Comparative Law and Legal Transplantation in South East Asia: Making Sense of the "Nomic Din"

[ch.9 of Nelken, D., and Feest, J. (ed), Adapting Legal Cultures (Oxford, Hart Publishing, 2001); NB. Excuse some minor transcription errors which are due to scanning hard copy. This piece is probably my most-cited one, and is used often in comparative law courses; so much so that some generations of law students know me as the 'The Nomic Din Guy'.]

INTRODUCTION

In the mainstreams and occasional eddies of comparative law, as well as in the related fields of comparative sociology of law, legal theory in general, and law and development, virtually no account has been taken of the South East Asian legal experience, even though some excellent and highly relevant work on the region has been done. Scholars in the field of law in South East Asia have therefore trodden a somewhat lonely path.[1]

The neglect of South East Asia is a very unfortunate missed opportunity to experiment in an ideal laboratory. The region has an abundance of legal traditions, practically all of them having been "received" in one sense or another, and encompassing all the world's major legal world-views and systems. If the crossroads of legal traditions are nodal points where comparatists are to be found, then one ought to be tripping over them in South East Asia;[2] and it is high time that we were able to draw some general wisdom based on legal scholarship on South East Asia. The reasons for neglect probably lie in the sheer quantity, diversity and strangeness (to the prejudiced minds of western jurists, at least) of the material; the lack of historical unity of the region; the lack of clearly established definitions of terms such as "law" and "legal culture"; and the lack of an extensive academic legal literature, at least compared with, say, Africa, Japan, or China.[3] These factors make it hard to provide general answers to the kinds of questions which the legal disciplines pose.

In my own work on constitutional and environmental law, and law-and-society issues in Malaysia and Singapore (which are in fact quite well researched and manageable fields compared with most aspects of law in South East Asia), I have had first-hand experience of some of these difficulties. These relate to matters such as intellectual and moral perspectives and epistemology, but they are also practical in nature. To take a couple of examples, moral relativism is clearly a major difficulty, especially when "Asian values" are presented as a justification for particular views about law; and the contradictions within South East Asian societies, although extremely interesting, render this problem even more baffling to the researcher: "local knowledge" certainly, but what kind of, or whose, local knowledge (Geertz, 1993)? And the concept of "legal families", which might be thought to be an obvious starting point, makes no sense at all in South East Asia, where one can find, for example, Islamic, Chinese, Hindu, indigenous customary and European legal norms almost inextricably entangled.[4] And of course language, which is the key to so much, is also a considerable obstacle in many contexts. Culture can be even more of an obstacle to comprehension when one considers that the world of airports, universities and the internet often exists hardly an hour's drive away from the world of longhouses and blow-pipes.

The problem of diversity is hard enough in self-consciously post-modernist Europe, but in South East Asia one has to ask, for example, what is it that an Irian Jaya tribesman, a Philipino maid, a Singaporean bond-dealer, and a Vietnamese peasant have in common? I recently saw a newspaper article, with photograph, about a Thai buddhist monk using the internet to move shares around in order to make profits for his monastery to do good works. The image has stayed in my mind as a kind of symbol of the bafflement to which I refer, but it also inclines me to think that an intelligent response is possible. In a sense the western scholar's problems of perspective somewhat reflect those of South East Asia itself. To put it another way, if one studies South East Asia, the differences, the contradictions and the diversity have to act as an encouragement to deepen speculation rather than throw in the towel: they are a profoundly challenging and, in an important sense, unifying, social fact. The image of the monk surfing the internet is not just an image of contemporary South East Asia: it is a salient image of our time. Incongruity and cultural relativism are indeed symptomatic of the main problems of humanity, but egregiously so because the juxtaposition of opposites is now inevitable precisely because of what, in my judgement at least, amounts to a great coming together of humanity, and begs the kinds of question which the study of law tries to disentangle. In other words, the more need there is for cultural translation, and the more the possibility of dialogue entices, the more aware we are of the depth of the gulfs which define and divide us.

The reader will by now have gathered that this chapter will be an attempt to do comparatively little in terms of legal culture and legal transplants. I wish to provide a few comments on the question of legal transplants from a South East Asian juristic perspective, while placing the discussion firmly on what may be called the map of our ignorance. I propose therefore to commence with scholarship: but I will end by discussing law and legal transplantation. In the process I will allude to the problems and possible agenda for research on law in South East Asia, which, as I will indicate, is virtually synonymous with, or at least overlaps with, research on legal transplants and legal pluralism, which I take to be a convenient starting point (as well as a very obvious "topos") for thinking about law in South East Asia. To provide a thorough and convincing descrip­tion of legal transplants in South East Asia would clearly need a much longer chapter; yet it seems to me that, fundamentally, the case chat South East Asia establishes the possibility of legal transplants across legal cultures can be made convincingly, in outline at least, and that I will attempt to do.

COMPARATIVE LAW AND SOUTH EAST ASIA

So, to begin with scholarship. Looked at from the perspective of South East Asia, a narrative of comparative law scholarship thus far might run something like this.[5]

The colonial period, comprising the nineteenth century and the first half of the twentieth century, embraced a macroscopic, or telescopic, generalised approach. Its major figures were Weber and Maine, who confronted Asian "customary", "religious" or "indigenous" law, and constructed grand taxonomic theory on the basis of cultural differences between the East and the West; the residuary legatees of this approach are those comparatists who use the idea of "legal families" (David and Brierley, 1985; Zweigert and Kcetz,1987; and even Mattei,1997 for example).

A second phase, beginning well into the twentieth century, involved other figures who did more microscopic, detailed research, driven sometimes. by the practical requirement of colonial policy to find out about the "local" law preparatory to, or consequent on, the general reception or imposition of Roman-Dutch law or English common law. In South East Asia these were the likes of van Vollenhoven and ter Haar in the Dutch East Indies; Hooker, Winstedt and Wilkinson in Malaya; and Quaritch Wales, Engels, Lingat and Burnay in Burma and Thailand; they did detailed work on particular legal cultures or legal history.[6] These scholars were sometimes captivated by their subject-matter and encouraged respect for the local law: van Vollenhoven succeeded in stalling attempts to impose the Dutch Civil Code on the East Indies on the basis that adat (Malay custom) was well adapted to the needs of the subject population and European law would interfere with their culture. Ultimately, however, imperial and commercial policy prevailed. As a result of nationalism and unification Indonesia has the Dutch Civil Code, and Malaysia and Singapore the Anglo-Indian Contracts Act; and other South East Asian countries have been heavily influenced in one way or another by civil or common law, even if, as in Thailand, this took the form of innoculation against colonialism rather than infection by it.

