Legal Traditions of Southeast Asia
[This piece is a short encyclopedia-entry introduction to legal traditions of SE Asia. The difficulty involved in writing it was in inverse proportion to its length. My students seem to appreciate it as an orientation exercise.]
INTERNATIONAL ENCYCLOPEDIA OF THE
SOCIAL AND BEHAVIORAL SCIENCES
2nd edition, 2015
Legal Traditions of Southeast Asia (86141)
By Andrew James Harding
Keywords: Law – tradition – indigenous –
customary law - pluralism – reception – development – South East Asia –
colonialism – nationalism – Asian values
Abstract: Just as pluralism is the mark of
South East Asia societies, legal pluralism defines much of South East Asia’s
laws and legal traditions. Indigenous legal traditions were based on customs
and religion, and government conformed to ideas of monarchy. Colonialism
brought in European law which still forms the framework of law in the region,
but it conflicted with local legal cultures and traditions. Nationalism brought
in authoritarian laws rather than a reversion to indigenous legal traditions.
Development has however led to some convergence of public and private laws.
This entry endeavors to describe the legal
traditions of Southeast Asia. There are obvious difficulties in identifying the
meaning of ‘legal tradition’ and even of ‘South East Asia’, as well as in justifying
their conjunction in this article. Generalisations
of any kind about law in such a diverse region as South East Asia, which is one
of most diverse regions of the world, are in fact hard to come by, unless legal
pluralism itself (evident in many parts of the world and even arguably in all
legal systems) may count as a defining set of norms. MB Hooker’s
ground-breaking work on legal pluralism significantly takes South East Asia as
its field of inquiry (Hooker 1975). The same author’s monumental two-volume Laws of South East Asia (Hooker 1986,
1988; also Hooker 1978) is similarly imbued with legal pluralism and provides
the scholarly bedrock for this subject. The concept of legal pluralism in the
sense of formal or official legal pluralism (see below) defines South East Asian
legal systems, not in the sense of being a theory consistently adopted across
the region as a matter of public policy or legal theory, but in the sense of being
the medium in which law necessarily operates at all levels given the diversity
of the societies in question.
i)
South East
Asia.
The term ‘South East Asia’ itself was
invented by the British navy as a means of dividing command during World War II.
There was, and still is, little to define the region in terms of law, and even
in terms of non-legal factors such as ethnicity, religion, political system, or
trajectory of economic development (Cambridge History of Southeast Asia 1992). Nowadays
one can at least point to a binding fact of geo-politics, namely the existence
since 1967 of the Association of South East Asian Nations (ASEAN), which from
the late 1990s has included the ten southern Asian continental states that do
not fall under ‘South Asia’ or ‘Greater China’. This list includes Cambodia,
Laos, Myanmar, Vietnam, Indonesia, Malaysia, Philippines, Singapore, Thailand,
and Brunei. [Some might also include Timor Leste, which obtained independence
from Indonesia in 2002, and which is likely to join ASEAN.] These countries perceive
that they share economic and strategic interests, and together they represent nearly
one twelfth of the world’s population. The existence of ASEAN has not thus far
created any discernible tendency for the region’s legal systems to converge
(ASEAN Law Association 1995), although the increase in intra-regional trade
resulting from ASEAN cooperation creates the possibility of some harmonization,
at least in the field of economic law; and the creation of a human rights
mechanism following the adoption of the ASEAN Charter in 2008 (Durbach et al
2009, Tan Hsien-li 2011) may ultimately produce some commonality in approaches
in that area too.
Given that ASEAN is a creation of the last
half-century we struggle to find commonalities in remoter history. Empires and
kingdoms came and went – the Sri Vijaya Empire in the 8th to 12th
centuries; the Khmer Empire in the 9th to 15th centuries;
the Majapahit empire in the 13th to 14th centuries; the Malacca
Empire in the 15th century. Individual kingdoms waxed and waned in
power - Vietnam, Siam, and Burma, for example – but no single power has ever
held sway over all or even most of South East Asia or left a distinctive cultural
or legal mark on the region (Hall 1981). Even during the years of colonial rule
the region was divided between Britain, France, the Netherlands, Spain and
Portugal, with Siam (called Thailand from 1939) remaining independent. The
experience of colonialism was common to the region but its effects tended to
divide rather than unite it. This is especially true in the field of legal
traditions (Hooker 1988).
ii)
Legal
pluralism and legal traditions.
