Research on Comparative Legal Traditions

Students of comparative law and politics distinguish between a variety of legal traditions or families, within which national-level systems clearly have more in common than they do with systems in other families. Most agree that there are at least four main families: Civil Law, Common Law, Socialist Law, and Religious Law (David & Brierley Reference David and Brierley1985). Civil Law refers to those systems in some sense founded upon the law of the Roman Empire (especially as codified in the Corpus Juris Civilis, published by the Emperor Justinian in 533 ce, or which later imported core elements of the French Code Napoléon or German law codes, especially as established in the late nineteenth century Bürgerliches Gezetzbuch, which itself was largely derived from the Napoleonic Code). Common Law encompasses all those systems tracing their origins to English Law as established on the basis of custom and common practice during the reign of King William I, after his conquest in 1066, even as multiple other systems of law (Canon, Norman, Roman, etc.) continued to hold sway over elements of British criminal investigation and civil dispute resolution throughout much of the Middle Ages (Strayer Reference Strayer1986: 423–4). Socialist Law refers to those systems implemented in countries that experienced socialist revolutions during the twentieth century and is often seen to take the law of the Soviet Union as its main basis. Finally, Religious Law is something of a catchall category, including all systems based explicitly on religious texts (e.g. Islamic Shari'a Law) as well as others more loosely based on customary ethical or philosophical principles (e.g. traditional legal orders in tribal societies, or what is discussed in Chapter 2 as adat in Indonesia).

Moving beyond such general characterizations, scholars probed the internal workings of systems within specific families, as well as across them. Martin Shapiro's seminal analysis of courts across what he called the Civil, Common, Chinese, and Islamic traditions (Shapiro Reference Shapiro1981) sets the standard for how to examine courts in different political, social, and historical contexts. A number of other scholars also developed typologies to categorize different aspects of legal systems, mainly to contrast Common and Civil Law (e.g. Damaska Reference Damaska1991). Within the Civil Law tradition, John Merryman and others have probed the distinctions between Roman, Canon, and Commercial law and explained how these earlier codes and frameworks formed the foundation of the fuller development of modern legal systems in Europe as they were later influenced by the French Revolution and the development of “legal science” (Merryman & Perez-Perdomo Reference Merryman and Pérez-Perdomo2007). As we shall see in Chapter 2, the common contours of the Civil Law tradition inform many aspects of both the Chinese and the Indonesian legal systems. Scholarship on the Socialist legal tradition is also important, however.

Students of Socialist Law emphasize that it is generally similar to the Civil Law tradition, but with the important addition of class struggle and revolution as organizing supreme principles, to the service of which all other rules and structures must conform. In practice, most analysis of Socialist Law has focused on legal development and politics in the Soviet Union (USSR). John Hazard set the tone early on, focusing on the early days of the USSR and the manner in which divergent strands of thinking had influenced the building of legal systems beyond the USSR, including in China (Hazard Reference Hazard1960, Reference Hazard1965). Later analyses continued to look at this early period (Burbank Reference Burbank1995), but also focused in on developments during the Stalin era (Solomon Reference Solomon1996), as well as the Khrushchev years and beyond (Berman Reference Berman1963; Barry, Ginsburgs & Maggs Reference 260Barry, Ginsburgs and Maggs1979; Solomon Reference Solomon1997), before the field began to shift away from emphasis on a Socialist legal tradition and toward a tighter focus on Russian law and politics, extending into the post-Soviet era (Hendley Reference Hendley1996, Reference Hendley1997, Reference Hendley2017; Gans-Morse Reference Gans-Morse2017). One may also question the degree to which anything like a coherent Socialist Law tradition ever existed, as well as whether it has continued to influence legal institutions or practice in China since the 1980s.

Research on Law, Development, Authoritarianism, and Democratization

A great deal of research has focused on questions of law and economic development. At root, these studies ask what legal protections or provisions are necessary to facilitate certain types of economic development (Ginsburg Reference Ginsburg2000), with most following Hayek (Reference Hayek1944, Reference Hayek1982) and generally agreeing on the need for an efficient and predictable legal system to reduce arbitrary state intervention, uncertainty, and transaction costs (Posner Reference Posner1981, Reference Posner2014). As championed by scholars in the New Institutionalist movement in economics and law, this perspective stresses that strong legal rules and consistent predictable enforcement are necessary for the development of efficient markets and higher growth (e.g. North Reference North1961, Reference North1990; Williamson Reference Williamson1985). Some others suggest, to the contrary, that there is little need for a well-functioning formal legal system to support economic growth (e.g. Kang Reference Kang2002), sometimes seeking to underscore a noneconomic – perhaps moralist or Kantian – theoretical basis for the development of private law (e.g. Weinrib Reference Weinrib2012a, Reference Weinrib2012b), sometimes citing the case of China as counterexample to earlier claims without necessarily challenging their philosophical underpinnings (e.g. Clarke Reference Clarke2003; Allen, Qian, & Qian Reference Allen, Qian and Qian2005).

