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Charting Socio-Legal Scholarship on Southeast Asia: Key Themes and Future Directions

Published online by Cambridge University Press:  29 May 2015

Lynette J. Chua
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Abstract

This article discusses the state of socio-legal scholarship on Southeast Asia and situates the special journal issue in relation to its key patterns, emerging trends, and future directions. Southeast Asian literature in leading socio-legal journals exhibits an imbalanced geographical coverage and tends to cluster around research on state law’s intersection with Islamic and/or customary norms, women’s equality and legal status, and land and the natural environment. These prevailing patterns lead to uneven attention paid to Southeast Asia. However, growing bodies of work along the major themes of legal pluralism, law and development, and dispute processing show the potential of Southeast Asian research to advance important debates and sub-fields in the scholarship at large. Proposals from a December 2012 workshop initiative further identified research directions that could enrich this field of study as well as understandings of law-society relations in Southeast Asia.

Keywords

socio-legallaw and societySoutheast Asia
Type
Articles
Information
Asian Journal of Comparative Law , Volume 9: Special Issue: Socio-Legal Research on Southeast Asia: Themes, Directions, and Challenges , 1 January 2014 , pp. 5 - 27
Copyright
Copyright © Faculty of Law, National University of Singapore 2014

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References

1 United Nations ESCAP, Fact Sheet (Bangkok: United Nations Economic & Social Commission for Asia & the Pacific, 2006).Google ScholarPubMed

2 They are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar (Burma), the Philippines, Singapore, Thailand, Timor-Leste (East Timor), and Vietnam. I associate Southeast Asia with the territories of these 11 states while bearing in the mind that state borders and States are socially constructed and that they are resisted and contested by the people they claim to govern. See, e.g. Scott, James C., The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (New Haven, CT: Yale University Press, 2010)Google ScholarPubMed. All of the 11 states are members of the Association of Southeast Asian Nations (ASEAN), with the exception of Timor-Leste, which is seeking to become a member.

3 Terms such as “socio-legal studies,” “sociology of law,” and “law and society” may carry different connotations for different scholars, depending on their backgrounds. Nelken, David, Beyond Law in Context: Developing a Sociological Understanding of Law (Burlington, VT: Ashgate, 2009).Google Scholar In this article and the Southeast Asian project described herein, “socio-legal studies” and “law and society” are used interchangeably. As explained in the main text, I take the position that while socio-legal research should exclude studies that focus on doctrinal analyses or leading appellate cases, it should embrace diverse methods and methodologies, both qualitative and quantitative, as well as scholars from a wide range of backgrounds and training.

4 In this article, I use “law” to refer to formal rules enacted by the State, that is, state or official law, and “other normative orderings,” “alternative norms” or like phrases to refer to non-state rules that also have the effect of regulating and organising social life and human relations. Examples include religious norms, customs, community practices, and unwritten, implicit conventions that govern political behaviour. Nonetheless, I recognise and accept that socio-legal scholars have different views about the definition of “law.” Some scholars believe that “law” should encompass non-state or unofficial law; others reserve the term exclusively for state-enacted rules. Merry, Sally E., “Legal Pluralism” (1988) 22 Law & Society Review 869–896 CrossRefGoogle Scholar; Tamanaha, Brian Z., “Understanding Legal Pluralism: Past to Present, Local to Global” (2008) 30 Sydney Law Review 375–411 Google Scholar. The debate overlaps with contentions over the meaning of “legal pluralism.” In the social science sense, “legal pluralism” refers to an empirical reality of multiple normative orders, meaning that legal pluralism is a universal feature of social organisation in any society ( Griffiths, John, “What is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism & Unofficial Law 1–55.CrossRefGoogle Scholar), where law is the self-regulation of a semi-autonomous field porous and susceptible to influences by rules and elements external to that field. Moore, Sally Falk, “Law and Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study” (1973) 7 Law & Soc’ Rev. 719–746 CrossRefGoogle Scholar; Benda-Beckmann, Franz von, “Comment on Merry” (1988) 22 Law & Soc’y Rev. 897902.Google Scholar This conceptualisation of “law” is broader than the juristic sense (Griffiths, ibid.) that delineates the different bodies of state law enacted to govern different population groups. See, e.g. M. B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Oxford: Clarendon Press, 1975). According to the first view, excluding unofficial normative orderings from “law” privileges the centralism of state law in the study of legal pluralism; however, critics find the formulation too elastic (see, e.g. Tamanaha, ibid.) or worry that it de-centres attention on the coercive power of States and its monopoly over symbolic power wielded through its laws (Merry, ibid.). One way to navigate this tension is to regard the plurality of normative orders as a point of departure for empirical research (Benda-Beckmann, F., ibid.) rather than a source of contention, and be clear about one’s chosen approach and level of analysis. Benda-Beckmann, Franz von, “Who’s Afraid of Legal Pluralism?” (2002) 47 Journal of Legal Pluralism & Unofficial Law 37–82.CrossRefGoogle Scholar

