Legal Institutions in East Asia: New Papers

Here's a series of recent papers on the design and reception of legal institutions in Asia; increasingly a major and absolutely fascinating area for comparative research.

Update 9/2/6: Two weblogs with tons of information on Chinese legal matters: Chinalawblog (by practicing lawyers Dan Harris and Steve Dickinson) and Chinese Law Professor Blog (a member of the Law Professor Blog Network and hosted by prof. Donald Clarke, author of one of the papers below).

Global Institutions, Indigenous Meaning: Lessons from Chinese Law for the New Institutionalism, Ethan Michelson (Indiana University Bloomington, Dept of Sociology, Dept of East Asian Languages & Cultures) (Link)

China's legal reforms support an oft-told story about the global diffusion of Western institutional forms. A less commonly recounted story, and the one told in this paper, is about the manner in which institutions that at this superficial, symbolic level conform to dominant exogenous models also undergo a process of local transformation through cultural translation. This paper develops a theory of institutional appropriation and indigenization in which meaning-making activity in general and divergence from global institutional models in particular is properly understood as the product of local strategic agency. Three empirical examples from Chinese law - (1) law firm naming conventions and their changes over a ten-year period (1995-2004), (2) the black gowns judges and lawyers have been required to wear in the courtroom since 2001 and 2003 respectively, and (3) the use of the gavel in the courtroom since 2002 - reveal conditions under which the local representation of imported institutions not as foreign transplants but rather as home-grown traditions is strategically produced by the purposive, and often contested, efforts of actors in the marketplace and in the state to define reality in a manner consistent with their respective interests. An implication of the process of appropriation and indigenization is that the adoption of exogenous institutional forms (e.g., Western legality) may serve to reproduce local institutional arrangements (e.g., socialist legality) at least as much as it threatens to undo them.


The Role of Law in China's Economic Development, Donald C. Clarke (George Washington University Law School), Peter Murrell (University of Maryland - Department of Economics), Susan H. Whiting (University of Washington - Department of Political Science) (Link)

This paper surveys China's legal system in the economic reform era. We analyze the role of law in the economy, assessing whether China's formal legal system contributed to those expectations of stable and predictable rights of property and contract that are prerequisites for growth. The paper begins by detailing legal developments. The relationship between legal and economic development was bidirectional - a coevolutionary process. We then examine three spheres of activity - property rights, agreements to trade, and corporate governance - asking whether law plays an important role, how that role has changed, and what the current problems are. Common themes arise. First, there have been profound changes, with law playing an increasingly important role. Second, formal legal institutions have not made a critical contribution to China's remarkable economic success. This latter conclusion leaves open the question of which mechanisms generated the necessary expectations of reasonable returns from decentralized economic activity. We briefly reflect on mechanisms other than law that might have produced such expectations, for example, the role of local Communist Party officials. However, lack of empirical information suggests this is a topic for future research.


Politics, Ideology, and Legal System Reform in Northeast Asia, John K.M. Ohnesorge (University of Wisconsin Law School) (Link)

Legal systems throughout East Asia are in the midst of rapid and potentially fundamental change, across a range of legal fields. This paper, prepared for a conference on the potential effects of 9/11 on legal and social change in East Asia, examines East Asian legal reforms in the areas of administrative law and corporate law. These two fields, though not often studied in tandem, both respond to a pair of competing sentiments, one which can be thought of as "neo-liberal," and the other which might be termed populist/progressive. These competing sentiments are at play as East Asian legal reforms unfold, and it is as yet unclear which of them will be more fully served once the reforms take hold in society. Complicating the picture are the effects of 9/11 on America's foreign policy, as well as the effects of the "Enron" crisis in American corporate governance, both of which have shifted America's focus on East Asian law reform from where it stood at the end of the 1990s.


Constitutional Choices in Taiwan: Implications of Global Trends, Tom Ginsburg (University of Illinois College of Law) (Link)

The current Republic of China Constitution is a modified version of that drafted on the mainland in the late 1940s. While incremental reforms in the 1990s helped to tailor the Constitution to the needs of the island of Taiwan, they also produced a number of unintended consequences that have led to a stalemate between executive and legislative branches. As President Chen Shui-bian renews his call for constitutional reform, Taiwan has an opportunity to correct these severe defects in the political system. This paper considers the design of constitutional reform in light of recent global trends and Taiwan's distinctive political and social context. It argues that Taiwan's major political cleavages are of the type best resolved by some form of presidential system. It also considers a number of other issues of constitutional design, including direct democracy, constitutional review, and other oversight bodies.