In a related strain (e.g. Olson Reference Olson1993), studies of law and democratization, as well as transitional justice (e.g. Teitel Reference Teitel2000), have sought to explain how reforms to legal systems can help support the liberalization of political institutions or processes, alongside the protection or extension of political rights. Tom Ginsburg's 2003 study of judicial review in new democracies offered a framework for understanding how countries seeking to become democratic after long periods of authoritarianism could use powerful constitutional courts to check unbridled government authority (Ginsburg Reference Ginsburg2003). Much of his later work has also centered on explaining the role of constitutions and constitutional courts in promoting durable democratic change (e.g. Ginsburg, Elkins, & Melton Reference Ginsburg, Elkins and Melton2009; Ginsburg Reference Ginsburg, Heckman, Nelson and Cabatingan2010). Some others have looked to broader trends of the judicialization of politics (Stone Sweet Reference Stone Sweet1999, Reference Stone Sweet2000; Shapiro & Stone Sweet Reference Shapiro and Stone Sweet2002; Hirschl Reference Hirschl2004) as possible forces for democracy promotion (e.g. Dressel Reference Dressel and Case2015). Still others, like Meierhenrich (Reference Meierhenrich2008) and Massoud (Reference Massoud2013), have emphasized the legacies of authoritarian or inchoate legal systems when analyzing domestic and international efforts to promote new, more stable and democratic, institutions. Indeed, a whole industry has sprung up around the analysis of efforts to promote “rule of law” around the world or to promote democratization through legal reform in particular countries, especially in the wake of calamitous or genocidal civil strife or conflict (e.g. de Greiff & Duthie Reference De Greiff and Duthie2009; Hayner Reference 266Hayner2010; Olsen, Payne, & Reiter Reference Olsen, Payne and Reiter2010; Hinton Reference Hinton2011).

The past couple of decades have also witnessed an explosion of research on law and authoritarianism. Some have looked at authoritarian states’ use of law as an instrument of government action (Tamanaha Reference Tamanaha2004: 91–3) – one that can legitimate and regularize, as well as constrain, that action. Some of these theories posit a “rule by law” (Ginsburg & Moustafa Reference 265Ginsburg and Moustafa2008), under which authoritarian governments’ actions are made more predictable and legitimate, transaction costs and uncertainty are reduced, and conflict is brought under state-centered and state-dominated frameworks, even if rulers are not always subjected to the law's full control. Others have gone further, suggesting that authoritarian governments can willingly and consciously constrain their own behavior through a “partial rule of law” in order to facilitate easier governance or more efficient economic growth (Wang Reference Wang2015). Still others have analyzed the ways in which authoritarian states have deployed a superficially liberal discourse of law to give political cover to actions of illiberal authoritarianism (Rajah Reference Rajah2012). Thus, adherence to formal rules, rigorous separation of powers and at least nominal judicial independence can, somewhat counterintuitively, help bolster state attempts to restrict freedom of speech and of the press, contain protests and demonstrations, severely punish vandals and other petty criminals, and generally strike fear into a populace under a very high degree of surveillance and social control in a place like Singapore. Rule of law, or a retreat to legal formalism, in other words, can be used to enshrine and perpetuate political and economic power relations that are fundamentally inequitable (Neumann Reference Neumann1942, Reference Neumann1986: 6, chapter 16; Mattei & Nader Reference Mattei and Nader2008; Meierhenrich Reference Meierhenrich2008). Finally, a few scholars even go so far as to suggest that creeping ideas and practices of “liberal legality” can emerge even under harshly authoritarian political systems like Egypt's or Kuwait's, given the right mix of institutional arrangements and political incentives (Brown Reference 261Brown1997).

Persistent Gaps and Remaining Lacunae

Though scholarship has blossomed in the general field of law and politics, many significant gaps remain. For example, though much empirical work has been done on courts and legal institutions in other contexts (e.g. Shapiro Reference Shapiro1981; Jacob et al. Reference Jacob, Blankenburg, Kritzer, Provine and Sanders1996; Epp Reference Epp1998; etc.) – generally outside the Civil or Socialist legal traditions – less work has focused on China, Indonesia, or developing countries in general. That which has, has mostly centered on the analysis of supreme courts or judicial behavior (e.g. Helmke Reference Helmke2004; Pompe Reference Pompe2005; Hilbink Reference Hilbink2007), with some more recent attention to corruption and the rule of law and to issues of law and economic development (e.g. Kang Reference Kang2002; Moustafa Reference Moustafa2007; Wang Reference Wang2015). Generally missing from these analyses, however, is an historically informed focus on basic-level institutions and adjudication.

Importantly, most previous studies have tended to view legal systems as independent, rather than dependent, variables – as causal factors helping to lead to economic or political outcomes, rather than as outcomes to be explained in their own right. Thus, we often pay a great deal of attention to whether or how law facilitates or hinders economic development, protects or undermines individual liberties, promotes democratization, or preserves authoritarianism. But we have paid much less, and overall far too little, attention to how law or legal institutions are shaped by politics – and less still to the dynamic and iterative relationships between politics, law, and society across time.

This book sets out to fill some of these gaps. Specifically, by looking at legal regimes as products of political and social arrangements, I hope to add to our understanding of how politics can shape law. By examining the “second-order” causal influence of legal regimes on state–society relations and conflict resolution among citizens, I will improve our grasp of how legal orders, once established, structure other important political and social processes. By looking beyond supreme or high courts and focusing on local-level basic courts, I will increase our knowledge of how justice actually operates on the ground in previously underresearched contexts. By comparing across time and between both urban and rural areas, I will contextualize previously uncritical generalizations about courts or legal systems in China, Indonesia, and beyond.