South East Asia is not therefore a region
that associates itself naturally with any particular legal tradition or
traditions, unlike, say, the Islamic world or continental Europe. Indeed, apart
from the customary laws of the region’s many indigenous peoples, all of South
East Asia’s legal traditions are imported ones, having their origins outside
the region; there are in fact very few of the world’s legal traditions that are
not represented in some way in South East Asia. It is a region in which there
will be found a bewildering plurality of legal traditions in confusing
relationships with each other and with state law. Thus within the geographical
area described by each of these states lie complex webs of plural ordering
around ethnicity and religion (Harding 2001).
We are forced to confront squarely here the
term ‘legal tradition’. In South East Asia legal traditions in practice exist within
or outside the formal legal system. To a large extent the region’s states
practice formal legal pluralism in that the state recognizes forms of law other
than the law created by the state itself or continued in effect by the state,
for example when the colonial period came to an end (Hooker 1975). This might
seem to be a contradiction in terms, but for the fact that these other forms of
legal ordering pre-date modern formal state law and have been incorporated or
corralled within it – not always, but surprisingly often. Beyond this it is a
problem for both ‘legal tradition’ and ‘legal pluralism’ that there are many
forms of legal ordering that exist independently of formal state law, and there
is no obvious criterion whereby one would include or exclude them from
consideration as ‘South East Asian legal traditions’. This in turns raises the
perennial problem of how to define law itself. A state-centred definition would
draw a line at formal legal pluralism; it is often argued, however, that in
South East Asia, despite its extensive formal legal pluralism, this is
arbitrary and misleading (von Benda-Beckmann 2000). A community-centred
definition of law would include customs and practices even where these are not
endorsed by formal state law (Griffiths 1986); here it may be argued that ‘law’
loses any clear meaning, shading into potentially any form of social ordering
or social practice (Tamanaha 1993). The term ‘legal tradition’ itself suggests
a body of knowledge handed down between generations rather than simply found in
a library or some authoritative governmental source; this does not imply a
notion of simply how people behave, but a notion of behavior according to some
received normative framework. While an
expansive view of ‘legal tradition’ will be attractive to South East Asia
experts, it creates the enormous empirical difficulty of verifying which legal
traditions may be included. For present and purely pragmatic purposes we will
take state law to represent ‘law’, even though the official recognition or
non-recognition of some legal traditions in South East Asia is in many respects
quite arbitrary or controversial (see ‘Legal Pluralism’ for further discussion
of the ambiguity of this term). In adopting this pragmatic definition we have
to recognise nevertheless that there is an important other side to law that it
would be foolhardy to ignore if one wished either to understand, to apply or to
reform state law in South East Asian countries; or indeed to take the variety
of unofficial customary law
seriously.
iii)
Pre-colonial
law.
Before the intervention of colonial powers
from the fall of Malacca to the Portuguese in 1514, law in South East Asia was
based either on customs, on religion, or on codes, and often on all three. Buddhist
legal traditions prevailed in continental South East Asia (Huxley 1996), and were
used along with royal decrees and village customary dispute settlement systems.
Hinduism had influence across much of archipelagic South East Asia, replacing
Buddhism to some extent in Indonesia, and even to this day in Bali. Islam began
to be influential from the early 15th century, especially in the
Malay world of peninsular Malaya, Indonesia and Mindanao in the southern
Philippines. Muslim communities are, however, spread across all of South East
Asia, and Islamic legal traditions are formally recognized not just in Malaysia
and Indonesia, but also in Myanmar, Philippines, Singapore, and Thailand
(Hooker 1984).