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6 The Law & Society Association has a vibrant “East Asian Law & Society” research network that holds a separate, biannual regional conference with the same name. It is predominantly made up of scholars who research Northeast Asian countries such as China, Japan, and Korea. In recent years, however, their leaders have made effort to reach out to Southeast Asian-oriented colleagues. Partly due to their outreach and partly due to initiatives such as the one related to this special issue, Southeast Asia is gaining more visibility within this larger East Asian community, including the new Asian Journal of Law & Society launched in January 2014. For more about the new journal’s coverage on Southeast Asia, see note 40.

7 Nelken, supra note 3.

8 Also see the Preface in this special issue.

9 Frank Munger, “Revolution Imagined: Cause Advocacy, Consumer Rights, and the Evolving Role of NGOs in Thailand (2014); John Gillespie, “New Transnational Governance and the Changing Composition of Regulatory Pluralism in Southeast Asia (2013); Helena Whalen-Bridge, “Conceptualisation of Pro Bono in Singapore” (2014); Agung Wardana, “Alliances and Contestation in the Legal Production of Space: The Case of Bali” (2014); Stacia Haynie & Tao L. Dumas, “The Philippine Supreme Court and Regime Response” (2014).

10 See note 4.

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14 The introduction by Collier et al. (1994) to the 1994 Law & Society Review, the journal’s only special issue on Southeast Asia, elucidates some of these pluralistic characteristics. Collier, Jane et al., “Editors’ Introduction” (1994) 28 Law & Soc’y Rev. 417–428.Google Scholar

15 Only Thailand, or Siam at the time, avoided becoming formally colonised by Western powers. However, it faced constant threats from the British to its west, and the French to its east, and tried to construct Western-style political and legal institutions over existing ones. Ibid.

16 That is, 20 per cent or more of a national population are aged 15-24, and the cohort of working-age adults are growing relative to the dependent population. United Nations ESCAP, supra note 1.

17 United Nations ESCAP, ibid.

18 Collier et al., supra note 14 at 417.

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39 Even in the area of comparative law within the legal academy, scholars have taken little account of this region. “Scholars in the field of law in South East Asia have therefore trodden a somewhat lonely path”. Harding, supra note 5 at 199.