Differentiating Legal Regimes from Rule of Law

Conceptions of the rule of law have garnered much attention and debate for a very long time, even well before Berman or Merryman offered the definitions I quoted earlier. Reacting against Plato's illiberal ideal of the “philosopher king” (Plato 1991), Aristotle (Reference Aristotle1984) argued that laws must reign supreme over any human ruler. Cicero advanced a similar position to bolster the institutions of the Roman Republic (Cicero Reference Cicero1928). Locke (Reference Locke1690) and Montesquieu (Reference Montesquieu1778) also saw legal rules and institutions as key to promoting good governance and preventing abject tyranny. Yet, it was not until Allen “A. V.” Dicey, an Oxford historian and legal scholar, wrote about it in the context of British constitutional debates in the nineteenth century (Dicey Reference 263Dicey1889) that rule of law came to concern the core of English language scholarship on law and politics.Footnote ¹ Shortly thereafter, Max Weber and Émile Durkheim emphasized formal legal rationality (though of a sort not necessarily compatible with Dicey's conception, rooted as it was firmly in the Common Law tradition) as an essential attribute of any modern state or political system (Durkheim Reference Durkheim1978; Weber Reference Weber, Roth and Wittich1978, Reference Weber1995: 338–43).

Since the early twentieth century, two basic streams of thought have emerged: a substantive perspective that sees rule of law as rooted in particular social or political arrangements (e.g. Weinrib Reference Weinrib, Huchinson and Monahan1987, Reference Weinrib2012a), versus a formalist view that sees specific legal rules as the foundation of the rule of law (Tamanaha Reference Tamanaha2004: 91–2). Each camp can be further subdivided into “thicker” and “thinner” variants, with the thin formalists arguing that a rule of law is achieved so long as governments act through some sort of formalized legal rules and thick substantivists maintaining that only with full democracy and social and economic equality can we even begin to contemplate a rule of law (Tamanaha Reference Tamanaha2004: 91). These sorts of debates sometimes take on an unfortunate normative character, with reprobative brickbats hurled at opponents by members of all camps.

Indeed, to borrow a phrase, the operationalization of rule of law has remained rather “dicey” (Rajah Reference Rajah2012: 37–9), as normative arguments have been put forward while specific metrics remain opaque, sometimes leaving scholars to lament that we are reduced either to an empty formalism or a facile assumption that all adjudication is hopelessly politicized and merely a product of broader power relationships (Weinrib Reference Weinrib, Huchinson and Monahan1987: 61, 65–7). In practice, we are often left with an adaptation of US Supreme Court Justice Potter Stewart's formulation (in a ruling on hardcore pornography): “we can't really define rule of law, but we know when we do or do not see it in operation in Country X.”(Stewart Reference Stewart1964).

Besides the moral hazard of slipping into normative name-calling, efforts to measure the rule of law (e.g. Ginsburg Reference Ginsburg2011) have sometimes been prone to succumb to what could be termed an endogeneity trap. To assert, for example, that the presence of certain legal rules implies a rule of law, and then also that the lack of a rule of law implies the absence of those same rules, and finally that a failure to adopt those rules will necessarily prevent the development of a rule of law, is tautological reasoning. Alleged causes of an outcome are measured by looking at aspects of the outcome itself. Without recognizing this sort of problem, too many scholars, governments, and international institutions define benchmarks uncritically and then assess countries in relation to imagined “objective” rule of law standards (Serban Reference 275Serban, Merry, Davis and Kingsbury2015: 204–5).

To steer clear of both the Scylla of fuzzy normativity and the Charybdis of tautological measurement, we must set aside the loaded concept of rule of law for purposes of dispassionate and systematic analysis. Rather than trying to rank legal systems by how “good” or “bad” they are – or by how closely they align with an explicit or implicit Anglo-American ideal type – we ought to group legal systems into categories defined by aspects of politics and the relationships of political institutions and actors to the work of the legal system, rather than by substantive or formal dimensions of law itself. The concept of legal regimes accomplishes this task and allows for a better characterization and categorization of legal orders and systems.

Legal Regimes: Outline of a Concept

The most basic definition of a legal regime is a system or framework of rules governing some physical territory or discrete realm of action that is at least in principle rooted in some sort of law. Often the concept has been applied to specific areas of law, relating to American labor relations (e.g. Estlund Reference Estlund2002) or environmental protection of the Polar Regions (e.g. Joyner Reference Joyner1999), for example. Much of this work, in turn, ties closely into political science scholarship in international relations, especially that which emerged in the 1980s under the banner of “regime theory” (e.g. Krasner Reference Krasner1983), emphasizing the development of shared rules, norms, and conventional practices that help shape actors’ expectations and behavior across national jurisdictions or between states in the international arena.