The period since 1945 has seen two further phases. The first was the period of decolonisation and independence, in which it was assumed that the logic of "law-and-development" would result in the convergence of Asian legal systems along "Western" lines, a view which sat easily with the comparative-law orthodoxy, if not with the work of all comparative lawyers. This was the period in which "new states" would prevail over "old societies" (Anderson, 19836: 477). It finished with the apparent failure of the law-and-development initiative in the early 1970s (Trubek and Galanter, 1974). In Asia, however, the notion of the "Asian developmental (or regulatory) state", characterised by social stability, authoritarian governmental structures (Pye and Pye, 1985), and long-term economic planning, is now seen by many as crucial to the understanding of law-and-development in Asia (see, e.g., Quah and Neilson,1993). A new phase since about 1990 emphasises "law-and-governance", and "globalisation-law", which have driven much of legal development in South East Asia (Pistor and Wellons, 1999}. The interesting outcome of this phase and the recent economic crisis is a renewed emphasis on culture and society as guides to the analysis and understanding of law, and on legality, legal certainty or the rule of law, as the way forward beyond the crisis. Thus "new state: old society" has given way to "old state: new society"; in this phase it is expected that Asian legal systems, propelled by people power and international commerce, will finally reach maturity: law as envisaged by the civil society (to a large extent led by lawyers) now grates against the official law.[7] Recent discussions about development and globalisation have highlighted the need for more understanding of the economic, cultural and political influences on the development of law (Ewald, 1995: 489). These discussions seem to me to make assumptions about the role and relevance of "law" which remain to be tested, and which beg questions we are perhaps not yet in a position to answer.

It is, however, a problem of this narrative chat it obscures our lack of real knowledge and understanding of law and society in South East Asia, which has been hampered by a comparative lack of empirical socio-legal research; the "nomic din"[8] of South East Asia's legal pluralism; and the apparent lack of coherence or unity of the legal culture and legal tradition in the region (historically speaking) when compared with "Europe" or "the West". The fundamental conceptual problem confronting those working on law in South East Asia is that the conventions of comparative law are often inadequate to convey South East Asian legal reality; what comparative law therefore lacks, to my mind, is a suitably flexible and sophisticated grammar of discourse. This lack renders a complete account of law in South East Asia extremely hard in practice to formulate; one is left with the bare possibility of attempting the kind of "thick description" (Geertz,1973) which might satisfy the post-modern sensibility better than the generalities of Weber and Maine, which now seem descriptive of a world that no longer exists. It could be seriously questioned whether comparative work on law in South East Asia could ever actually fit even into the broadest current notions of what comparative law can be expected to do; and by the strictest and most orthodox notions the idea is probably unthinkable. Yet globalisation and immediate practical problems of, for example, environment, economics and judiciary require such work more urgently than ever before.[9] Microscopic accounts are certainly possible and useful in their own way, but they either encounter the same difficulties as macroscopic accounts, or else simply avoid answering the big questions which require to be answered.

Another factor which works against large undertakings is the rapid social, economic and political change which is taking place in South East Asia, which amounts almost to a permanent state of flux. I commenced writing the original version of this chapter on the day (21 May 1998) President Suharto resigned his office, with students occupying the Parliament building in Jakarta, an event which will, quite probably, have a critical effect on the future of law in the entire region, but the nature of that effect is very unclear: as Zhou En-lai said about the French Revolution, it is far too early to say what effects such events will have. If the chiliastic references to, for example, the "Pacific century" and "Vision 2020" have been shown by recent events to be somewhat premature, the economic progress of South East Asia since the 1960s, as well as the current economic and environmental crises, have focussed the general gaze for the first time on law and the legal system. Two kinds of hypothesis or scenario have been put forward.

The first (the pessimistic?) is chat, because of legal pluralism and profound cultural differences, the notion that South East Asian societies can follow the West in embracing "law" (i.e., the Western concept of the rule of law) is misguided. The recent crisis, which has highlighted lawlessness (lapses in banking regulation, corruption, cronyism, abuses of power, and gross and continuing human rights abuses on a wide scale, especially in Indonesia and Burma) is a clear indication of this. The ostentatious rejection by some politicians (Lee, Mahathir, Suharto) of "human rights", "democracy" and "the rule of law", and the environmental crisis, are further examples tending to establish this thesis. Attempts to "receive" or transplant Western-style laws and legal system (or at least Western conceptions thereof) have failed. Legal systems diverge because cultural factors are determinative, and in South East Asia such factors grow like the undergrowth of a tropical rain forest. The future presents a bleak prospect.

The second (the optimistic?) is that, give or take a few differences in the field of personal law, where legal pluralism has been contained, South East Asia had the same kind of laws as Western countries even before the advance of the "tiger" economies; its laws operate largely in expected ways, and South East Asia needs more of them, as the recent crisis shows. The advance of notions of good governance and democracy; the consolidation and reform of law and the legal system, and attempts to deal with specific problems such as the economic, political and environmental crises, are further examples tending to establish this thesis. Legal systems converge because global economics and international politics are determinative, and the fronds of these are growing like the undergrowth of a tropical rain. forest. The future presents, in the long term, an excellent prospect.

This chapter outlines a tentative view somewhere on the spectrum which these positions span, but tending towards long-term optimism, although not necessarily along the lines of simple convergence. Whichever thesis is more nearly correct, what is clear to me is that a far better understanding of law in South East Asia is required, and that socio-legal and comparative-law theory can in fact be of some help, at least in starting to acquire that understanding, but ought also in turn to be affected by it. Legal transplantation is of course fundamental to this objective.

I perceive at this point a dichotomy in the perception of comparative law which is material to the making of any progress. One view of comparative law (the prevailing view, here somewhat exaggerated to make for clarity) is microscopic, eurocentric, rule-based, concerned with private rather than public law, is legislative and integrative in purpose, and assumes a degree of commonality and convergence in that which is compared. However, the view which seems to me more useful in relation to South East Asia at the present time sees comparative law, on the contrary, as general, pluralistic, context-based, recognising no distinction between public and private law, being intellectual and contrastive in purpose, and assuming differences and probably divergences rather than similarities. Detailed legislative work also needs doing (for example on the environment and intellectual property), and the gaps in the critical understanding of context are being supplied as the greatly underrated, even if threatened, academic sector in South East Asia grows in size and scope, impelled by the necessities of international law, trade, and diplomacy. Thus "applied" comparative law (the term I use here to describe the first kind of comparative law) is in principle possible if only we can negotiate our way through "theoretical" comparative law (the second, and my preferred mode for South East Asia). It will thus be apparent that I take a broad view of comparative law. I believe that one gains in understanding by comparing that which differs rather than that which is similar.

Although there is some force in the notion that applying to Asia theories developed in the West opens a Pandora's box, it is in my view better to see and try to understand what flies out rather than hastily to replace the lid. South East Asian scholars themselves, from whom we may be justified in taking a few cues, have no inhibition in studying the application of what we call (Western) "legal theory" or "jurisprudence" to South East Asia, and are also developing their own refinements, returning the compliment by analysing Western law according to what they perceive in general terms to be given premises.[10] These activities are seen ultimately as serving the cause of "development", and are by no means inconsistent with non-western views of scholarship and the function of jurists. Currently, however, it seems to me unmistakeably true that South East Asian scholars themselves are (only) now beginning to take a real interest in comparing legal systems and cultures within the region.[11]

Having built up a brief sketch map of South East Asian comparative-law scholarship, I wish to proceed by outlining the extent, nature and results of legal transplantation, and the relationship between legal culture and "received" law.

