[author]Hiroshi Fukurai

[content]

Asian Journal of Law and Society Vol. 12 No. 1 (2025)

Editor's note: Starting from 2024, the Asian Journal of Law and Society will be adjusted to a quarterly publication, from three issues per year to four issues per year. The magazine has currently attracted more than 8000 institutional subscribers, with an annual download volume of 80000 on the Cambridge website alone in 2024. If third-party platforms such as HeinOnline are included, the annual download volume will reach 90000. This issue focuses on promoting the content summary of Volume 12, Issue 1 (March 2025) of the magazine, for the convenience of readers to consult and cite, as well as for researchers to understand the policy and characteristics of the journal's acceptance of articles. Welcome everyone to actively participate in the construction of the all English academic journal Asian Journal of Law and Society, and build an interdisciplinary and cross-border knowledge community on this platform!

The content of this issue includes: (1) the preface and three research papers of the album "Isolation and Inequality in Turbulent Territories in Asia and Other Regions" edited by Professor Hiroshi Fukurai as guest editor; (2) The winning paper of the AJLS-ALSA 2023 Graduate Thesis Competition from Junshu Ye and Xinrui Li; (3) Professor Lynette J. Chua's Chairman's Speech at the 2023 Annual Conference of the Asian Society for Law and Social Studies; (4) Two book reviews by Laura Harrison and Lawrence Rapeta.

Preface to the album "Isolation and Inequality in Turbulent Territories in Asia and Other Regions"

Hiroshi Fukurai

Professor at the University of California

Member of the Editorial Board of the Asian Journal of Law and Society

Guest editor of this album

1. Introduction

The American Society of Legal Sociology (LSA) is a leading international law and social organization that held its annual conference in Denver, Colorado in 2024 with the theme "Turbulent Territories: Traditions and Revolutions in Law and Society". In his opening speech at the conference, renowned indigenous scholar Professor Ned Blackhawk delved into the legacy of settler colonialism, the rights abuses suffered by indigenous peoples, and the impact of law on Colorado's indigenous communities. This conference was held at the same location as the first conference in 1964, marking the 60th anniversary of LSA's establishment. This location is located near the site of the 1864 Shaxi Massacre and has historical significance. It was here a century ago that US federal military general John Milton Chivington launched an unprovoked and brutal attack, resulting in the deaths of over 200 indigenous women, elderly people, children, and unborn babies. The attendees reflected on the importance of holding the conference at this old site during the meeting. Although the indigenous movement is still ongoing and the arduous struggle of indigenous peoples for sovereignty has not yet ceased, this land still belongs to the unclaimed and unrecognized territories of Arapaho, Xia'an, Yute, and other indigenous peoples in Colorado. Professor Blackhawk's speech strongly reminds us of the lasting impact of Anglo Saxon settler colonialism, emphasizing that the history of indigenous genocide and territorial exile still affects indigenous communities and peoples in Colorado and even throughout North America.

The LSA conference held in San Juan, Puerto Rico in 2023 also explored a similar theme of "segregation and inequality," revealing the history of indigenous genocide and African slavery in the Caribbean region during European American colonial history. By cultivating economic crops such as sugar, tobacco, and coffee, European and American colonies accumulated wealth, which was built upon the forced labor of indigenous and African peoples in the Caribbean and North America. The Republic of Texas, which was once an independent country in the 19th century, gained substantial profits from slave trade with Cuba and Brazil, exporting "American cultivated Africans" from Virginia farms. However, the concentration of African and indigenous laborers in Caribbean plantations also posed significant challenges to colonial power. Because these laborers suffered from systematic exploitation under harsh conditions, they frequently launched riots and uprisings against colonial rulers. Taking Hispaniola Island (Haiti Island) as an example, in 1791, African American slaves launched an uprising against French colonial rulers. This revolution ultimately led to Haiti's independence in 1804, marking the birth of the first successful black republic in the Caribbean region. During the 13 year conflict, thousands of African American slaves on the island of Hispaniola defeated French forces, as well as colonial armies from Spain and Britain. It is worth noting that the Haitian Revolution was a large-scale "unpaid" workers' uprising, becoming one of the earliest and most important working-class revolutions in modern history.

