ASIAN & ASIAN & COMPARATIVE LAWCOMPARATIVE LAW

CONCEPTSCONCEPTSProf David K. Linnan

Class One- LAWS # 827 01/08/04

ADMINISTRATIONStaggered start with U Washington-Seattle & U

Wisconsin-Madison students, plus faculty from U Melbourne and Southwestern Law-LA

Course page athttp://www.lfip.org/laws827

Readings on course materials link from course page (for next Monday, Don Clarke on Chinese corporate governance)

ADMINISTRATIONYou must sign up for listserv laws827

(instructions at class administration link on course page)

We shall have a sign-up sheet in each class meeting which you need to sign (put your e-mail address on today’s sheet)

ADMINISTRATIONArrangements re graduation writing requirement

paper; I will be in Columbia few times this semester, but need trade drafts, etc. via e-mail

Office hours will be held (ViaVideo in USC 304), good time?

Office telephone in Seattle 206/616-6385

E-mail linnan@law.law.sc.edu

CONCEPTSWHAT IS COMPARATIVE LAW?

Classical Legal Families Approach (e.g., Common Law vs. Civil Law vs. once & future Socialist Law)

Distinction between substantive law & institutional approach, all functionalism

Taxonomies reflect changing foci; traditional Western law bias (essentially, traditionally French or German law on academic level), traditional private law bias

CONCEPTSWHAT IS LAW & DEVELOPMENT?

Movement 1960s-1970s, primarily Latin America & Africa as focus of modernization, liberal political ideas

Arguably reborn in late 1980s following fall of Berlin wall, rule of law & democratization efforts in Eastern Europe

CONCEPTSWHAT IS ASIAN LAW?

Academic Western bias traditionally for comparative law, Asian jurisdictions treated first as sui generis with legal sociology tinges

US first Japan country specialization then China country specialization (academic), now catch-up with SE Asia, S Asia & Islamic world

CONCEPTSWHAT IS ASIAN LAW? (CONT’D)

Law reform driven by economic reform & globalization, not necessarily law & democracy as in 1960s-1970s Law & Development or 1990s Post Berlin Wall Transition Economies, often IFI-financed

Note that communism fell in former Warsaw Pact, but socialism survives in Asia but experiencing economic reform (China, Vietnam)

CONCEPTSWHAT IS ASIAN LAW? (CONT’D)

Where is “Asia” definitional question before legal question?

Given non-Western character, shift towards more institutional approaches and away from classical doctrinal approaches to cultural, economic and institutional framework explanations

CONCEPTSWHAT IS ASIAN LAW? (CONT’D)

Significant political disconnect still, since Asians typically want to modernize and grow but are ambivalent about Westernization (unlike Eastern Europeans, who always wanted to become ersatz Austrians in “rejoining” Europe)

Now some aggressive anti-Westernism aka disagreements re war on terror vs. war on Islam

CONCEPTSWHAT ARE ASIAN LAWS’ HIDDEN DISTINCTIVE

UNDERPINNINGS?

Different tradition on authority & state, political, philosophical & religious as affecting law

19th-20th century tradition of legal borrowings, either for modernization (e.g., Japan, Korea & Taiwan 19th, PRC late 20th) or as colonies (e.g., Indonesia, Malaysia, Vietnam, Singapore)

CONCEPTSWHAT ARE ASIAN LAWS’ HIDDEN DISTINCTIVE

UNDERPINNINGS? (CONT’D)

Hidden difference on doctrinal (mostly private) law side that formal Western influences are largely Civil Law-oriented

However, legal pluralism common formally as in Indonesia leading to legal complexity and ideological competition at level of substantive law & institutions as reflecting social structures

CONCEPTSWHAT ARE ASIAN LAWS’ HIDDEN DISTINCTIVE

UNDERPINNINGS? (CONT’D)

On public law side, modernization/democratization issues conducted in human rights terms (but be aware that US or more broadly Common Law British tradition countries tend to have different technical interpretations of human rights in terms of civil/political rights (restraining government) vs. economic/social rights (benefits of government)

CONCEPTSWHAT ARE ASIAN LAWS’ HIDDEN DISTINCTIVE

UNDERPINNINGS? (CONT’D)

On the economic side, strong involvement of the State so that economic liberalism minority view in Asia (e.g., claims about alternate forms of capitalism vs. the development state)

Countervailing pressure of globalization and doctrinaire Washington Consensus pushed by IFIs (international financial institutions)

CONCEPTSWHAT ARE ASIAN LAWS’ HIDDEN DISTINCTIVE

UNDERPINNINGS? (CONT’D)

With the exception of Japan, Asian law is largely about NIEs (newly industrialized economies) or lower income developing countries

Social & political concerns are different if per capita GDP is U$1,000 vs. U$8,000 vs. U$25,000

Hidden cultural issues, since non-Western societies

CONCEPTSWHAT ARE ASIAN LAWS’ HIDDEN

DISTINCTIVE UNDERPINNINGS? (CONT’D)

Ultimately, several competing strains & parties’ agendas drive things (e.g., economist-controlled IFIs, foreign state interests, local developmental interests, problems of societies in transition & quo vadis question)