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The study of disputing has been a central concern of law and society scholars for nearly fifty years. Rather than focusing narrowly on cases litigated in state courts, law and society scholars broadened their perspective to include the handling of conflict in myriad fora throughout society, from neighborhood councils to consumer complaint boards to the interventions of shamans and village leaders. Law and society researchers working in Asian settings are no exception. Some earlier studies were village-based, highlighting the largely conciliatory practices of mediators who sought to maintain harmony by promoting apology, restitution, and spiritual well-being. Recent studies examine the relationship between litigation and nonjudicial dispute resolution, highlighting the ways in which courts and judges are influenced by the handling of conflict outside state law. A third type involves state’s attempts to divert litigated cases to “alternative dispute resolution” procedures established as adjuncts to the formal system. Although ADR is sometimes promoted as a restoration of traditional community mediation, law and society researchers have generally demonstrated that its close connection to the official legal system raises complex issues of justice and the protection of rights by persons who lack sufficient wealth or power to succeed within formal judicial arenas.
Legal mobilization refers to the use of law to express claims and desires in order to achieve change or protect interests. It can be carried out by individuals or by a collective of people. Importantly, legal mobilization encompasses more than going to court to litigate disputes, an action that may prove ineffective or even irrelevant in some Asian contexts. In addition to litigation, legal mobilization occurs in other ways, even when an individual or group merely articulates a problem to a confidante in terms of rights or other legal concepts. In Asia, this broader concept of legal mobilization is especially apropos, since so much “legal” activity—broadly construed—takes place far from the justice institutions the state has established. In this chapter, the readings illustrate the range of tactics used by those who mobilize the law to achieve their goals. They also illustrate both the risks and rewards associated with the invocation of legal rights in Asian societies. As the authors make clear, rights can have paradoxical effects, and can simultaneously empower and disempower or stigmatize those who use them. In some instances, however, the results are hugely beneficial to those who felt hopeless in the absence of legal protection.
This chapter illustrates how law and society scholars conduct empirical research to pursue questions and build theory about law in Asian societies. It is not a manual for how to use various research methods or for asking and answering research questions. Rather, its purpose is to provide examples of how Asian law and society scholars go about their work, what challenges they encounter, and how they address them. It features both classic and new and innovative approaches. One set of readings illustrates how researchers obtained access to their subjects and how they collected data. A second set of readings shows how researchers wrestled with aspects of their own identities in relation to the research site and the people whom they study. A third set illustrates law and society researchers practicing their craft in the digital age, using social media and other advancements in technologies to pursue their research questions. All the readings are drawn from studies that appear in earlier chapters. In this way, readers get a peek behind the curtain, so to speak, and gain a better understanding of how the authors featured in this book struggled with the challenges faced by all researchers—and how they overcame them.
Legal pluralism studies of Asian law and society are of three types. Some law and society scholars rely on the concept of legal pluralism to theorize official law in relation to various other legal orders operating in the same space. Legal pluralism provides them with a means to describe each of the multiple systems of law and to consider the ways in which they interact with one another. Other law and society scholars, adopting a more state-centric perspective, have studied how different Asian governments address the plurality of legal orders familiar to different population groups or different sectors of social life—such as the family, land, and property; labor and employment; or religious affairs. They show how Asian states—colonial and postcolonial—use legal pluralism to legitimate and extend their power over Asia’s diverse peoples. For a third group of law and society scholars, legal pluralism provides a framework for their “bottom up” research on law in everyday life. They show how individuals pick and choose among various legal orders as they deal with disputes, family matters, economic and social exchanges, claims to land and water, and other matters.
This introductory chapter defines and describes the field of law and society in general and the rapidly expanding body of law and society research conducted in Asia in particular. It distinguishes law and society research from three close intellectual "cousins": traditional legal scholarship, law and development studies, and critical legal studies. It then traces the various strands of Asian law and society scholarship as they developed quite differently in four Asian countries: Indonesia, Japan, China, and India. The Introduction concludes with a description of the nine chapters contained in the Reader and the five crosscutting themes that appear in each chapter.
This chapter examines courts in Asia as cultural symbols, social organizations, and political battlegrounds. As cultural symbols, courts are often embedded in religions, colonial legacies, and local norms. These cultural symbols are found in both informal tribunals and more institutionalized religious and secular courts. As social organizations, courts are intertwined with bureaucratic hierarchies, political influences, and the career trajectories of judges. This is particularly salient in civil law jurisdictions across Asia. As political battlegrounds, courts provide a space for the judicialization of politics as well as a soil for judicial corruption. The readings also examine the complexity of judicial decision-making in different national contexts. In addition, the readings highlight the nature and impact of judicial reforms, which take place amid broader political and social changes in both democratic and authoritarian contexts and can lead to tensions as well as encourage new alliances.
This chapter contains readings on Hinduism, Buddhism, Islam, Confucianism, Taoism, and localized so-called “animist” religions based on spirits and nature. Although in premodern legal systems, law and religion were virtually indistinguishable, “modernity” required a separation of the two concepts. The readings address the arrival of European-style legal systems, often (but not always) imposed by colonial authorities, which carried with them some version of the principle of “secularism.” In fact, secularism took on many different forms in Asian societies, each marking out a distinctive role for law, in some instances to police the separation of law and religion and, in other instances, to ensure that a particular religion retained a preferred place in society. The chapter concludes with readings about modern interactions between law and religion in three very different societies—Singapore, Sri Lanka, and Japan.