Malay customary law or adat is by far the most typical, distinctive, and widespread form
of customary law in South East Asia. It mingled with Islamic law in what Hooker
calls the Malay legal world of Indonesia and Malaysia, and has survived both
colonial rule and post-colonial nationalist modernization. Adat varied somewhat from place to place, but conforms to
conventional notions of customary law: it was handed down as an oral tradition;
often took the form of easily-recalled proverbs, homilies or brief lines of
poetry, often containing analogies to the natural world; and applied generally at
the village level. It dealt not just with social and moral issues (family and
criminal law in modern parlance) but also with property, agriculture, the
environment and even constitutional issues. Its typical mode of enforcement was
via criminal or social sanctions (Hooker 1970). The famous Dutch legal scholar
Cornelis Van Vollenhoven argued strongly and successfully in favour of allowing
the Indonesians to be governed by their own adat
instead of Dutch law (Fasseur 1992). He founded the adatrecht school at Leiden University, in which Dutch and
Indonesian scholars mapped out 19 regional varieties of adat in the Dutch East Indies (Holleman 1981, Burns 2004). A
fundamental distinction within these varieties was that between adat temenggong and adat perpatih; the latter, applicable mainly in the Minangkabau
areas of West Sumatra (Indonesia) and Negri Sembilan (Malaya) excited much
interest with its matrilineal system of succession to property and its female-centred
laws. Nowadays adat still prevails as
an aspect of law applicable in the religious courts of Malaysia, Indonesia, and
the Philippines, and as the main form of law applicable to the ‘native’ or
indigenous peoples of Borneo. The Malaysian state of Sarawak, for example,
applies an almost complete system of formal legal pluralism by applying adat in the Native Courts, shari’a in the Syariah Courts, and
common law in the civil courts, which also apply the customary law of non-native
groups such as the Chinese (Hooker 1992).
It would, however, be erroneous to think that
codes and statutes played no part in pre-colonial law. There are many examples in
South East Asia of attempts to codify the law. These should be distinguished
from codes in the European sense of attempts to reform as well as to
consolidate the law in a given area. Traditional law in South East Asia did not
distinguish fields of law in same way that European law consistently did:
notably they did not distinguish criminal, public, family and property law.
Attempts at codification were designed to consolidate the entire law or at
least large portions of it. Preeminent examples are the Undang-Undang Melaka and the Undang-Undang
Laut Melaka (Laws of Malacca, 15th century) (Liaw 1976), Siam’s
1805 Law of the Three Seals (Harding 2008); and the codes of the Le dynasty in
Vietnam (15th to 18th centuries). The Law of the Three
Seals is of particular interest in terms of codification. A response to the
perceived decline in legal veracity resulting from the destruction of Siam’s
legal records in the sack of Ayutthaya by the Burmese in 1767, it attempted to
restate the entire law of Siam in terms of the Buddhist Dhammasat along with
royal decrees of general application. It was not initially published,
indicating its function as a reliable guide for officials and judges rather
than a statement of the rights of Siamese subjects (Hooker 1986, Vickery 1996).
iv)
Colonial
law.
The advent of European colonialism from the
early 16th century onwards, and especially in the 19th
century, resulted in the gradual imposition of European laws as the general law
in all of South East Asia. In some cases such as Burma, Tonkin (Vietnam),
Philippines and Cambodia, the colonial power actually overthrew or displaced the
traditional monarchies and the legal traditions that were attached to them.
Even so, these legal traditions were retained to the extent that they
represented exceptions to the general law, especially for personal law purposes.
The case of Burma was particularly unfortunate, as Burma had in many ways the
most advanced legal system in South East Asia prior to 1885 (Huxley 2001) when
the monarchy was overthrown by the British in the Third Anglo-Burmese War.
Elsewhere, such as in British Malaya, parts of the Dutch East Indies, and the
French Vietnamese protectorate of Annam where the Nguyen dynasty reigned until
1945, traditional rulers were retained in a system of indirect rule, and
European laws were only introduced piecemeal (Ta Van Tai 2004-5). As the
European powers moved from establishing trading posts to exerting political
control over hinterlands during the mid-to-late 19th century, they
increasingly imposed their own laws. There were, however, variations in terms
of the geographical spread of these laws, the people to whom they applied, and
the legal subjects they covered. In general personal laws, being based on the
fundamental social values or religions of the Asian peoples under colonial
subjection, remained untouched, although legal structures under colonial
control (courts, judges, legislation) were put in place to administer them. This
of course tended to alter the effect and the dynamism of the local legal
traditions. Property and commercial law, being essential to the economic
purposes of colonial governments, and criminal laws, designed to maintain
social order and the power of the colonial government, generally and
increasingly conformed to the law of the colonial power. Migrant peoples, such
as the Chinese and those of South Asian heritage, were generally allowed to
have their own law, at least initially; eventually even these were gradually
absorbed under the aegis of the colonial law (Lev 2001).