LEGAL TRANSPLANTATION IN THE HISTORY OF SOUTH EAST ASIA

The extent of legal "reception" in South East Asia is truly staggering. I am impelled to set out some basic facts. It is appropriate to think of law in South East Asia geologically, as a series of layers each of which overlays the previous layers without actually replacing them, so that in places, due to tectonic shifts, the lower layers are still visible, although not perfectly distinguishable from each other.

The orginal or bottom layer of South East Asian law is that now referred to as "aboriginal" or "native" custom, still extant and recognised by the official legal system in, for example, the Borneo territories of Malaysia and Indonesia; southern Philippines and Irian Jaya.[12] This is distinct from the developed forms of custom such as Burmese or Malay custom, which were either imported with the movement of people or were developed somewhat later. This latter type of custom forms a second layer, which, again, is still extant and important in many contexts.

The medieval Sri Vijaya and Majapahit empires were characterised by Hindu and Buddhist influence; Buddhism and therefore Buddhist law are still extant in continental South East Asia (Burma, Thailand, Laos, Cambodia, and Vietnam: Huxley, 1996). Hindu legal influence spread through Burma and Thailand to Malaya and as far as Java and Bali, and had a profound conceptual effect on customary law (adat) as it evolved in the territories now forming Malaysia and Indonesia; it also had considerable influence on Thai and Burmese law. Even now Hindu custom forms the basis of personal and religious law in Bali.

Adat itself is manifest in several varieties throughout the Malay world. In some territories it was reduced to writing, for example in codes such as the Ninety-nine Laws of Perak, the Undang-Undang Melaka (Laws of Malacca) and the Undang Laut Melaka (Maritime Laws of Malacca). The writing down of adat, its institutionalisation by Dutch scholars who resolved it into 19 adat-areas, resulted in its decline as a form of living law. It is still enforced in the courts of Malaysia and Indonesia as personal law in certain respects. In Malaysia the law applied in the Syariah Courts to the division of matrimonial property (harta sepencarian) is pure adat, owing nothing to Islamic law, which in fact, from an orthodox point of view, completely contradicts it. The same applies to the matrilineal Minangkabau law of land tenure and succession in West Sumatra (Indonesia) and Negri Sembilan (Malaysia).

In medieval times Islamic law, alighting in Aceh in Northern Sumatra through the agency of Sufism and Arab trade, found fertile tropical soil there, in Malaya, and throughout Indonesia and parts of Thailand and Philippines. The first ruler of Malacca, Parameswara, converted from Hinduism to Islam, adopting the name of Iskandar Shah. The Malacca Empire developed a code of international shipping law and a civil and commercial code: its law was heavily Islamic but with extensive Hindu and adat influences. Islamic law still flourishes in Malaysia, Indonesia and Brunei, which have a Muslim majority, and is also officially recognises in Singapore, Thailand and the Philippines, which do not. In all these countries Islamic law represents a separate sub-system of personal law, enforced by separate courts, as well as affecting, in some cases, aspects of criminal, commercial and constitutional law. Yet none of these States is institutionally "Islamic": in fact this is precisely the complaint of Muslim jurists. The Islamic legal tradition is still developing at the interface between doctrine and modern technology, the globalisation of commerce and culture and the need, in South East Asia, to accommodate other legal traditions. If one seeks an example of legal transplantation to exceed in scope and implication the reception of Roman law in Europe, the reception of Islamic law throughout most of the middle belt of the old world during medieval times presents a vast and as yet largely unstudied example, in socio-legal terms, of the victory of legal doctrine over local knowledge. Unquestionably this victory, still by no means complete, can be seen in South East Asia.

Attempts at codification of local law took place in Burma, Thailand and Vietnam at certain periods. The Thai Law of the Three Seals, passed in 1805, one year after the French Code Civile, offers a fascinating synchronistic contrast between French revolutionary legality and wary Thai conservative legality (Huxley, l996). The Thai law consolidates rather than reforms the law, and was clearly not for public, as opposed to official, consumption. The writing down of law in South East Asia has not necessarily implied dramatic legal change.

The Chinese Confucian and legalist traditions are evident in Vietnam, which was influenced by the great Chinese imperial codes, and the gravitational Chinese presence has influenced law and legislation throughout the region, principally in Thailand. Chinese customary law was recognised in British colonies, i.e. the Straits Settlements (Penang, Malacca and Singapore), Sarawak and North Borneo (Sabah) during the nineteenth and early twentieth centuries, and in the Dutch East Indies. Singapore did not abolish Chinese custom until 1961 and West Malaysia only in 1982 (and in both cases only prospectively, of course). It is still enforced by the courts in Sabah and Sarawak, the only jurisdictions other than Hong Kong SAR which do so on a continuing basis. Confucianism is also invoked as an explanation and justification for the development of new legislation in Singapore, for example to enforce filial piety and correct social behaviour.[13]

From 1500 colonialism brought the Portuguese and Spanish civilian traditions to Malacca and Catholic East Timor, Flores and Philippines. The English common-law tradition, with a heavy dose of the great Anglo-Indian codes, was "received" in the Straits Settlements and later in Malaya, Brunei, Sabah and Sarawak, while its American cousin acquired status as a permanent legal influence throughout the twentieth century in Philippines, and continues to enjoy influence by means of legal transplantation throughout the region. The French civilian tradition was imposed on Indo-China and also influenced Thailand; Roman-Dutch law was imposed in Indonesia, and still forms the basis of the Civil Code there as well as influencing many other areas of law.

In terms of the inevitable conflict between Western and local law, there were different approaches. The Dutch adopted a "law-population" approach to legal pluralism in Indonesia, applying different laws to Europeans, Indonesians, Chinese and "foreign Orientals", and working out a complex law of conflicts to deal with cross-population questions: The British adopted a "modification of common law" approach in their territories, embracing broad recognition of Islamic law and Hindu, Chinese and Malay custom. The French approximated Indo-Chinese law as nearly to French law as they could.

What this summary reveals, if it is correct, is that inside the provisional concept of "South East Asian law" lies, as a result of the historical experience, an accretion of layers of law and legal culture, as distinct from a mere "progression" from one conception of law to another (see, e.g., Yasuda,1993). Legal historians have used the concept of "legal worlds" (notably Hooker,1975) to make sense of the South East Asian nomic din. This helps to explain much, but obscures the extent to which South East Asia has succeeded in constructing syncretic modern legal systems from these different legal world-views. In other words these systems are certainly mixed,[14] but perhaps no longer correctly simply described as pluralistic, in that they have, to a greater or lesser extent, become unified systems in which the various legal worlds have melded together and influenced each other; to use another of Geertz's expressions, they embody a "working misunderstanding". However, it is clear that the framework, at least, in which this has occurred is unvaryingly European in origin and inspiration, even if the actual content is still pluralistic in nature (Tan Poh-ling, 1997).