Lauren Benton, over a decade ago, offered the clearest recent application of the concept to the study of law and politics, focusing on “patterns of structuring multiple legal authorities” (Benton Reference Benton2002: 3). Tellingly, her main point is also to assess the interplay of legal systems, philosophies, and authorities in a specific kind of international context – legal pluralism in the age of imperialism and colonization. Benton's core questions revolve around how European powers negotiated specific kinds of indigenous law or systems of norms at different world historical times and against the backdrop of different legal and political orders in the metropole. In a different vein, John Cioffi used the basic idea of legal regimes to critique previous scholarship on corporate governance and the assessment of the rule of law outside advanced industrial economies (Cioffi Reference Cioffi2009).

While these are consequential points on important topics, the concept as deployed so far is of limited utility for my purposes here. I am less interested, for example, in understanding how the Dutch came to prioritize certain aspects of European or adat law or why the Chinese Communist Party made specific choices about which portions of the Republican Code to expunge or leave on the books than I am in getting to the bottom of the ways in which aspects of Chinese or Indonesian politics shape a general legal order, the functioning of which, in turn, has implications for broader dimensions of state–society relations and political change. Unpacking the concepts of legal regimes and sovereignty from a slightly different angle brings this into sharper relief.

Indeed, if we view legal regimes through a more clearly non-Weberian, lens, we can see the horizontal dimension of the typology presented in Figure I.1 as whether or not a given state has a coherent sovereign, and the vertical dimension as the degree to which any sovereign (or would-be sovereign) moves to declare exceptions in the realm of legal adjudication. Thus, when a coherent unitary sovereign is present, and that sovereign allows the legal order to operate more on the basis of norms and rules than decisions and exceptions, we see a rule by law. When such a sovereign exerts the force of exceptional decision with some regularity, neotraditionalism is present. When no sovereign is present and the legal order operates by norm rather than decision, we see formally rational pluralism (an unsurprisingly rare outcome). And finally, when no sovereign is present, but one or more would-be sovereigns move to assert their positions through appeals to charismatic or revolutionary authority and to claim the right of exceptional decision, mobilizational legal regimes can be observed.

Building on the work of Rousseau, Hobbes, and others, Carl Schmitt famously argued that, “sovereign is he who decides on the exception” (Schmitt Reference Schmitt2005: 5). Citing the work of Jean Bodin (a sixteenth-century law professor at the University of Toulouse), he further maintained that the sovereign must be unitary, able to act to suspend laws or political commitments without any checks or accountability to other actors or processes. If this unity could not be guaranteed, “sovereignty would thus become a play between two parties: Sometimes the prince and sometimes the people would rule, and that would be contrary to all reason and law” (Schmitt Reference Schmitt2005: 9). This view of sovereignty as indivisible also can be traced back to The Social Contract and Leviathan, since, “Sovereignty is indivisible for the same reason that it is inalienable. For the will either is or is not general; it is the will either of the whole body of the people, or of a part only” (Rousseau Reference Rousseau1986: 26), and, “For what is it to divide the Power of a Common-wealth, but to Dissolve it; for Powers divided mutually destroy each other” (Hobbes Reference Hobbes1985: 368).

It is possible that a state lacking a sovereign may also lack any legal order at all. This would be a true case of the bellum omnium contra omnes that theorists like Hobbes and Schmitt feared so gravely. More likely, we might find an order in which a constitutionally limited or otherwise silent sovereign, one which Schmitt might deride as a state seeking to reduce politics to a “monstrous” debating club (Schmitt Reference Schmitt2005: 25–6, 63, 2007: 28), gives way as much as possible to the operation of a formally rational legal system, operating on the basis of norms and steady rules rather than exceptional decisions. Such rational pluralism is also very close to the ideal seen by many rule of law theorists, but it is not present in the cases I have studied and is likely much rarer across the world than many would like to believe or hope.

In a state where one or more would-be sovereigns seek to establish themselves, but none has yet prevailed, we can observe mobilizational legal regimes, in which one or more actors seek actively to impose sovereignty through exceptional declarations and decisions, to assert an unlimited authority, to call a legal order into being by producing and guaranteeing a situation in its entirety, and to lay claim to a “monopoly to decide” (Schmitt Reference Schmitt2005: 12–13). The successful imposition of such charismatic authority restores an equilibrium of normality in which mobilizational legal regimes can no longer function. Unsuccessful attempts allow continuing contestation and the further deployment of mobilizational regimes.

Legal regimes in states with Schmittian or Hobbesian sovereigns are easier to categorize. The sovereign either allows the legal order to operate without recourse to exceptional decisions or it does not. Where it allows legal institutions to operate normally, we see a rule by law regime. Where the sovereign feels obliged frequently to decide to suspend normal legal processes or protections, to exert nonlegal power over law, it does so in order to clarify and maintain a consistent friend–enemy distinction, and thus to preserve vital elements of political order (Schmitt Reference Schmitt2007: 26). Specifically, according to Schmitt, all states must decide upon public enemies, hostes not inamici, who are to be excluded from the polity, confronted, and if need be destroyed, in order to constitute and preserve the political order and the very integrity of the state (Schmitt Reference Schmitt2007: 28–30). This means that there will be some individuals or groups to whom the law specifically does not apply, who are rendered as some form of homo sacer – made to stand outside all law, secular and religious, human, and divine, such that their lives are not valued either as potential murder victims or as valid sacrifices (Agamben Reference Agamben1998: 73–4). When the sovereign frequently acts to draw such distinctions, almost always in the interests of preserving established hierarchies and power relationships, we can see neotraditional legal regimes in action.