40 My search included the Canadian Journal of Law & Society, but it did not produce any relevant result. The newly launched Asian Journal of Law & Society (also see note 6) was excluded from the search; however, in its first and only issue so far, four out of the 10 articles are Southeast Asian. They are Trzcinski, Leah M. and Upham, Frank K., “Creating Law from the Ground Up: Land Law in Post-Conflict Cambodia” (2014) 1 Asian Journal of Law & Society 55–77 CrossRefGoogle Scholar; Pellegrina, Lucia et al., “Measuring Judicial Ideal Points in New Democracies” (2014) 1 Asian Journal of Law & Society 125–164 CrossRefGoogle Scholar; Stanton, Thomas H., “Law and Economic Development: The Cautionary Tale of Colonial Burma” (2014) 1 Asian Journal of Law & Society 165–181 CrossRefGoogle Scholar; Chua, Lynette J., “Rights Mobilization and the Campaign to Decriminalize Homosexuality in Singapore” (2014) 1 Asian Journal of Law & Society 205–228.CrossRefGoogle Scholar

41 In fact, in response to this phenomenon, David Engel and I are collecting and examining publications outside of socio-legal journals to understand how Southeast Asian-oriented scholars understand and characterise “law” in their work.

42 This count excludes Black, Ann, “Replicating ‘A Model of Mutual Respect’: Could Singapore’s Legal Pluralism Work in Australia?” (2012) 44 Journal of Legal Pluralism and Unofficial Law 65–102 CrossRefGoogle Scholar, as it focuses on Australia and discusses whether certain features of legal pluralism in Singapore could be applied to the former.

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50 That is, legal pluralism in the broader social science sense. See note 4

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53 Collier et al., supra note 14.

54 See, e.g. Engel, David M., “Landscapes of the Law: Injury, Remedy, and Social Change in Thailand” (2009) 43 Law & Soc’y Rev. 61–95 CrossRefGoogle Scholar; Chua, Lynette J., “Pragmatic Resistance, Law, and Social Movements in Authoritarian States: The Case of Gay Collective Action in Singapore” (2012) 46 Law & Soc’y Rev. 713–748.CrossRefGoogle Scholar

55 See, e.g. Prill-Brett, June, “Contested Domains: The Indigenous Peoples Rights Act (IPRA) and Legal Pluralism in the Northern Philippines” (2007) 55 Journal of Legal Pluralism & Unofficial Law 11–36 CrossRefGoogle Scholar; Hussin, supra note 37.

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57 Wardana, supra note 9.

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63 Gillespie, supra note 9.

64 Benda-Beckmann & Benda-Beckmann (2006b), supra note 11.

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74 Recognising the importance of legal consciousness to understanding Southeast Asia’s complicated plurality, Andrew Harding and I, together with David Engel, responded to the December 2012 recommendations by organising a conference entitled Researching State and Personhood: Law and Society in Southeast Asia. Planned for December 2014, the follow-up conference solicits papers that draw on original fieldwork to interrogate the relationship between the state and social actors, particularly the ways in which individuals or local communities experience, resist, or otherwise navigate state law (possibly in interaction with other social norms and practices). A special issue of select papers from that upcoming conference is also planned for a different journal to reach out to the wider socio-legal studies community, the second identified target audience. Also see the Preface of this special issue.

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76 Chua, supra note 32.

77 Whalen-Bridge, supra note 9.

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81 Engel & Engel, supra note 26.

82 See, e.g. Kongcharoen, supra note 71.

83 My collaborator for the December 2012 workshop, Andrew Harding, has since organised a separate workshop to begin charting research strategies on law and religion in Asia more generally.

84 Wardana, supra note 9.

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90 Galanter, Marc, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law & Soc’y Rev. 95–160.CrossRefGoogle Scholar

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93 David Trubek, “Law and Development 50 Years on” International Encyclopedia of Social and Behaviorial Science (forthcoming). Electronic copy is available at http://ssrn.com/abstract=2161899 (last accessed 17 September 2014).

94 Geertz, supra note 5.

95 I thank one of the anonymous reviewers for pointing this out.

96 Kuan-Hsing, Chen & Chua, Beng Huat, “Introduction: The Inter-Asia Cultural Studies: Movements Project” in Chen, K. & Chua, B. H., eds., The Inter-Asia Cultural Studies Reader (New York: Routledge, 2007).Google Scholar

97 Institutional affiliations as known at press time.