Legal transplantation was by no means completed with the end of colonialism in the 1950s and 1950s. In the 1960s communism brought socialist law on the soviet pattern to Indo-China. Since 1945 American or Anglo-Indian constitutional law has been transplanted to Malaysia, Singapore and Philippines; statist economic-development law (law as "mature policy"), drawn mainly from European inspiration, has been crucial in the orchestration of economic growth and social progress in most of the region, especially in Singapore and Malaysia, but also Indonesia, Thailand and Vietnam. More recently "globalisation law", especially the law of international business and commerce, has proliferated. Some post-independence laws seem to be the result of purely endogenous development or of legal instrumentalism: Singapore provides some striking examples (Phang, 1991). Increasingly the legislative agenda is dictated by international law and international business, for example in fields such as intellectual property, banking, and environment (Teubner,1997).

To sum up this discussion, every kind of religious or secular law or source of law; every kind of dispute-resolution process; every kind of constitution and law-making process; with a few extra ones arising out of the incessant problems of legal conflicts, has been evidenced in South East Asia. Every kind of legal "reception" has occurred.[15] In most of South East Asia, and all of maritime South East Asia, many of these traditions have lived side-by-side in a kind of pluralistic abandon. There is, in a traditional sense, no content or structural logic to the term "South East Asian law", and thus law is subservient to several legal cultures which are exogenous to the region or at least have their origins outside it. Culture itself is almost impossible to nail down, but is found on occasion to contradict law rather than infuse it with legitimacy. These contradictions lie at the heart of the current political and social conflicts in South East Asia. In a sense the great battle-for-legality which is now being played out across the region puts in question the thesis that legal transplantation occurs irrespective of culture, and one might conclude simply that one ought not to conclude until the battle is over. However, the fact that there is a battle, and that South East Asia has been grappling with the problem of legal transplants for hundreds of years, is indicative of the general success rather than failure of legal transplantation.

For a post-modernist South East Asia appears to be a great gift. The overarching grand narrative seems impossible; one's view depends entirely on one's location, interest or heritage. One could doubt the concept not only of "South East Asian law", but even of "South East Asia" itself: both can be seen as artificial constructs for the convenience of Western scholars, the profits of publishers of world atlases or the vanity of vacuous political speech-makers.

It is tempting, and in some quarters even popular, to view even this technicolour Malaysian Tourist Board-style view of South East Asia as an exaggeration, disguising the practical absence or irrelevance, or perhaps the "decline" of "law" in the Western sense, at least in certain contexts. It can be argued that the very pluralism implied in the word "law" in South East Asia entails a legality which cannot work, and possibly cannot even be conceptualised. This is a description I would reject as doing serious injustice to the creativity and syncretic tendency of law in South East Asia. I will attempt to argue that there is a concept of South East Asian law, but I have not, I think, underestimated the scale of the problem. Before doing so, I wish to develop a single example as an illustration of the development of the syncretic tendency of law in South East Asia.

SOME COMMENTS ON LEGAL CONFLICTS AND "RECEPTION"

The extent of conflict between "indigenous" and "received" law is difficult to map over so many territories, cultures and areas of law. There are several aspects to it, some of which I would like to illustrate by an extended example rather than the kind of considered appraisal which space precludes.

In 1908 the Courts of the Straits Settlements in Singapore decided a spectacular case of some import for the Chinese community. A Chinese merchant, Mr Choo Eng Choon, had died intestate, and the case concerned the distribution of the one-third of his estate due to the surviving spouse. It arose because there were six claimants, and the courts had to decide whether all or any of them were entitled to a share as the "wife" of the deceased. The case is thus universally known as the Six Widows Case.[16]

The matter was framed in this way because the "reception" of English law, which the courts had already decided to have occurred in 1826 by a Charter of King George IV, had included both common law and statutes of general application (Phang,1991), which latter category included the Statute of Distributions of 1670. Amazing as it may seem, the court was obliged by precedent to consider the application to a Chinese polygamous community in twentieth-century Singapore of a statute designed for a Christian monogamous marriage system in seventeenth-century England. In doing so it had power to modify English law in its application to the case.

Having ascertained Chinese custom on the matter, which dealt extensively with the distinction between primary and secondary wives (or concubines), the court decided that Chinese marriages were potentially polygamous in nature and that five of the "widows" were in fact wives of the deceased, there being no distinction between them of the kind indicated by Chinese custom, and they took shares accordingly, that is one fifteenth of the estate each.

The case illustrates a number of relevant points.

First, English law was, as a matter of policy, as the general law, imposed on all communities irrespective of their expectations. This contrasts with the Dutch policy, described above, of defining "law populations"; under the latter this case would have been dealt with as a matter of Chinese custom.

Secondly, exceptions were made by way of modification, but this modifica­tion did not necessarily mean that the community affected would be dealt with according to its own law (although that was the effect in some instances, especially with the Muslim community and Islamic law). It should be noted that the law applied in this case was actually neither English nor Chinese. It was a "Eurasian" law embracing some kind of practical expediency or compromise.

Thirdly, modification was sometimes problematical. In addition to the constraints of precedent and colonial policy, there was enormous difficulty in finding out precisely of what custom consisted. The courts complained so much about this problem of cultural epistomology that the government set up a Chinese Marriage Committee with the intention of finding out the facts and recommending appropriate legislation. It reported (in 1924) so much variety of practice that no basis for defining custom could be found; the courts were forced to water down the requirements of a valid marriage to simply "intention", and this was applied eventually to other non-Chinese communities, and to mixed marriages.[17]

Fourthly, customary law was not necessarily better than the Eurasian law invented by the court. Under Chinese custom there were no female property rights and no rights of testation (had Choo made a will his intentions would have been observed; this freedom was in fact accorded to all communities, even to Muslims, who have no testamentary rights under Islamic law). To that extent_. the modified imposed law may well have been more popular among women than custom: there is in fact clear evidence that Chinese women in the Straits wanted polygamy abolished but that men did not. When the community attained general franchise and assumed its own legislative power with self-government in Singapore from 1958, it abolished customary law with some relish and introduced, by the Women's Charter of 1961, and in the name of modernity and development, the marriage and divorce laws of (none other than) the outgoing British colonial power. Female franchise, introduced in 1959, may well have been the determinative factor. China itself had abolished customary marriage some 30 years earlier, and the Chinese communist government had enacted an equal-rights Marriage Law in 1950. The eventual place at which the marriage and divorce law of Singapore settled is more properly described as English than Chinese. An analysis of development of family law in Malaysia, Indonesia and Vietnam would reveal a similar solution, during a similar period, to the same problems.