Examining the typology of legal regimes from these different perspectives serves several purposes. It helps broaden the theoretical and analytical foundations upon which my main arguments rest. It addresses critiques of the entire rule of law project and literature – which I have already criticized for its close adherence to conservative and Common Law principles – that have come from many quarters (including some fundamentally illiberal ones). And, finally, it affords us a more complete and coherent platform from which to consider the conceptualization of various legal regimes and to categorize those on which I was able to collect data in China and Indonesia.

In the end, legal regimes are frameworks of relationships between institutions and actors that structure the politics of the application of legal rules and the social effects of that application. Legal regimes are defined by two key dimensions of politics, rather than by any provisions of formal or substantive law. As suggested earlier, and building on Damaska's two-by-two framework (Damaska Reference Damaska1991), legal regimes take shape along two dimensions: how open or changeable the polity is and the degree and manner of intervention by nonlegal state institutions or political actors into the legal system's adjudication or handling of specific cases. Political variables exert causal influence over legal regime outcomes. But legal regimes, in turn, exert causal influence over important dynamics of state–society and intrastate relations.

Specifically, individuals and social groups exert influence over the constitution of the polity and nonlegal system state institutions. These institutions then exert influence over the manner in which courts and legal institutions are constituted and engage in adjudication. The structure and functioning of courts and legal institutions, in turn, exert influence over the polity and nonlegal system state institutions and also interact in important ways with social groups and individuals, helping shape other aspects of politics as well as important dynamics of state–society relations. In Figure 1.1, the thick solid lines thus represent primary causal influence. The dotted lines show what sorts of causal relationships come into play once the primary influences have essentially done their work. Finally, the thin solid lines show causal influences and relationships that I will not attempt to analyze or explain, but that are important nevertheless.

Figure 1.1 Causal dynamics of legal regimes

Having defined legal regimes as at least in large part products of political arrangements, it is seductive to conclude that law and adjudication are merely epiphenomenal, or at least in a subordinate position – in other words that rules and processes matter little in the face of political power or social change. Such a position, while clear and consistent, is also too facile. E. P. Thompson, in the final chapter of Whigs and Hunters – his book about an eighteenth-century crackdown on deer poaching in Southern England – struggles with the role of law vis-à-vis economic and political power relations. What he ends up saying, after much perambulation around the topic, is that the relations of production help produce legal rules and forms that reflect material class hierarchies and power politics; but, once established, these legal rules and forms, rather than being mere superstructure, play important roles in structuring ongoing class conflict and social relations. My position on the somewhat reflexive causal role of legal regimes is similar, though less faithfully Marxian. Politics shape legal regimes, but once in place legal regimes structure political and social relationships and contestation.

This causal two-step, building on Thompson and placing law at an intermediate stage of the chain rather than at the end or the beginning, is an essential innovation over most previous perspectives and allows us to grapple with more complex arguments and empirical reality with greater agility. It also allows me to take into account the fundamental insight of many scholars of what we might term critical legal studies (e.g. Kennedy Reference Kennedy, Huchinson and Monahan1987): that not only the content of rules, but also the manner in which they are applied to specific cases, is largely a function of political preferences, choices, and constraints faced by judges.

Rulemaking and the structuring of the judiciary are outcomes of fundamentally political processes and conditions (the structure of the polity, or whether or not there is a coherent unitary sovereign). Once we understand this, we can then examine rule application and adjudication not to assess whether or not it is objective by any universal standard (as it is highly unlikely ever to be in any country or system), but rather merely to gauge the manner and degree of direct intervention into the process by actors outside the formal legal system; that is, to what degree and in what manner can we regard the adjudication process as formally rational on its own terms (or to what degree the legal order operates according to norms rather than decisions).

In this blending of a social science perspective on “law in action” with more traditional approaches to the study of law and politics and a sustained attention to the insights of more critical perspectives, my approach aims to occupy the terrain staked out recently by the so-called New Legal Realism, especially in its “big” or “broad tent” formulations (McCann Reference McCann, Klug and Merry2016: xviii; Mertz Reference Mertz, Mertz, MacAulay and Mitchell2016: 6–8). Specifically, I aim to take power as a central concept, focus on the recursive relationship between law and society, examine how legal systems and structures interact with social and political hierarchies, and integrate the perspectives and experiences of individuals and institutions near the bottom of the hierarchy in ways that inform theory, blending more traditional top-down ideas with a more bottom-up empirical focus and perspective (Klug & Merry Reference Klug, Merry, Klug and Merry2016: 1–4; Mertz Reference Mertz, Mertz, MacAulay and Mitchell2016: 6–7). Such an approach seeks to follow the example set by Nick Cheesman's pathbreaking study of law and politics in Myanmar (Cheesman Reference Cheesman2015), in which he manages to relate broad conceptual debates about the nature of law, society, and the state with astute observations about law and politics over 200 years in Myanmar and careful analysis of numerous, mostly previously unavailable or unexamined, individual criminal cases.