An interestingly contrasted approach is
revealed as between British and Dutch legal policy regarding legal pluralism.
The British introduced English law as the general law in the Straits
Settlements of Penang, Malacca and Singapore (Phang 1990), but they did not
enforce it in a monolithic way. Instead, they modified it in its application to
the subject peoples, sometimes even recognizing full exceptions (such as
Islamic personal law for Muslims), on the ground that to do otherwise would be
oppressive, as well as courting rebellion. The Dutch in the Dutch East Indies,
on the other hand, adopted a policy of recognizing ‘law populations’; under
this theory each people having its own law would be dealt with according to
that law (Lukito 2013). Over time, the tendency of the English common law and
pragmatic legislative measures to make exceptions, and the tendency of the
Dutch system to reduce the exceptions by common legislation, narrowed the
difference, in practical application at least, between these starkly different
theories. Only in relation to the Dutch East Indies was there an intense debate
as to the correct ethical position for a colonial power (Fasseur 1992). In the
British-held territories the Indian precedent was followed; in other words, in
due course the codified common law of British India was adopted (the Penal
Code, the Criminal and Civil Procedure Codes, the Contracts Act, the Evidence
Act, and so forth) (Tan Poh-ling 1997).
Thus by the late 19th or early 20th
century European laws became the rule rather than the exception, governing most
areas of law, or at least framing their administration. The Dutch maintained a system of religious
courts (Lev 1972), while the British had, by treaties, reserved to the Rulers
of the Malay states jurisdiction over matters affecting Islam and adat. As a result of these colonial
legal developments, without exception the South East Asian states even now base
their legal system on a European framework (Harding 2001) conforming to a variety
of the civil law or else of the English common law: French law in Vietnam,
Cambodia and Laos; Dutch law in Indonesia; Spanish law in the Philippines;
Portuguese law in Timor Leste; the English common law in Singapore, Malaysia,
Brunei and Myanmar. The Philippines, having been under American rule for the
first half of the 20th century, has a hybrid system, with some areas
(such as commercial and constitutional law) resembling the law of the United
States. Malaysia, Indonesia and Brunei maintain a bifurcated legal system as
between the ordinary courts applying the common law, and the religious courts
applying the shari’a law to Muslims
in personal law matters. In Singapore the Syariah Court remains a subordinate
court within the main legal architecture. In Malaysia a constitutional
amendment in 1988 separated the Syariah Courts from the ‘civil’ or ordinary
courts by providing that the latter could not exercise the jurisdiction of the
former (Federal Constitution, Article 121(1A): Harding 2012, Moustafa 2013).
An exception here in several respects is Siam,
which, although never colonized, came under colonial influence if only by
virtue of being under the whip of extraterritoriality treaties concluded with
Western powers and Japan in the latter half of the 19th century
(Hooker 1986), and the witnessing of neighbouring Burma’s fate. These treaties
provided for citizens of the country in question to be treated under their own
law while on Siamese territory, and expressly linked the rescinding of this
arrangement to the enactment of ‘modern codes of law’ in Siam. King
Chulalongkorn the Great (1868-1910) and his immediate successors achieved a
transformation of Siamese law as complete as that imposed by any colonial power
elsewhere in Asia. Over a half century from about 1885 to 1935, Siam adopted
codes based eclectically on civilian systems with some influence from the
previous law based on the Buddhist dhammasat
and the common law. By the time the Civil and Commercial Code was completed in
1935, the extraterritoriality treaties had as a result been entirely revoked.
Siam’s model here was to follow Japan’s voluntary espousal of the civil law
rather than India or Vietnam’s enslavement to a single foreign legal system.