When it comes to Islamic law, however, the picture is quite different. Islamic law experienced demotion in the Straits and the Malay States from general law to personal-law-for-Muslims, and represents the largest single remaining grievance in connection with the colonial law (see Ahmad Ibrahim,1965). In Malaysia and Indonesia there is a body of opinion that wishes to rectify this by restoring the syariah (sharia) to its former glory (or what is perceived to have been its former glory); so far this has taken the form of harmonisation and rationalisation of the Islamic legal system in Malaysia, which is state rather than federal law (Horowitz, 1994: 233, 543). Still, the advent of an Islamic state seems very far away, and would break the interethnic contract on which Malaysia is based (Harding, 1996); it would be impossibly controversial in Indonesia too, as well as in conservative Brunei. Although it is commonly conceived that personal law is the kind of law which is closest to culture, and therefore especially resistant to transplantation, it is remarkable that in most of South East Asia and in most communities a monogamous marriage system has replaced polygamy, and as a matter of legal, not simply cultural, change (indeed legal change generally came first). Even among the Muslims of Malaysia and Indonesia polygamy is being strenuously discouraged by means of legal technicalities, and many of the most active women's rights groups are Muslim (such as the Sisters in Islam) or led by Muslim women.

I have deliberately chosen in this example an area of law which ought to be profoundly influenced by culture and custom, and where foreign law ought to be irrelevant to social reality. It should therefore be a good test of the relationship between law and culture (Nelken,1996). The practical result in Singapore has been extensive social and legal change. Certainly social change commenced before legal change. But legal change became essential to the reform of social mores for all the non-Muslim communities, in terms of women's rights, the political system and economic development (most made-in-Singapore electronic manufactures came to be put together by enfranchised, monogamous, female hands). I would also observe that two misconceptions about this matter should be put aside. The first is that Chinese communities are or were non-litigious, and were unwilling to use the "foreigner's court" to deal with sensitive family issues; in fact, to judge by the reported cases alone, it seems that the Chinese made extensive use of the courts in those areas of law which invited litigation. The second is that whatever the law may or may not have said, social reality was different. In fact the mutual effects of law and social mores in this area are complex and autogalvanic: changes in the law spark changes in practice, which in turn spark changes in the law, so that it becomes somewhat irrelevant to ask which came first. The usual pattern of marriage these days among Singapore Chinese is to choose one's own partner, register the marriage for housing purposes, and hold a marriage ceremony only later, according to some kind of modified traditional custom pertaining to the relevant dialect or groups) or social status: only then are the parties regarded as "married". To this extent it would be more correct to conceive the situation as a compromise between law and custom, rather than as a rout of custom (Tan, 1999b; Friedman, 1957).

From all this I would draw the conclusion that the problem of imposition of European law is more complex than it seems. Granted that the subject populations resented the imposition at the time, it is remarkable how much the legal culture has adjusted to it and even embraced it over time. In Indonesia the continuance of Dutch law was favoured over the reconstruction of a legal system based on Islam or adat because the latter two options raised serious problems of consensus and contradicted the revolutionary desire to forge a modern nation (Law, 1965: 282). Thus the remarkable degree of retention of colonial law applies as much to the worst (for example, internal security and societies law, or labour law) as to the best (for example, planning law) parts of the imposed law, and of course the imposed law was not necessarily the same law or to the same effect as that applied in England or Holland or France. An exception is commercial law, where imperial policy required the application of the purest English or Dutch law, at least for international transactions. In Singapore and Malaysia English commercial law still applies, although largely replaced by local statutes to similar effect. Singapore finally abandoned unfettered application of English commercial law only in 1993, a remarkable 20 years after the UK joined the European Community.[18] Much the same picture emerges if one looks at Philippines, Thailand and Vietnam.

It is interesting to observe from these examples that the general retention of colonial law is not confined to organic laws to do with courts, the legal profession, procedure, and so on, nor to commercial laws, where international trade could be adduced as an explanation. It extends to the very areas where one would expect considerable divergence; viz., the personal laws of marriage, divorce, succession and property. Since the independence of the South East Asian legal systems, personal law has become more, not less, like European law; and change has been driven by the same factors which drove personal law reform in Europe: change in the relevance of gender, and economic change, in particular. In fact, in most respects the freedom of legislative choice which followed from independence has not resulted in the kind of significant development or localisation that one would expect.[19] As a general rule of thumb, one can say that the more public law is, the more it has diverged from Western law; but the more private or commercial law is, the less it has diverged. To take Singapore again as an example, constitutional law, criminal law and labour law have in general diverged from Western models; contract law, intellectual property law and family law have not (Phang, 1991). To put it another way, the closer law comes to government, the more it diverges.

In terms of legal-transplant theory, it seems as if Watson's theory of legal transplantation, according to South East Asian experience, is made out to a remarkable extent, subject at least to my remarks above about continuing conflicts. In other words, law in South East Asia has evolved out of legal transplantation, which has, on the whole, been successful, if judged by the criterion of whether the law has stuck or come unstuck. In South East Asia the idea that the history of a system of law is largely a history of borrowing of legal materials from other legal systems, as maintained by Watson, Pound and others, is proved remarkably accurate. Whether it proves that legal ideas can be transplanted, as Watson (or at least "strong" Watson (Wise,1990)) has it, irrespective of cultural factors, is, however, problematical: I would rather say that the serial cultural absorption and accommodation which have characterised much of South East Asia's legal history actually accounts for the success of legal transplants, and that this itself is a unique and unifying cultural fact. The truth of Watson's thesis rather depends ultimately on what is meant by "can". If it means that the idea of a law is transplantable ceteris paribus, then it is not a very interesting theory: if that it is transplantable ceteris non paribus, then it is revealing, if not entirely true, in South East Asia.

RECONSTRUCTING SOUTH EAST ASIAN LEGALITY

Let me now return to the questions raised at the beginning, and attempt, in the light of what has been said about the fundamental question of legal transplantation, to reconstruct the notion of South East Asian law. I propose to start by identifying certain common factors which tend towards identity.

The first is a fact of international relations: ASEAN. This organisation consists of 10 nations (Burma/Myanmar, Cambodia, Vietnam, Laos, Thailand, Malaysia; Singapore, Indonesia, Brunei and the Philippines). It is far from being an incipient Union on the European pattern.[20] Still, it exists because of certain common economic and strategic interests. It is already creating a certain degree of commonality in the legal sphere. ASEAN law cannot be studied in the law schools of South East Asia in the same way as European Union law is studied as a core subject in Europe, but it can be, and is, meaningfully studied nonetheless.

Secondly, there is a common experience of economic development, although this should not be exaggerated: Singapore is one of the richest, Burma one of the poorest, nations in the world. Most of these nations have experienced conditions of rapid economic growth under state orchestration in recent years, and suffered somewhat similar conditions of economic collapse in 1997-1998. The point is that these nations see themselves as an actual or at least potential economic bloc, and, while there are some obvious growth differentials, the path of their trajectory is seen as being ultimately similar, even if the precise economic causation is different.