Utility of Legal Regimes for Understanding Complex Realities

Legal regimes can be used to characterize a broader set of complex realities than many otherwise useful and popular concepts. Rule of law and rule by law, for example, are both more limited. Without adding clumsy and cumbersome adjectives or qualifiers – epicycles and exceptions worthy of a Ptolemaic astronomer – we can only use them to describe or analyze a narrow band of the range of possible legal orders. Everything else is necessarily beyond the conceptual pale. Similarly, classifying legal systems according to legal traditions provides scant help for those seeking to compare within or between them. Pioneering work like that of Shapiro or Merryman may have hinted at how to compare across traditions, but for these authors most variation seemed always a product of differences between the traditions of interest (almost always Common versus Civil Law), even while most other authors restricted their analyses to a single tradition. Scholars of legal pluralism, federalism, and other special arrangements have perhaps made more substantial gains, but their studies are too often restricted to the examination of formal legal rules rather than legal structures or institutions in action.

Legal regimes let us compare both within and between legal traditions. They also facilitate comparisons at the subnational level – allowing us, for example, to comprehend the legal order in the American South by accounting for that region's much less open polity and the stronger tendency of nonlegal institutions to intervene in the adjudication of specific cases there (Gibson Reference Gibson2013). They also let us explore how a particular kind of political or social organization or arrangement – oligarchy, for instance (Winters Reference Winters2011) – can exert important influence across a wide range of legal traditions and state structures to bring much greater uniformity to their legal orders than might otherwise be expected. Finally, legal regimes also offer us a way to get beyond broad national-level phenomena and relatively blunt, if weighty, conceptual tools like judicial review (e.g. Ginsburg Reference Ginsburg2003) or secularism and constitutional design (e.g. Jacobsohn Reference Jacobsohn2003) to examine the way law actually works at the grassroots; but then also to aggregate back up again in a way that facilitates comparison at the national level or beyond. This is because each category of legal regimes follows a broadly consistent set of political, institutional, and social causal phases and relationships.

In legal regimes in which the polity's composition is open, unsettled, or contested, law will usually be accessible to a broader segment of the population. Where contestation is the order of the day, political contests will play out in legal arenas, especially when nonlegal actors intervene deeply or frequently into the adjudication of cases. In legal regimes where the polity's composition is settled and fixed, law is likely far less accessible to the general citizenry and much more likely at least to appear apolitical. This is true even when political actors intervene frequently and substantially in adjudication.

Distinguishing between Public and Private (or Criminal and Civil) Law

Many authors have noted in multiple contexts that law governing relationships between citizens and the state (especially criminal and administrative law), often called public law, is fundamentally different in its aims and organizing principles from law which governs relationships between individuals or non-state organizations (for example, tort law, contract law, and family law), often called private law. Public law is concerned most essentially with regulating the state's application of violent or coercive power – what could be termed its “legitimate domination” – to individuals or private entities (Neumann Reference Neumann1986: 20). Indeed, even in the realm of US criminal adjudication (often presumed by many to encapsulate the sedate and norm-based operation of the rule of law), Robert Cover astutely observed that, “The judges deal pain and death” (Cover Reference Cover1986: 1609), since, “Legal interpretation is (1) a practical activity, (2) designed to generate credible threats and actual deeds of violence, (3) in an effective way” (Cover Reference Cover1986: 1610). Private law is fundamentally concerned with facilitating certain kinds of social relationships (stable and honest business partnerships, transparent transactional contracts, monogamous families, etc.) and discouraging others (e.g. making contractual promises one cannot keep, negligence regarding consumer safety, bigamy, or libel) (Neumann Reference Neumann1986: 21). Within private law, family law is in many ways a special case. It governs the definition, structure, maintenance, and dissolution of the most basic social units – families – and thus functions more in the manner of public law than does, say, commercial or tort law.

The basic political logic and social implications are thus different for public and private law. It is through public law that states and polities fend off challenges and maintain order (Pound Reference 274Pound1942), but through private law that they foster the development of markets or other economic arrangements they see as preferable or efficient (Hart Reference Hart1994: 40). Failure to distinguish between these two areas of law can obfuscate one's view of the legal regime in play, especially in many cases of what I have called “hybrid” regimes. In such cases, we may see a very clear neotraditional regime in private law and what looks like a rule by law regime in public law, or vice versa. In fact, such hybrids may be more common than “pure” examples of either type. Acknowledging the different political roots and social implications of each type of law allows us to observe such regimes more clearly and to categorize them more accurately.

It is very rare that we might find hybrids of rule by law and mobilizational regimes. Indeed, mobilizational regimes are more prone to ignore one or the other type of law almost completely. When charismatic authority is successfully asserted and states have sufficiently functional institutions, public law may be used to enforce reigns of terror upon perceived enemies or challengers. But when states are weak or sufficiently powerful leaders absent, feuding factions within the polity may be apt to fight out their battles in the arena of private law – or to attempt to reshape portions of private law to suit their agendas, while public law's coercive apparatus may become enfeebled or even lie moribund in the absence of coherent direction from above.

Finally, the history of particular countries can sometimes show a long-term bias for public or private law. As I discuss in Chapter 2, this is true to some degree for both China (which has often favored public law) and Indonesia (which has placed more stress on private law). Thus, when examining the legal regime or regimes present in any given state, we must look separately at both public and private law systems and institutions, before we can assess them together, because of the fundamentally different political dynamics that underpin each and the divergent types of social effects each can produce, as well as idiosyncratic features of specific country contexts. Failure to disaggregate in this way can lead to misperception and inaccurate categorization.