The influence of the anti colonial revolution and resistance movement extended to the Pacific and Asia, where American colonial expansion was driven by economic ambitions and strategic interests. In the early 19th century, American settlers began to arrive in Hawaii as missionaries and merchants. In the mid-19th century, these settlers established profitable sugar plantations. In 1842, President John Tyler issued a warning stating that the United States would not tolerate foreign interference in Hawaii, reaffirming its sovereignty over the Pacific Islands, just as it had previously declared the Monroe Doctrine in Latin America in 1823. As the United States shifted its focus to Asia, it dispatched Brigadier General Matthew Perry to pressure Japan to open up trade relations in 1853, marking a crucial step towards ending Japan's two century long policy of isolation. At the same time, the United States' economic interests in Hawaii deepened, ultimately overthrowing the rule of Queen Lili'uokalani of Hawaii in 1893. This event received support from the United States Marine Corps and American political elites, such as John Stevens, the U.S. Ambassador to the Kingdom of Hawaii, and Sanford B. Dole, the owner of a pineapple plantation. As a descendant of missionaries, Dole became the first president of the Republic of Hawaii in 1894. In 1898, during the Spanish American War, the United States officially annexed Hawaii. In this conflict, the United States also invaded and controlled strategic locations including the Philippines, Samoa, Guam, and other islands in the Pacific and Southeast Asia. The annexation and occupation of these islands by the United States provided key strategic military outposts, and the United States quickly established military bases in these areas to promote colonial expansion and influence in Asia. In 1900, the United States participated in suppressing the Boxer Rebellion in northern China, which resulted in the United States and other foreign powers gaining privileges such as territorial cession, compensation, and extraterritoriality in Asia.

The theme of the LSA conference was the "turbulent territories" in North America and the "isolated and unequal" treatment of indigenous and African American slaves in the Caribbean, which provided a foundation for further colonial actions by the United States in the Pacific and Asia. Based on the agenda of the LSA conference, the East Asian Law and Social Cooperation Research Network (CRN33) organized a special conference titled "Segregation and Inequality in Asia and Other Regions". The conference aims to explore colonial legacy policies and practices in Asia and neighboring regions. Researchers were invited to submit papers critically analyzing the colonial legacy of racial, ethnic, gender, and state segregation, as well as the remnants of racial segregation ideology and social legal discrimination in different Asian contexts. This album includes three research papers that delve into the important dimensions of colonial legacy issues that still affect various regions in Asia and beyond.

2. Album Structure

Before this section, two parts delve into the colonial history of the United States in the Pacific and Asia, highlighting the similarities between the resistance and struggle of indigenous peoples in North America and the Caribbean. The first part focuses on the efforts of the Kingdom of Hawaii to oppose the United States' "Blackbirding" (a form of slave labor prevalent in the Pacific and Oceania), with the aim of defending Hawaii's sovereignty and independence under increasing colonial pressure from the United States. After the American Civil War, Confederate immigrants and former slave owners turned their efforts towards the Pacific, kidnapping and enslaving Polynesians and Melanesians, forcing them to work in European colonies such as Queensland, New South Wales, Fiji, New Caledonia, Vanuatu, Solomon Islands, and Peru. These 'slave trading' activities extended the racial hierarchy by imposing a legal framework of 'segregation and inequality', reflecting colonial policies in North America and the Caribbean, and institutionalizing racial and ethnic segregation of indigenous groups throughout the Pacific region. This section also focuses on the efforts made by the Kingdom of Hawaii to counter these activities, as well as to promote Asian immigration by signing formal treaties with rising Asian powers such as Japan and China.

In order to further uphold Hawaii's sovereignty and address the growing economic and political ambitions of the United States, King Kalakaua launched a global tour in 1881 with the aim of establishing an international alliance to counter the United States' imposition of a new constitution and discriminatory social legal system on Hawaii.