Thirdly, there is an attempt to create a common international front on human rights issues and democracy.[21] Again this should not be exaggerated. Thailand and Philippines are perhaps genuine democracies, and Indonesia appears to be heading in this direction. Singapore and the Philippines have been antagonistic in this field, standing for "discipline" and "democracy" respectively. However, in general most South East Asian countries appear at present to prefer a semi-authoritarian form of government, whether of a populist/authoritarian (Malaysia, Indonesia, Singapore) or socialist/market type (Vietnam, Laos), although this may of course change somewhat, depending on events in Indonesia, Malaysia and Burma; and Thailand's ability to survive economic and constitutional change.

Fourthly, in legal terms most of these nations have accommodated legal pluralism in some fashion, and have managed to create at least a half-viable pluralist legal system based roughly on a European-derived framework, resulting in the syncretic type of legal system described earlier.

Fifthly, most South East Asian States are artificial ones which have proved remarkably successful despite their recent and somewhat experimental origins (Anderson, 1983). The most impressive achievement of South East Asia since 1945, to my mind, is not its economic growth, which certainly does impress even allowing for current difficulties, but its construction of state stability in a very dangerous environment. South East Asia has seen wars, colonial and ideological; genocide in Cambodia, Burma and Indonesia; and severe repression. Many of its States are purely artificial (Malaysia, Indonesia, Singapore) or presumptively too large and ramshackle (Indonesia, the Philippines, Thailand), or too small (Singapore, Brunei), or too damaged or fragmented (Vietnam, Laos, Cambodia, Burma) to survive and flourish. Yet they have largely done so, against enormous odds, and in some cases social and political stability has been sufficient to provide a springboard for significant economic growth.[22] Indonesia and Malaysia are remarkable examples of this phenomenon. Almost half of all Malaysian citizens are of recent non-Malay, non-Muslim, immigrant origins, who tolerate reverse discrimination in favour of the majority community in many fields. Indonesia has built a nation having a minority language, Malay, as its national language. Malaysia has 178 officially defined racial groups; Indonesia is unable to put a figure on its ethnic diversity, but there are 200 racial groups in Kalimantan alone. Religious and linguistic indices produce a similar result.[23] Something similar can be said of the other South East Asian nations.

Sixthly, let us pose the question of culture. Although culture is very diverse in South East Asia, there is perhaps a common element among Buddhist, Taoist, Confucian and Hindu cultures in their general world-view or view of nature, their regard for the wider family as the natural unit of society, and their placement of community above the individual: all of these have profound implications for law. In many respects Islamic religious culture falls into this pattern, although in others it is more "Western" in its belief-pattern-like Christianity it is more yang than yin. Attempts at inter-civilisational dialogue in South East Asia are not lacking in justification or, indeed, prospects.[24] South East Asia has seen times of utmost cruelty: yet its general dislike of open confrontation, its respect for authority, and its easy digestion of foreign cultures are its most obvious common historical characteristics. The degree of commonality in the region exists in spite of great, but perhaps ultimately superficial, cultural differences; it is the cultural similarities which are now becoming more obvious, even though the process of accommodation sparks conflict, sometimes with desperately problematical results, such as in Burma, Cambodia, East Timor, parts of Borneo, Indin Jaya and in the Chinatowns of several Indonesian cities.

Culture in South East Asia is almost impossible to grasp due to its diversity and its dynamic character. In most respects it seems to me that modern South East Asians in the era of the Internet believe in and want the same things as most others on the planet, and are similarly confused by the conflicting choices presented by economic growth.[25] In so far as there are factors which militate against legal unification, these factors seem to me likely to be political and socio-economic rather than purely cultural. The idea that culture inhibits legal transplantation begins to look largely like an issue of the colonial period, or a smokescreen to avoid international legal developments, rather than a live issue. It may be that institutional failures and successes can be explained in cultural terms, but little work has been done on this, and the economic crisis seems to indicate that the level of development of institutions is the crucial factor; I would select public administration, the judiciary and the civil society as the most important institutions in this context.

Nevertheless, it is a common conception (to which I have probably contributed myself: Harding, 1996), reinforced by the present crisis, that the legal systems of South East Asia are in a mess, and that it is precisely "legal culture" which accounts for this; that culture works against rational legality and a concept of justice based on rights. Microscopically, this is correct in many respects; on a macroscopic view, however, I feel that it is inaccurate as a generalisation.

In spite of the rampant pluralism, South East Asia works better than many other regions of the world. A very significant reason for this is the cultural toleration which has allowed almost every world-view to be accommodated in the South East Asian psyche. To a great extent this toleration has extended into the legal world; just as a street in Malacca houses a Buddhist temple, a Hindu temple, a mosque and a Catholic church, so the Malaysian legal system caters very adequately, in a way in which European legal systems clearly do not, for several varieties of law, even providing special courts in Sabah and Sarawak to administer "native" law to the indigenous population. Perhaps "in spite of rampant pluralism" (above) should actually read "because of rampant pluralism". It is true that a Malay peasant, a Chinese shopkeeper and an Indian lawyer in Malaysia, or even a foreign investor, may lack complete confidence that the High Court will protect their rights, but in that respect their confidence in law and the legal system is probably roughly the same as, say, their American or Japanese equivalents.[26] To an extent, legal pluralism is contained only because the rule of law offers some hope that the rights of minorities will be observed. To the extent that this is not the case in Indonesia or Thailand or Philippines, chat is, I suggest, again, a reflection on development rather than pluralism, and legal reforms are being driven accordingly.

Legal pluralism, like colonialism and religion, has in its turn been digested by South East Asia, not merely ingested, and South East Asian legal systems are in fact, if one takes a long view, approaching a condition of syncretism. Both Malaysia and Singapore are able to advertise openly for foreign direct investment on the basis that they have "a reliable legal system": Singapore's legal system is claimed to be the most effective in the world (if one discounts cases with a political element this is quite plausible). The Indonesian legal system is highly ineffective, and the Thai somewhat ineffective, judged by Singapore's standards, but the causes are institutional rather than jurisprudential. Law, even in a restricted Western sense of the term, is hardly any longer a foreign import which grates against the culture of the region. Vietnam is probably the country where it grates most, but even there massive improvements have been made in a short space of 10 years, and the project of law reform is embraced as eagerly as the determination not to allow it to be an advance guard of US domination (Sidel, 1994).

To illustrate this last point, let us take an unfavourable example, the phenomenon of "crony capitalism" or "money politics". It is true that an important factor in economic growth, even as far back as the mid-nineteenth century, has been that of overseas Chinese capital acting in concert with local politics. This relationship can spell corruption, or it can spell co-operation (as in Malaysia's bumiputera equity-sharing policy, formally sanctioned by the Federal Constitution at Article 153). Whether such things are "lawful" or not has been seen as less important than whether they are beneficial. To the extent that they now fall within changing popular conceptions of "corruption", legality has moved forward, and the change too is designed to save the social fabric from being torn apart (dramatically so in Indonesia). Inter-ethnic co-operation and respect are actually far more common than race riots in South East Asia; and this has always been the case.

