received this theory and its related court organisational structures from Japan during colonisation and afterwards as they voluntarily updated their institutions to follow post-war Japanese changes. During years of authoritarian rule, these two countries' courts lost much of their independence. After democratisation, activists came to be disillusioned with the prevailing conception of judicial independence, and came under the influence of American ideas, under which judges would be selected to lifetime positions and not promoted bureaucratically. Agitating for reform, these activists attacked their judiciaries and advocated changes. The diffusion of the US vision of judicial independence ideology depended on the style of decision-making process, unity between judges and reformers outside the courts, and the difusion of ideas that occurred through the attainment of educations in America. Case studies of these similar countries can illustrate how notions of judicial independence are able to take root and develop in foreign nations seeking to modernise their court systems.

Presently, the Vietnamese State is facing two challenges. On the one hand, it has to integrate the country into the free world market and its corollary of religious freedom, in order to provide prosperity to its people and to preserve its legitimacy. On the other hand, it has to deal with the growing influence of religious forces, which it suspects to embody opposition against the absolute power it has exercised since its victory after 30 years of war. This article discusses the Vietnamese religious policy and the Vietnamese Communist Party's (VCP) approach to religion from a historical perspective. Is the VCP's policy the result of a principled approach by a strong state based on an immutable atheist ideology or the result of a pragmatic approach by a state looking for legitimacy and regional and global integration?

The article demonstrates how a difficult context of a long state of war followed by economic reconstruction have produced a specific Vietnamese approach to religious policy. It analyses the process led by the Vietnamese Communist State to develop legislation in religious matters based on communist models (Soviet, Chinese), on legacies of more ancient models such as the Chinese Confucian policy of religious control, on its own historical experiences, but also on more recent Western models. While following communist ‘anti-religion’ models, Vietnam's policy has nevertheless been equally dictated by considerations of internal and external legitimacy, as well as by economic reasons.

Theory on legal transplants makes a distinction between reception in law and reception in society. Both topics generate their own debates: the former are concerned with the question how the deeper lying legal epistemological structures shape the way in which transplanted rules and institutions acquire new meaning, the latter with how such rules work out on the social processes they ought to regulate. Usually the cases chosen for looking at the legal side are from well-developed legal systems, whereas those about developing countries focus on the social effectiveness. This ignores that many such systems in the world — including in Asia — are fragmented, unevenly developed, and unlikely to be capable of effectively appropriating and reconstructing new rules. The present article takes Indonesia as an example to show how structural problems of legal systems in countries adopting legal transplants may prevent legal rules and institutions from being accommodated into them. The article argues that this resistance can be explained only in part from factors such as governmental fragmentation, corruption, malfunctioning of the political system, or a legal plural colonial heritage, and that they are inherent in the state of legal scholarship and jurisprudence. In Indonesia these are incapable of producing the coherent legal theories required for effective reception of foreign law and legal institutions, a situation likely to be found in many countries. Given the structural factors underpinning this state of legal scholarship and jurisprudence, change will be very difficult to effect and the rule of law is an ideal that remains far away.

Since the 1990s the promotion of rule of law has been one of the main drivers in international legal development. Multilateral and bilateral donors have adopted it as a stand-alone objective and/or included it as a feature of their good governance, economic development, human rights or democracy agendas. While the definitional debates about rule of law abound, to some scholars the ‘degree of apparent international consensus on the value and importance of the rule of law is striking’. Indeed, the rule of law concept has been described as ‘analogous to the notion of the Good in the sense that everyone is for it, but have contrasting convictions about what it is'. Its perceived importance is certainly reflected in the millions of aid dollars spent every year on development activities aimed at establishing the rule of law in developing countries.

In this paper we draw on our work at the World Bank to provide practical guidance on how the Bank and other donors might operationalize the WDR 2011 so as to promote the emergence of legitimate and effective institutions to manage justice and security in fragile and conflict affected states (FCS). Our approach reflects three propositions about how justice and security institutions develop and how donors can engage. First, we understand that justice and security are not merely the remit of particular forms of institution, but rather represent core functions of all public authorities. Tis requires a broader view of the arenas and entry points through which development policy and programming may impact on justice and security. Second, engagements to support legitimate and effective justice and security institutions requires looking beyond the laws, procedures, skills and technologies that are the usual focus of development programs, to the processes of elite bargaining, collective struggle and normative change that shape institutions over time. Third, the impacts of development interventions on these processes extend far beyond the typically narrow remit of technical “capacity-building”. Understanding these implications — intended or not — requires a closer review of social and political change in particular contexts.