Unlike Japan, Siam was mainly influenced by French and Belgian, rather than
German, jurists, having earlier flirted with the adoption of the common law,
which proved too problematic in its practical application to be an appropriate
model. Following this complete transformation of Siam’s legal codes, the Law of
the Three Seals was consigned to legal history (Harding 2008).
v)
Post-colonial
law in the period of nationalism
The struggle against colonialism took
different forms and affected the vectors of national legal systems across South
East Asia. In the common law countries (Burma, Malaya, Singapore, Brunei), as
well as in the Philippines, following India’s independence in 1947,
independence was gained without much difficulty, and the common law was assumed
to represent an inevitable form of legal continuity. In Indonesia and
Indo-China, however, independence from the Netherlands and France,
respectively, was attained only after fierce, and in Vietnam’s case, prolonged,
warfare. The continuation of colonial laws in these latter countries
represented a temporary expedient rather than a solution. Vietnam, initially
divided (1954-76) between the capitalist South and the communist North, was
torn apart by a devastating proxy war, the North becoming ultimately victorious
by 1975 and bringing all of Vietnam, and Laos too, under socialist law based on
that of the Soviet Union (Gillespie and Nicholson 2005). Cambodia under the Khmer
Rouge (1975-9) saw its laws and legal professions, indeed even legality as
such, tragically and completely obliterated by genocide, and the road back from
the ground zero of 1979 (legally and in general) has been extremely difficult.
Under the influence of the legal scholar
Supomo, Indonesia adopted a constitution in 1945 (that is still in force) that
embodied an integralist view of the state that was hostile to individual rights
and the rule of law; it also rejected as highly divisive the notion that the
state should be based on Islam (Lev 2001a). Nationalism did not, however,
succeed in bringing Indonesians under anything resembling the revolutionary law
(hukum revolusi) desired by President
Sukarno (1945-1966). Rather it secured the temporary eclipse (1963-6) of the
Dutch civil code, which during the New Order (Orde Baru) period of President Suharto (1966-1998) ultimately
survived only to be hollowed out by successive new laws on, for example, land
and marriage (Agrarian Law 1960, Marriage Law 1974) (Lev 2001b). Personal laws
are divided as between those for Muslims, based on Islamic law and adat, and those for non-Muslims. The
1998 economic crisis, which affected all of South East Asia, brought an end to
the authoritarianism of Suharto’s New Order and the commencement of a new
period of reform (reformasi), marked
by extensive legal reforms and constitutional development led by four major
amendments (1999-2002) to the 1945 Constitution that altered its character
profoundly (Butt and Lindsey 2012). The reformasi
period has transformed Indonesian law once again as democracy replaced
authoritarian government, and the rule of law (negara hukum) replaced nationalist laws such as the Judiciary Law 1970,
which brought the judiciary under government control (Lev 2001a).
A slightly similar pattern may be seen in the
Philippines, where post-war independence ultimately led to the dictatorship of President
Ferdinand Marcos and rule by emergency decree under an increasingly manipulated
constitution during 1972-1986. The ousting of Marcos by ‘people power’ in 1986
led to a new constitution in 1987, securing a vibrant if sometimes violent and
unstable democracy. Some elements of Philippines law, such as the absence of
divorce law and anti-abortion law, can be traced to its largely Catholic population.
The old Spanish Civil Code is still in force, but the American common law is
influential in some areas, notably constitutional and commercial law (Santos
2000).
An extreme case of this now-familiar legal trajectory
is Burma, which became independent in 1947. As was the case with other South
East Asian states, Burma did not attempt to reintroduce the traditional legal
system, just as it did not reintroduce the monarchy. Indeed its laws were
simply in effect the codified laws of British India, of which it had been a
major province between 1886 and 1937. In 1962 the coup of General Ne Win
resulted in a gradual demolition of the system left by the British and the 1948
Constitution. Judicial independence and the doctrine of precedent were done
away with in favour of government policy as a prevailing norm under the
‘Burmese path to socialism’ (Myint Zan 2000). Legislation was introduced as
Revolutionary Council decrees. The Anglo-Indian codes remained but were not
always used in practice. In 2011, after half a century of military rule,
Myanmar (as it has been called since 1989) began to open to the outside and
reform its legal system, posing anew the issue of how to re-establish legality
and constitutionalism in a country plagued by inter-ethnic wars and
inter-communal strife. The persistence and progress of these reforms remain in
doubt, as does the nature of Burmese legal traditions (Crouch and Lindsey 2014)
vi)
Asian laws,
Asian values
Underlying many of these developments lies
the issue of the fundamental nature of law in South East Asia. To what extent
is it or can it be indigenous, or conform to patterns markedly different from
those of its former colonial powers? To what extent also does it or can it
embrace international norms of the rule of law, constitutionalism, human
rights, and property? Is it in fact resistant to the foreign legal transplants
to which it has been repeatedly subjected?