Take next "constitutionalism". The last four years have seen Thailand adopt a constitution whose checks and balances would make the average Clinton White House staff quake at the knees, and the next few years may well see Indonesia move, kicking and screaming no doubt, into the modern age of "law and governance", perhaps even, eventually, with something like an American-style constitution. In the Philippines it is possible to publish a student casebook on constitutional law which mixes American and Philippines Supreme Court cases indiscriminately without any implication that the author is incompetent or naive.

The next age of constitutionalism in South East Asia can foreseeably draw upon the reserves of religion and communitarian values to enforce respect for an endogenous version of "human rights", and for the bio-diversity-rich environment, and provide a framework of political toleration and greater executive accountability to the wider community. Even Malaysia[27] and Singapore, which are seen as having diverged from the original "Westminster" constitution, have strongly entrenched constitutional principles which partly preserve the colonial constitutional traditions and partly correspond to the evolving political community. The Malaysian Constitution melds these traditions with the entrenchment of an interethnic social contract which secures social stability but restricts freedom of speech (Handing, 1996; Tan and Thio, 1997).

For these reasons I conclude this section with the thought that perhaps there is an emerging concept of South East Asian law, and that there is cause for some optimism about the efficacy of its content and institutional framework in the future. The role of legal transplants in the process of construction of South East Asian law in the twenty-first century is and will continue to be absolutely central, as it always has been, to the invention of legal systems in South East Asia.

CONCLUSIONS

My main conclusion is simply that, precisely because of the role of legal transplantation, South East Asia is an important and promising locus for comparative socio-legal study. The popular idea, encouraged by the Western media, that there is no law, or at least no "rule-of-law", in South East Asia does not carry any conviction when one considers the central position of law in the construction of states, in economic development, and in reformasi-type debates in South East Asia. In terms of a concept of South East Asian law based on a completely coherent view of legal transplants, it would be hubristic to suggest that this chapter has discovered one. Nonetheless, I would hope that some useful pointers have been provided, and at least a framework for thinking about or approaching the topic.

An interesting conclusion for comparative lawyers is that in broad terms the Watsonian thesis that the idea of a law can be readily transplanted (Watson, 1974; Wise,1990) is, in relation to law in South East Asia, clearly made out. The strictures of Montesquieu and Kahn-Freund (1974: 1) do not in general apply in South East Asia, and in fact their theories are in my view actually disproved by the South East Asian experience. This is not the same as saying that all "repotting" of legal ideas will result in instant blooms: South East Asia shows that, under conditions of legal pluralism, absorption of legal ideas, even imposed ones, takes place over time, slowly and even painfully. The evidence of successful legal transplants of almost every conceivable kind is powerful. This does not of course mean, as I have been at pains to point out, that South East Asia does not have any legal culture or tradition of its own.

A further general conclusion I would like to draw is that it is not the case that personal laws, being based on religion and traditional values, are less transplantable than commercial or property laws. Values change even in societies where, as in South East Asia, religion is popular, and are not, as it were, abandoned at the reception desk when entering the office or factory; knowledge concerning "Asian business culture" and commercial practice is eagerly sought after by shoppers in airport-lounge bookstalls. In the case of divorce law, for example, modernisation has dictated what was in any case inevitable: the introduction of grounds of divorce equally available to male and female and a monogamous marriage system for non-Muslims, and, in practice at least, for Muslims too. It is even possible for cultural values to be changed by the law: this happens quite frequently in Singapore, where the law is seen principally in instrumental terms.

"Western" law has been digested by South East Asian societies. A comparison of any of them with China will reveal the extent of this success.[28] Whether this is wholly desirable or will even continue is another question. On the whole it seems to me that Western law has been successfully modified to accommodate local needs; the severing (actually not by any means total) of Western constitutional law, labour law, social welfare law and the like indicates that "Westernistic»[29] describes the emerging legal systems better than "Western". I would in some ways actually prefer "post-Western"-indicating that Western law has had influence but that South East Asian law has moved on from that point, or will move on, to develop a regional identity within the broad framework of the evolving international legal regime. But changes in areas such as public and company law (for example, business regulation, "cyberlaws",[30] environment, investment, intellectual property) indicate that a degree of convergence with Western law is in fact taking place.

There are, however, contradictions between the success of legal pluralism and the failure to construct a sufficiently "legalised" or "modern" system of law; and between the assertion of "South East Asian" legal values and democratisation. The maturity of South East Asian legal systems can be glimpsed in the comparative success of law in Malaysia and Singapore. Within a generation the other countries, especially Thailand and Indonesia, may well have caught up with or even overtaken them. However, in spite of extensive legal transplantation, we should not expect the end result to be a mirror image of Western law.

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Engel, D.M. (1979) Law and Kingship in Thailand During the Reign o f King Chulalongkorn (Ann Arbor: Center for South and Southeast Asian Studies, University of Michigan).

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Geertz, C., (1975) "Thick Description: Toward an Interpretive Theory of Culture", ch.l of Geertz, C., The Interpretation of Cultures (London: Hutchinson).

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Geertz, C. (1993), Local Knowledge: Further Essays in Interpretative Anthropology (New York: Fontana).

Gullick, J.M. (1988) Indigenous Political systems of Western Malaya, rev. ed. (London: Athlone Press).

Harding, A.J. (1996) Law, Government and the Constitution in Malaysia (The Hague: KLI).

Harding, A.J. (1993) "Singapore", in Harding, A.J., and Hatchard, J., (eds), Preventive Detention and Security Law: A Comparative Survey (Dordrecht: Martinus Nijhoff). Harding, A.J. (1990) "The 1988 Constitutional Crisis in Malaysia" 39 International Comparative Law Quarterly 54.

Hoadley, M.C., and Hooker, M.B. (1981) Introduction to Javanese Law (Tucson: University of Arizona Press).

van Hcecke, M., and Warrington, M. (1998) "Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law" 47 International Comparative Law Quarterly 495.

Hooker, M.B. (1978) A Concise Legal History of South East Asia (Oxford: Clarendon Press).

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Horowitz, D. (1994) "The Qu'ran and the Common Law: Islamic Law Reform and the Theory of Legal Change" XLII American Journal of Comparative Law 233, 543. Huxley, A. (ed.) (1996) Thai Law: Buddhist Law: Essays on the Legal History of Thailand, Laos and Burma (Bangkok: White Orchid Press).

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[1]  For some insights into this existential problem see Huxley (1996: 3 ff).

[2]  Such is the cultural bias of modem Western education that in Europe there are barely any specialists in SE Asian law and, apart from SOAS, University of London (currently two academics interested in mainland and maritime SE Asia), and Leiden University's Van Vollenhoven Institute (heavy concentration on Indonesia but not on the other SE Asian countries), there are virtually no full-time researchers. Given the importance and population of the region (about 480m in 1998, increasing to about 700m in 2010, and therefore far larger than that of Europe), and the extraordinary growth of law therein, this situation is quite astonishing. By way of contrast, according to an unpublished internal SOAS paper by Tim Barrett (1999), there are 221 academics in the UK alone specialising in the Victorian novel.