The second part examines the United States' extraterritorial privilege policies and military presence on the islands of Hawaii and Puerto Rico, both of which were annexed by the United States during the Spanish American War in 1898. The second part also reveals how the United States established the privilege of "segregation and inequality" through the exercise of extraterritoriality, thereby avoiding the application of local laws and customs. The political resistance and struggle of islanders against American rulers have a long history. They either seek to obtain sovereign state status outside the jurisdiction of the United States or strive to obtain independent state status within the federal system of the United States. As support for state status grew, Hawaii joined the United States as the 50th state in 1959, while Puerto Rico continued to suffer from unequal political status and lacked full electoral representation in the United States Congress. Puerto Ricans still cannot participate in the US presidential election. Their political struggle for sovereignty and independence continues to this day, just as this struggle still exists in Asia and around the world.

The third part outlines the key points of the three papers in this album. Three papers focus on the complex interaction between law and society, particularly the "isolated and unequal" application of legal frameworks and socio-economic opportunities in different Asian regions. These papers examined the national policies and government projects of South Korea, the People's Republic of China, Central Asia and the former Soviet republics in West Asia, and analyzed how the policy of "isolation and inequality" shaped different ways of obtaining legal freedom and civil rights. This album explores the multidimensional nature of the legal system and its social impact, highlighting inequalities in the provision of rights and opportunities. At the same time, it also examined how historical legacy issues, including colonial laws and discriminatory policies, continue to affect contemporary legal and social structures.

The final section summarizes the research findings on the sustained impact of colonial legal frameworks and provides in-depth insights into the complex social and legal characteristics and categories that persist in these regions, presenting a detailed understanding of the dynamics of "segregation and inequality" and revealing how it shapes legal and social relationships in Asia and its neighboring areas.

(Due to the length of the push, only the general introduction of the second part of the album preface will be presented here. The entire translation will be published on the official website of the Chinese Academy of Law and Social Sciences. Please refer to it.)

3. Conclusion

LSA explores how European and American colonialism shaped the experiences of indigenous peoples and enslaved Africans under the themes of "Isolation and Inequality" and "Turbulent Territories: Tradition and Revolution in Law and Society". These themes highlight the ongoing social and legal inequalities that communities in North America and the Caribbean are currently facing. CRN33 has expanded this research through the theme conference "Isolation and Inequality in Asia and Other Regions", encouraging scholars to critically study the colonial legacy issues in Asia and its neighboring regions, and reflect on how laws normalize discrimination and inequality among different groups and communities through national policies and government projects in their respective countries and homelands.

The three papers in this album explore the social and legal significance of the reality of "isolation and inequality" in contemporary Asia and neighboring regions. The first article explores the ruling of the Korean court on the "comfort women" case, which involves Japan's sexual exploitation of Korean women during World War II. The second paper discusses the issue of systematically rejected divorce applications filed by trafficked women in rural China, with a focus on the judicial basis behind these rejections and emphasizing how informal legal practices exacerbate gender discrimination and domestic abuse in rural communities in China. The third paper explores the Asian impact of the Mongol Tatar invasion on Russian imperialism in shaping Belarus and Latvia. The paper examines how indigenous communities were affected by foreign invasions from Asia, the Crusades, and the ambitions of the Russian Empire.

The turbulent 'isolated and unequal' territories continue to exhibit deeply rooted discriminatory policies and systemic institutional practices in Asia and many other regions. These legacy issues are reflected in deep-rooted inequalities within legal frameworks, social norms, and governance structures, exacerbating divisions based on race, ethnicity, gender, class, and nationality. We need further research to uncover the subtle historical impacts of colonial policies and imperial ambitions, and to trace how these forces have shaped political and socio legal systems. These studies will help to gain a deeper understanding of the serious impact these legacy issues are having globally, revealing their impact on contemporary governance, justice, and legal fairness in Asia and around the world.

#01

RESEARCH PAPER

Ambivalent Identity: Incorporated but Unequal - A Postcolonial Review of the ‘Japanese Comfort Women’ Problem with the Korean Court Judgments regarding State Immunity