The diversity of the region makes it
difficult even to explore general answers to these questions. As we have seen,
the region has not used the independence of the post-war era to return to its
legal roots in pre-colonial law. Rather it has attempted to build national
legal traditions on a base of colonial law – we have seen in Indonesia’s case
how contradictory this can be. Whatever the merits or otherwise of traditional
law, no sustained argument has succeeded in restoring even some limited elements
of pre-colonial law. Indeed in many areas, even in personal law, the law has
moved further away from pre-colonial law and from legal pluralism, for example
with the establishment of monogamy, consent, female equality, and divorce
grounds in marriage law. Adat, it is
true, has staged something of a comeback in Indonesia, and Islamic revival has
prompted a demand across parts of the region for the correction of the
displacement of Islamic law by the colonial powers. In neither Malaysia nor
Indonesia, however, has Islamic law been embraced as the general law, nor has
the state taken on a genuinely and expressly Islamic character. In Vietnam socialist law has been somewhat eclipsed
by the recognition of private property and liberalization in many areas of law
(Sidel 2010, Gillespie and Nicholson 2005).
During the 1990s attention was given to the
notion of ‘Asian values’ with specific reference to the autonomy of Asian
states to develop their own laws without necessarily conforming to Western laws
or international norms (Bell 2000). Part of the argument about Asian values was
that Asian societies embraced a form of communalism or family values that was seen
as hostile to what was perceived as extreme Western liberalism and individualism
that tended to dissolve social bonds. This argument was mainly advanced by
political leaders in Singapore, Malaysia and Indonesia, but had resonances in
other South East Asian countries. This development was a direct response to
advances in international human rights, and as expressed in the Bangkok
Declaration on Human Rights 1993 (Thio 1999). The Asian values argument did not
reject human rights as such (indeed all South East constitutions acknowledge
human rights in some form), and several South East Asian states (Indonesia, Malaysia,
Myanmar, Philippines, and Thailand) even have a national human rights
institution (e.g, Whiting 2003). However, proponents of the Asian values
argument refused to accept that all human rights as defined by Western powers
in the evolving international system were totally applicable in Asian
societies; or that human rights were indivisible or to be interpreted according
to Western normative values. The main problem with this thesis is that, given
the diversity of Asian value systems, it has proved in practice difficult to
find common ground between these various traditions or between different types
of legal consciousness. It also appeared that the argument was advanced in a
self-serving manner by Asian leaders anxious to buttress their power by appeal
to a common authoritarian ideology which sits uncomfortably with advancing
democratisation. Nonetheless, one can observe that, while in practice South
East Asian states do on the whole assert their autonomy with regard to human
rights (for example with regard to laws on national security), it is also true
that human rights are being increasingly recognized either in constitutional law
and in actual practice (for example with regard to religious freedom, ethnic
minorities, gender and gay rights,).