[3]  See, further, Tan (1999).

[4]  Geertz (1993: 226), said of Java, but it is true of S.E. Asia as a whole, that, "there is hardly a form of legal sensibility (African perhaps, or Eskimo) to which it has not been exposed". The legal families approach oddly persists in identifying a family called "Asian law" (see, e.g., van Hcecke and Warrington,1998; and Mattei,1997: 5; in fact it would be extremely difficult according to this type of classification to place any S.E. Asian legal system within it, if indeed it exists at all.

[5]  I am grateful to Andrew Huxley and Jan-Michiel Otto in unpublished papers for a number of the points made in this passage.

[6]  This work, naturally with altered perspectives, is still valuable and continues: the discovery of vast numbers of law texts in 'Thailand in rent years, for example, has resulted in a re-evaluation of Thai and Lao legal history (see Huxley,1996). Gullick's work on Malay history in the colonial period deals extensively with legal relations and developments. Lev's work on law and politics in Indonesia and Hooker's on legal pluralism in Malaya and Indonesia is exemplary, as is Geertz's and Anderson's anthropological work on Javanese law. Chiba's work generally on Asian customary legal systems probably also falls into this category. See the References for examples of the above.

[7]  No clearer example can be given than the running dispute (September 1998 to date) over the dismissal and trial of the Malaysian Deputy Prime Minister Anwar Ibrahitn. Sce also Lev (1978: 37).

[8]  The phrase is taken from Geertz (1993).

[9]  See, e.g., Mallet,1999; Norton,1998.

[10]  A good example, of many, is Phang (1991).

[11]  Recently, e.g., the Law Faculty of the National University of Singapore has introduced the study of Chinese and Indonesian law, a development almost unthinkable about 15-20 years ago. See also Jayasuriya (1996).

[12]  It is important to understand that this "layer" still causes considerable debate: it is not mere legal history. A conference entitled "Legal Pluralism: the Role of Customary Law in Preserving Indigenous Heritage" held in Kuching in November 1997 dealt entirely with contemporary issues of customary law in several parts of S.E. Asia. and Australasia.

[13]  Maintenance of Parents Act 1993.

[14]  Using the terms in which the Glasgow Transmigration of Law Project analyses legal systems (i.e., transitional, mixing, mixed jurisdictions, inter-related legal systems, evolving, continuous state, and redesigning state) S.E. Asian systems can be classified as "mixed jurisdiction" systems, if I have understood the categories correctly: see Orucu (199.

[15]  "Legal reception" is unpacked by Orucu into: transplantation, migration, transfer, transposition, expansion, imposition, imposed reception, grafting, implantation, re-potting, fertilisation, cross-pollenisation, reciprocal influence, admiration, imitation, inspiration, inoculation, infiltration, penetration, adoption, assimilation, disgestion, absorption, extension, incorporation, engulfment, naturalisation, nationalisation, integration, reception (global, partial, eclectic, structural, strategic), crypto-reception, parallel development (independent, co-ordinated, concerted), satelisadon, paralellisation, uniformisadon, confrontation, emulation, melting pot, and salad bowl (or perhaps rojak: a hot, spicy, culturally-mixed, Malay salad): Orucu (1996). All of these can be applied to S.E. Asia.

[16]  In the Matter of Choo Eng Choon, Deceased (1908) 12 SSLR 120; extracted in Leong Wai Kum (1990), 106, 275.

[17]  For further details, see Leong Wai Kum (1985).

[18]  Application of English Laws Act 1993.

[19]  A classic example is the way in which Lee Kuan Yew's Singapore adopted and extended the colonial internal security law, which Lee himself had previously consistently opposed and characterised as an oppressive instrument of colonial law: Harding (1993).

[20]  The Foreign Minister of the Philippines recently called for a popular revolt in Burma.

[21]  Since this was written, Indonesia has signalled its intention of signing the human rights covenants, and the People's Republic of China has done so; there is a loud demand for the same in Malaysia as part of "reformasi^°. The region is presently divided on this issue, with Philippines as the formost advocate of international human rights.

[22]  It is significant to my mind that the Indonesian revolution, confidently predicted in laic 1997 and early 1998, has not occurred; this is probably due to the enduring strength of the structure created in 1945.

[23]  I once witnessed a Sikh bus conductor in Penang addressing Malay/ Muslim and Indian pas-sengers. in a mixture of English and Chinese Hokkien patois.

[24]  A recent attack on the Centre for Civilisational Dialogue at the University of Malaya came amidst political crisis and student protests. Enrolment figures indicated that the concept of studying civilisation in the mode of civilisational dialogue was the most popular course offering the University had ever put forward. For a popular view on civilisational dialogue, see Anwar (1997).

[25]  A Singaporean writing in response to a recent discussion of stress described his fellow citizens (presumably the younger ones) as: "a confused lot, trying to find our identity in the shortest possible time. We want the best medical care, the fastest lifts . . . clean but cheap hawker food, car parks that are a hop, skip and jump away from our homes, good teachers, easy admission into universities, closely-knit families and fat pay packets. At the same time, we want to be footloose and fancy free, able to indulge in hedonistic lifestyles and epicurean tastes, and luxuriate in everything fun and pleasurable": The Straits Times (overseas edn.), 6 June 1998.

[26]  Ongoing debates about the need for a "Malaysian common law", which have produced little in the way of practical reforms, could properly be met by the response that Malaysia already has a common law of its own, i.e. a law which is accepted as broadly neutral as between its different ethnic and religious groups. The problem is not so much whether this common law exists, as whether it can be protected from political interference. The facts that the trial of Anwar Ibrahim (1998-1999) is (i) advertised by the Malaysian authorities as taking place under a "British" (not even "British-style") justice system, and (ii) the main focus of Malaysian popular discontent, underline this point. The claim is not very convincing: in a recent exhibition in London (Cities on the Move, June/July 1999, Hayward Gallery), Malaysian law was represented by artist Wong Hoy Cheong in his "Vitrine of Contemporary Events, 1998" by full-bottomed wigs and police batons made out of cow-dung: until recently this image would not have been very effective.

[27]  Notwithstanding Dr Mahathir Mohamad's temporary constitutional coup (September 1998), which goes far beyond all previous attempts at dictatorship in Malaysia's semi-democratic state. See, further, Handing (1990: 54).

[28]  I recall accompanying some judges of my acquaintance from the People's Republic of China to a meeting with officials of the Malaysian Bar Council. The Chinese enquired about the purposes of the organisation. The reply- "Well, of course, to protect human rights and democracy against Government interference"-was greeted with incomprehension and incredulity by the Chinese. This story indicates the extent of the gulf I have indicated.

[29]  The term is used extensively in Buzan and Segal (1998).

[30]  Annamai (1998: 6), shows that Malaysia's cyberlaws have been based on British, Singaporean, and US models.