Distinguishing between Urban and Rural Justice Systems

In both China and Indonesia, and likely across many developing countries, the principal divide is between urban and rural areas. This is true for many areas of social, economic, and political life, as well as for the structure and functioning of legal institutions. These institutional differences are key to understanding why legal regimes play out differently, at least in terms of some of their effects, in urban versus rural settings. Urban courts and legal institutions are likely to have vastly more economic resources at their disposal, to be more secure in their political position, to be staffed by judges and other officials of higher status and holding more prestigious qualifications, and to be much more visible to elites and other observers, both within and beyond a country's borders. Rural courts and institutions tend to be short-staffed, to be administered by less qualified – or even completely unqualified – judges and officials, to be chronically underfunded and short of resources, to suffer from a lack of status and clout, and to be overlooked by both domestic and international elites and observers.

But what does that matter? Such differences should not change the underlying elements of the legal regime. We cannot observe, for example, a neotraditional regime throughout the cities and a mobilizational one in the countryside. While they do not affect the core attributes of a national-level legal regime, urban–rural divides can and often do exert tremendous influence over the specific ways in which legal regimes manifest themselves on the ground and the social and political effects they have in the broader society.

For example, interventions by nonlegal actors into the adjudication of specific cases (whether in a neotraditional or mobilization regime) are much more likely to be coordinated and consistent in urban areas, but less efficacious and subject to being hijacked by the idiosyncratic interests of local strongmen in rural hinterlands (Migdal Reference Migdal1988). Also, perhaps perversely or counterintuitively, the social and political stakes in play are often higher in rural settings than in urban ones. Because relatively little social conflict or repression reaches the formal institutions or courts in the countryside, that which does is frequently only observable in a subset of the most intense, meaningful, or politically charged cases. Finally, actions of national-level states to reform or change the legal system can have profoundly different effects on the ground in urban versus rural contexts. One vivid example of this can been seen in how mass campaigns in China during the 1950s upended an urban justice system left more or less intact after 1949, but breathed new life and clout into many rural courts that were just being constituted in many parts of the country (Hurst Reference Hurst and Garrick2011). It is thus vitally important, when assessing national-level legal regimes, to examine both urban and rural areas with some sensitivity to these important differences of economic, social, and political background and effects.

Internationalizing Subnational Comparison

Chinese Politics has remained remarkably isolated from the rest of comparative politics, while scholarship on Indonesia, and Southeast Asia more generally, has been much more successful at speaking to broader audiences. Yet, even the most celebrated works from the field's heyday (roughly 1965–85), as well as more recent hits (e.g. Slater Reference Slater2010; Vu Reference Vu2010) can be criticized for perhaps moving too quickly up the ladder of generality and sometimes glossing over important subnational variation (for a recent exception, see Buehler Reference Buehler2016). The critical task looking ahead is to scale up insights from careful subnational work (like that which has characterized the best of the China field) so that they can help advance broader claims and debates, as the best work from the Southeast Asian literature has done.

Some of the most methodologically attuned China specialists have advanced a case for not subjecting China to cross-national comparison. Allen Carlson, Mary Gallagher, and Melanie Manion have argued that China does not bear many similarities to other socialist countries and cannot, therefore, be compared easily against this group. Second, citing my work and that of others, they note that significant subnational variation requires nuanced and careful analysis before cross-national comparative studies could do justice to the complexities of China's political reality. Finally, they maintain that persistent problems of data quality and availability restrict researchers in any attempt to gather cross-nationally comparable data (Carlson, Gallagher, & Manion Reference Carlson, Gallagher, Manion, Carlson, Gallagher, Lieberthal and Manion2010: 4–7). All of these are valid points if we presume that comparisons of China with other countries will be in the form of whole-to-whole examinations of national-level cases.

Indeed, this penchant to eschew cross-national comparative analysis of China apparently stems from the fact that most in the China field and beyond have assumed that small-n cross-national comparisons tend to (or ought to) involve the paired or structured comparisons of states at the national level. Even in prominent recent work that professes to celebrate subnational comparative analysis, Dan Slater and Daniel Ziblatt confine their most important theoretical and methodological discussions to extolling the advantages of controlled comparisons of states at the national level (Slater & Ziblatt Reference Slater and Ziblatt2013). Large-n cross-national analyses, comparing scores of countries in a dataset using quantitative techniques, hold even less appeal for those who care deeply about the accuracy and internal validity of arguments about specific national cases.

Colleagues working on other parts of the world have sought in recent years to compare subnational units across states (e.g. Gibson Reference Gibson2013; Sinha Reference Sinha2015). While most of this work has centered on subnational political units – largely in federal systems – some of the best recent research has started to look beyond such neat divisions, for example at subnational political economic regions across states (e.g. Boone Reference Boone2014) or at specific portions of the political or economic order across states (e.g. Naseemullah Reference Naseemullah2017). It is this kind of comparison of political economic regions, subnational social or ethnic groups, or of specific portions of the political apparatus or economy that is potentially most fruitful for those looking to compare across large nonfederal states, especially in the developing world. Doing this requires two choices, however: first between inductive and deductive comparison within each country and then between several possible strategies for comparing across countries.