vii)
The future
of law in the region
From this brief account of South East Asia’s
legal traditions we can see that ‘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’ (Harding 2001). The issue for South East
Asians is whether this accommodation of legal pluralism is a fundamental
problem for the unification of legal traditions under one system based on the
rule of law and legal equality, or whether it is a pragmatic or even principled
balancing of legal traditions under a system that recognizes the differences
between them. The surprising fact is that the legal systems of the region have
in practice achieved the degree of syncretism that they have. Legal pluralism
continues to present difficulties (for example citizenship and customary law in
Thailand, mixed marriages in Indonesia, and single-parent conversion of
children in Malaysia). However the larger issue is rather the credibility and
performance of legal institutions per se: the independence of the judiciary; the
rule of law in one-party or dominant-party states; the observance of human
rights and civil liberties; corruption in the judiciary, the police, the
bureaucracy and the electoral system. Across South East Asia in the early 21st
century it is therefore increasingly through constitutional debates that the nature of law and the relevance of
legal traditions are being addressed. While it appeared, in the midst of the
Asian values debate, that South East Asian states were perhaps largely settling
into semi-authoritarian systems accommodating legal pluralism, events since
then have suggested otherwise. The rapid growth of civil society; people-power
in the Philippines from 1986; reformasi
in Indonesia from 1998; the emergence of a two-party system and legal reforms in
Malaysia from 2008; the establishment of constitutional government in Cambodia
in 1993; constitutional reforms in Thailand from 1992; the progressive espousal
of the rule of law as official doctrine in Vietnam since 1987; the opening of
Myanmar since 2010; the creation of an ASEAN human rights mechanism in 2011 –
all of these are taking the region towards a different but uncertain future.
What does seem clear is that debates as to the relevance of legal traditions
are now concerned not so much with the accommodation of legal pluralism and the
applicability of colonial law in an era of nationalism, but rather with the
nature of citizenship and diffusion of justice in rapidly but unevenly developing
economies and urbanizing societies.
BIBLIOGRAPHY AND FURTHER READING
ASEAN Law Association (1995), ASEAN Legal Systems, Singapore:
ButterworthsBell, D.A. (2000), East Meets
West: Human Rights and Democracy in East Asia, Princeton: Princeton
University Press, especially ch.3
von
Benda-Beckmann, F. (1992), ‘Symbiosis of indigenous and western law in Africa
and Asia: An essay in legal pluralism’, in W.J. Mommsen and J.A. de Moor (ed), European Expansion and Law: The Encounter of
European and Indigenous laws in 19th and 20th Century Africa and Asia,
Oxford: Berg Publishers
____ (2002), ‘Who’s afraid
of legal pluralism?’, 47 Journal
of Legal Pluralism, 38
Black, A., and Bell, G. (2011)
(ed), Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations, Cambridge: Cambridge University Press
Burns, P. (2004), The Leiden Legacy: Concepts of Law in
Indonesia, The Hague: KITLV
Butt, S. and Lindsey, T. (2012),
ch.1, The Constitution of Indonesia: A
Contextual Analysis, Oxford: Hart Publishing
Cambridge History of Southeast Asia, vol.1:1 (1992), ch.1, ‘The Writing of Southeast
Asian History’, Cambridge: Cambridge
University Press
Chiba, M. (1986) Asian
Indigenous Law in Interaction with Received Law, London/ New York: KPI
Crouch, M. and Lindsey, T. (2014)
(ed), Law, Society and Transition in
Myanmar, Oxford: Hart Publishing
Engel,
D.M. (1975), Law and Kingship in Thailand
During the Reign of King Chulalongkorn, Ann Arbor: University of Michigan,
Center for South and Southeast Asian Studies
____
(1978), Code and Custom in a Thai
Provincial Court: The Interaction of Formal and Informal Systems of Justice,
Tucson, University of Arizona Press
Engel,
D., and Engel, J. (2010), Tort, Custom,
and Karma: Globalization and Legal Consciousness in Thailand, Stanford,
Stanford University Press
Fasseur, C. (1992), ‘Colonial