One of the chief contributions of this article (and there are many) is the way in which Porter, Isser and Berg situate current thinking and practice to peoples' grievances in fragile and conflict affected states (FCS) within a broader analytical framework. The authors describe how the current paradigm on justice, security, and development is based on a sector understanding of problems and potential solutions. This thinking is referred to as the ‘silo approach’: rule of law problems find their solution in ‘rule of law institutions’; security problems in security institutions (often as an overlapping or flanking initiative to rule of law), while development problems are solved through development institutions — that is, sometimes by rule of law and security agencies, but in most cases by public administrative agencies.

The authors argue thoughtfully that this silo approach does not match reality. In other words, and what it comes down to in FCS, is that justice, security, and development challenges do not seem to care much for the organograms of the UN, the World Bank, the EU or that of bilateral donors. Not do they follow neatly the budget cycles and staffing requirements of donors. Matters of justice, security, and development are instead cross-cutting, shifting quickly, and at the core functions of all public authorities.

The World Bank's approach to legal and judicial reform has undergone an interesting evolution in recent years as it has come to realise that there are no quick fixes. It has shifted from a formalistic top-down approach to a more comprehensive approach that focuses on governance and on the interests and aspirations of local communities. Thus, while originally the Bank focused mainly on making higher courts more efficient and on modernizing the commanding heights of state institutions, today Bank projects are more sensitive to issues relating to legal pluralism, access to justice, gender and legal empowerment.

This broader approach to reform is reflected in the Bank's successful Justice for the Poor (hereafter J4P) programme, which aims to ensure that reform projects take into account the perspective of the poor and marginalized within a framework that supports equitable and sustainable development. J4P projects focus on access to justice, natural resource governance and service delivery in countries such as Indonesia, Kenya, Nigeria, Sierra Leone, the Solomon Islands, South Africa, the Philippines and Vanuatu. The three authors of the paper under review, Doug Porter, Deborah Isser and Louis-Alexandre Berg (hereafter PI&B) work for the Bank's J4P programme. Thus, their views are based on detailed knowledge about fragile states and extensive academic reflection on the obstacles to reform. Their views are also important because if accepted, they would mark a significant new departure for the World Bank in the area of legal and judicial reform.

From the perspective of sub-Saharan Africa, I agree with the analysis of Porter, Isser and Berg that the standard approach to Justice and Security (J&S) in ‘fragile and conflict-affected states’ has been ineffective. An initial drive by peacekeepers to curtail the violence and restore law and order, followed by an intensive training and equipment programme for the state security forces so that they can take over, has proved both over-ambitious and under-ambitious: too ambitious to expect to reform in a short period, poorly managed and trained J&S institutions that have a history of corruption and abuse; under-ambitious in not looking beyond the state providers nor looking at the structural causes of injustice and insecurity. As regards the structural factors, I concur that the programmes have largely addressed ‘symptoms without engaging in the political, social and economic dynamics and processes that produce insecurity and injustice stresses, and that give rise to the institutions that either successfully manage or exacerbate these stresses.’ Yet I am not so sure that the ‘lack of attention to politics’ has been from donor unawareness, as the authors imply. There is certainly talk about the importance of politics (in its narrowest sense) amongst in-country donor agency personnel, but their ability to translate it into practice often fails for very prosaic reasons. Staff struggle to get access to over-busy national Ministers; they are directed by external design teams made up of practitioners who are more conversant with their own speciality than politics; the background of the J&S team officers within the civil service ensures a preference for clearly defined sectors and for J&S issues to sit in familiar J&S institutions; retention of donor institutional memory and even of ‘good ministerial contacts’ is affected by rapid donor staff turn-over and poorly maintained central recording systems; and implementation of J&S is weakened by outsourcing to external implementers who are locked into contracts where politics gets over-looked in the specified methodology and J&S outputs.