Inductive analysis entails selecting several subnational cases pretty much at random, or based upon where the researcher can best secure access, and then, after compiling extensive data on each case, suggesting types or categories based upon observed variation between the cases. Little need to be established or assumed about the representativeness or external validity of the case study findings. While hypotheses about larger classes or groups of cases can be generated, they cannot be tested or evaluated. This method also cannot suggest what may lie beyond the range of observed variation and categories. Inductive analysis may thus not be the optimal choice.

In deductive subnational analysis, the researcher must select cases to be representative of some larger set according to some framework theorized a priori. Once cases are selected and analyzed, the researcher can advance claims about the classes or subsets of cases they represent. Perhaps more importantly, this method is especially useful for suggesting hypotheses about the limits of generalizability of any claims made – that is, about the antecedent conditions or background variables required for them to operate. It is these meta-hypotheses, as much as the subnational causal claims, which can be usefully tested by engaging in similar or analogous subnational analysis in another national context (Hurst Reference Hurst2009). The difficulty lies in the necessary first step of selecting representative cases – which is not feasible in all research contexts.

After deciding between deductive and inductive analysis, a choice must also be made between “general insight” comparison and at least two possible two-step comparative strategies. General insight comparison involves the derivation of general hypotheses from the subnational analysis of cases within one country. This has always been the most common strategy for moving beyond the borders of a single state in subnational analysis (Slater & Ziblatt Reference Slater and Ziblatt2013: 10–11). Once some argument about subnational variation or causal patterns is established for Country A, it can be phrased in general terms, “replacing proper names with variables” (Przeworski & Teune Reference Przeworski and Teune1970), and transported to other national contexts for evaluation.

A “traditional” two-step comparison involves subnational comparison first, followed by national-level comparison of the country studied to some other country or set of countries. Essentially, this strategy amounts to using subnational comparison to derive general claims about one country as a whole – analyzing several parts to map the contours of that whole – and then comparing the whole against that of some other country or set of countries. The disadvantage of this strategy is that it assumes that a valid part-to-whole mapping is possible (Snyder Reference Snyder2001). If we cannot know anything meaningful about China qua China, then we cannot compare China as a coherent unit with some other country also taken as a coherent unit. The baseline problem of overgeneralization about each country case is not resolved and the advantages of subnational analysis are eroded.

“Millian” two-step comparison first uses Mill's method of difference (Mill Reference Mill1843: 455–60) to control x-variation and engage in side-by-side subnational comparisons of outcomes and processes separately within one country and within another country, running what amounts to two most-similar systems designs (Przeworski & Teune Reference Przeworski and Teune1970) in parallel. Then, subnational cases or processes that appear analogous are matched across national contexts and Mill's method of agreement (Mill Reference Mill1843: 454–5) is applied to evaluate whether similar causal logics hold across different country cases – essentially a type of most-different systems design (Przeworski & Teune Reference Przeworski and Teune1970) in the second step. This method has the very significant advantage of first controlling x-variation to discern patterns and to formulate hypotheses about the antecedent conditions required for these to operate, and then controlling y-variation to test the necessity of these hypothesized antecedent conditions.

Comparing subnational phenomena across cases has become a popular strategy among China researchers (e.g. Solinger Reference Solinger2009; Read Reference Read2012; Repnikova Reference Repnikova2014). I suggested some years ago the utility of comparing regions (Hurst Reference Hurst2009: 143), though this has not yet been taken up widely. Comparing institutions may actually be more practical than comparing regions and more useful than comparing phenomena. For example, looking at subnational braches or other microlevel arms of the state, such as local courts or police, should make it clearer which dimensions of x-variation can be held constant and which cannot. By restricting one's focus to subnational institutions, the researcher can have a clearer sense a priori of his or her cases across a broad range of potential independent variables, and spell out much more accurately and cleanly on which causal dimensions they vary and which factors can indeed be held constant.

The Method Applied

To study legal regimes in China and Indonesia, I use a combination Millian two-step and traditional two-step comparative method. Selecting urban and rural areas to give as broad a cross-section of contexts within each country as possible (while holding national-level variables constant), I look over time at how courts and legal institutions functioned, regarding both public and private law, in each place. Aggregating up to the national level, I am then able to outline the legal regimes in play in each country during specific time periods. In this basic form, my method resembles the traditional two-step. Still, the fact that legal regimes are disaggregated to public and private law and into different time periods in each country helps me use more of a Millian two-step, in that neither China nor Indonesia is given a single fixed score for “legal regime type.” Comparing legal regimes operating in either public or private law at specific moments in time thus amounts to a comparison of subnational elements of politics rather than overarching national types.

Data and Empirical Approach in Light of Prior Research

No research begins tabula rasa. There are rich traditions of scholarship that have accumulated on law and politics in both Indonesia and China, though these have not addressed all of the concerns that inform my study. This book aims to offer a more comprehensive and macro-oriented perspective than most prior empirical research, while at the same time offering much richer close-to-the-ground data and micro-analysis than most prior theoretical work, bringing the two strands together and making contributions to both. This book's principal theoretical contributions have already been discussed, but its new empirical offerings should become clearer after a brief review of prior work on Indonesian and Chinese law and politics.