On 3 July 2014 the Shanghai Law and Society Association was established, the first formal organisation of its kind in China. A few weeks earlier, Cambridge University Press published the first issue of the Asian Journal of Law and Society. This is an English language journal, based in Shanghai; its editorial team includes both Asian and Western scholars. In this blog, I will argue that in terms of global legal scholarship these are two significant historical events.
Worldwide, the honourable study of law suffers from three serious limitations: its parochialism, its lack of social context and realism, and its Western domination.
Why is the study of law parochial? When you study mathematics, medicine, or music, you learn something that can be applied anywhere in the world. When you study law, basically you study the law of a particular country. Law students are trained to ‘do things with rules’ in their own country with their own legal language, things such as drafting, memorizing, finding, interpreting, invoking, and applying legal rules.
Why is the study of law lacking social context? Law is meant to regulate human behaviour, and supposedly reflect a society’s values. However, in general, law students and lawyers are not trained to ask where legal rules come from, how they are a product of political, economic and social forces; nor how legal rules are viewed in society, or how effective they actually are. Neither are law students supposed to spend much time reflecting on how legal institutions are functioning, whether they make justice accessible, how they could be improved, or on any other question, which cannot be answered by reference to legislation or case law.
Why is the study of law Western-dominated? Since the era of colonial empire, the laws of most countries in Latin America, Asia, Africa and the Middle East, received a legal superstructure based on legal concepts and techniques of British, French, Spanish, Portuguese, Italian, German, Dutch or Belgian origin. Also after decolonisation, western legal systems and legal thought have remained important references for legal development in most developing countries.
Not only the development of law and jurisprudence, but also the academic study of law and society in Asia and other ‘non-western’ regions has undergone considerable influence from Western scholars. Sometimes, the ideas of colonial scholars about the nature of law in Asia or Africa are still cited today as authoritative sources. One may question whether these ideas can still be realistic. But, admittedly, for decades authoritarian regimes in developing countries hardly allowed domestic scholars to criticise laws or legal institutions. For decades, these countries also paid little attention to the quality of research. Few domestic scholars tried to systematically explain how law developed and why it often contributed so little to justice, legal certainty, and socio-economic development. Also, in many countries, knowledge of English was insufficient. This left a wide space for Western scholars to put their mark on the international study of law and society in Asia, Africa, the Middle East, to such an extent that domestic socio-legal scholars have continued referring to their work as being most authoritative. Given the broad and deep knowledge that many domestic scholars have of the theory and practice of their own legal systems, this situation should not be perpetuated.
Asian, Africa, Middle-Eastern and Latin American scholars have now entered academic domains such as sociology of law, anthropology of law, law and society, law and development, critical legal studies, and socio-legal studies. Increasingly they have joined the ranks of the international Law and Society Association (LSA) which, when it was established in 1964, was still far from being a global network.
The establishment of the new Shanghai association and the new journal has sent out several messages. First, Asian legal scholars deem this a proper time to put the relationship between their legal systems and societies prominently on their research agenda. Secondly, they have chosen to do this not only internally, in their own languages, Chinese, Japanese, Bahasa Indonesia, but jointly as ‘Asia’, and in the main international academic language, i.e. in English. Thirdly, they have decided to do this collaboratively with western scholars, while keeping the management in their own hands, in casu in Shanghai.
We have good reason to believe that these initiatives will make global legal studies a bit less parochial, more contextual and realistic, and more open to non-western legal and socio-legal scholars, i.e. make them better.