dilemma: Van Vollenhoven and the struggle between adat law and western law in
Indonesia’, in W.J. Mommsen and J.A. de Moor (eds), European expansion and law: The encounter of European and indigenous
law in 19th- and 20th-century Africa and Asia, Oxford: Oxford University
Press
Gillespie, J., and Nicholson, P. (2005) (ed),
Asian Socialism and Legal Change: The
Dynamics of Vietnamese and Chinese Reform, Canberra: Asia-Pacific Press
Harding,
A.J. (2001), ‘Comparative Law and Legal Transplantation in South East Asia:
Making Sense of the“Nomic Din”’, ch.9 of D. Nelken and J. Feest (ed), Adapting Legal Cultures, Oxford: Hart
Publishing
____ (2002), ‘Global Doctrine and Local Knowledge:
Law in South East Asia’, 51 International
and Comparative Law Quarterly 25
____ (2008), ‘The eclipse of the
astrologers: King Mongkut, his successors and the reformation of law in
Thailand’, in P. Nicholson and S. Biddulph (ed), Examining Practice, Interrogating Theory: Comparative Legal Studies in
Asia, Leiden: Martinus Nijhoff
____ (2012), The Constitution of Malaysia: A Contextual Analysis, Oxford: Hart
Publishing
Harding,
A., and Leyland, P. (2011), The
Constitutional System of Thailand: A Contextual Analysis, Oxford: Hart
Publishing
Holleman, J.F. (1981) (ed), Van Vollenhoven on Indonesian Adat Law,
The Hague: KITLV
Hooker, M.B. (1970) (ed), Readings in Malay Adat Laws, Singapore:
Singapore University Press
____ (1975) Legal Pluralism:
an Introduction to Colonial and Neo-colonial Laws, Oxford: Oxford
University Press
____ (1978), A Concise Legal
History of South East Asia, Oxford: Oxford University Press
____ (1986)
(ed), Laws of South East Asia, vol. i, Singapore: Butterworths
____ (1988)
(ed), Laws of South East Asia, vol. ii, Singapore: Butterworths
Huxley,
A. (1996) (ed), Thai Law, Buddhist Law:
Essays on the Legal History of Thailand, Laos and Burma, Chiang Mai, White
Orchid Press
____ (2001), ‘Pre-colonial
Burmese law: Conical Hat and Shoulder Bag’, IIAS
Newsletter Online 25, http://www.iias.nl/iiasn/25/theme/25T7.html
Kasemsup,
P. (1986), ‘Reception of Law in Thailand - A Buddhist Society’, in Chiba (1986)
Lev, D.S. (1972), Islamic Courts in Indonesia: A Study in the Political
Bases of Legal Institutions, Berkeley: University of California Press
____
(2001), ‘Colonial law and the genesis of the Indonesian state’, in D.S. Lev, Legal Evolution and Political Authority in
Indonesia: Selected Essays, The Hague: Kluwer Law International
____
(2001a), ‘Judicial unification in post-colonial Indonesia’, in D.S. Lev, Legal Evolution and Political
Authority in Indonesia: Selected Essays,
The Hague: Kluwer Law International
____
(2001b), ‘The lady and the banyan tree: Civil law chance in Indonesia’, in D.S.
Lev, Legal Evolution and Political
Authority in Indonesia: Selected Essays, The Hague: Kluwer Law
International
Liaw Yock Fang (1976), Undang-undang Melaka [The Laws of
Malacca], The Hague: Martinus Nijhoff
Myint Zan
(2000), ‘Judicial independence in
Burma: No march backwards towards the past’, 1 Asia-Pacific Law and Policy Journal i
Santos, S.M. (2000),
‘Common law elements in the Philippine mixed legal system’, 2(1) Asian Law 34
Sidel, M. (2010), Law and Society in Vietnam: The Transition from Socialism in
Comparative Perspective, Cambridge: Cambridge University Press
Ta Van Tai
(2004-5), ‘Buddhism and Human Rights in Traditional Vietnam’, Review of Vietnamese Studies,http://www.vietnamesestudies.org/uploads/4/5/8/7/4587788/tavantaibuddhism_and_human_rights.pdf
Tamanaha,
B.Z. (1993), ‘The folly of the “social scientific’ concept of legal pluralism’,
Journal of Law and Society 20: 192
Tan
Hsien-li (2011), The ASEAN
Intergovernmental Commission on Human Rights: Institutionalising Human Rights
in Southeast Asia, Cambridge: Cambridge University Press
Tan,
Poh-ling (1997) (ed), Asian Legal Systems: Law, Society and Pluralism in
East Asia, Sydney: Butterworths
Thio, Li-ann (1999), ‘Implementing human rights in ASEAN
countries: Promises to keep and miles to go before I sleep’, Yale Human
Rights & Development Law Journal 2, 1
Vickery, M.
(1996), ‘The Constitution of Ayutthaya: The Three Seals Code’, in Huxley (1996)
Whiting, A.
(2003), ‘Situating Suhakam: Human rights debates and Malaysia’s National Human
Rights Commission’, 39 Stanford Journal
of International Law 59
Comments
Post a comment