Seonwha Kim, Seoul National University, Seoul Family Court

Abstract:Recent controversy around comfort women litigation in Korea illustrates the perplexity of dealing with colonial issues within the framework of international law. A number of victims filed two lawsuits against Japan, requesting compensation for the damages caused in the comfort station. In both lawsuits, the key issue was whether the court should dismiss the case on the grounds of state immunity. Surprisingly, the two courts reached opposite conclusions. The first judgment rejected Japan’s claim of state immunity and announced that the Korean court still holds jurisdiction over the case, while the second judgment dismissed the case by reason of customary international law. Although contrary in conclusion, the rationale of both judgments reflects theoretical confusion about applying the principle of state immunity to an incident that happened between a state and its colony. In neither lawsuits was there an issue of how to represent the damages induced by colonial mobilization. Instead, all the litigants focused on the issue of state immunity. However, since the principle of state immunity is a norm applied between equivalent sovereign states, it does not easily apply to the problems arising from colonial relations. Korea was annexed to Japan as an “incorporated but unequal” part. While the issue was the systematic rape committed against the women in the colony, the identity of Korean comfort women was ambivalent - they were not combatants of the enemy state, but were practically seen as a constituent member of the Japanese military.

In this article, I will analyze the discourse in the lawsuits that reveal the deficiency of jurisprudence in Korea regarding how to address the issue of coloniality. By comparing the two decisions that are opposite and yet similar, I explore how the formalist discussion regarding state immunity veiled substantive issues relevant to the court. Finally, I suggest the possibility of an alternative framework for how the law might accept and address the ambivalent colonial identities of victims, drawing on the International Criminal Court’s Ntaganda case.

Keywords: State immunity, comfort women lawsuits, colonial tort, systematic rape, Ntaganda Case

Divorce Petitions by Trafficked Women Denied: Legal Consciousness, Circuit of Commerce and the State

Xiangning Xu, Brown University

Abstract: This paper explores the reasons that divorce petitions by trafficked women in China were denied in courts in the wake of the chained woman incident. The author collected and examined divorce verdicts involving trafficked women from China Judgements Online. Among 100 unique cases, 87 were denied in their first attempts. Most of these cases were treated in the same way as regular divorce cases, with trafficking allegations either blatantly ignored or dismissed as irrelevant. The author argues that the systematic denials and ignoring of trafficking allegations is enabled by a hegemonic legal consciousness within the Circuit of Trafficking that includes not only parties directly engaged in trafficking activities, but also state actors such as the judges and legislators who prioritise “family” preservation and social stability over the rights and well-being of trafficked women. Without addressing and changing this hegemonic legal consciousness, any reform, if it should take place, would be rendered futile in practice.

Keywords: Divorce petition, trafficked women, legal consciousness

Applying Original Nation Approaches to the Struggles of Original Nations in Euro-Asia: Historical Impacts of the Mongol-Tatar Invasion, Russian Empire, and Post-Soviet States on the Original Nations of Belarus and Latvia

Maria Kazak, El ī na Ranc ā ne, University of the Basque Country, Spain

Abstract: This paper engages in a comprehensive analysis of the historical processes leading to the destruction of the Original Nations of Belarus and Latvia. The research is structured in three sections, with the first outlining the tribal roots common to both Latvian and Belarusian nations, serving as a foundation for subsequent analyses. The second section constitutes the core of the research, employing an Original Nation approach to dissect the impact of historic occupations in the five key waves—religious conversion, invasions of the Mongol-Tatar Yoke that led to administrative integration into states, a language push under the Russian Empire, identity erasure during Sovietization, and lastly, the restoration of independence in both countries. The last section surveys the modern states of Belarus and Latvia, emphasising their endeavours to revive their Original Nations, as both nations share the burden of recovering lost national elements, resisting cultural repression, and building a robust national identity.

Keywords: Original nations, colonialism, Soviet Union, ONAIL, Belarus, Latvia

Beyond Cultural Interpretivism: Analysis of Married Out Women Issue in Rural China

Junshu Ye, School of Marxism, Zhejiang University of Traditional Chinese Medicine

Xinrui Li, School of Law, Zhejiang University

Abstract: The dispute of married out women has become an important modernisation problem since the 1990s as the result of urbanisation and industrialisation. It concerns social stability at grassroots that may affect the ruling base. While the Chinese government is constantly striving to solve it, it also shows how deficient the protection of women’s property rights is that it causes so many controversies. Currently, the cultural explanation that simply attributes the phenomenon to traditional patriarchal culture is popular among scholars and widely accepted, which is, however, proved to be misleading. This article attempts to break this stereotype and points out that this trouble is not directly related to Chinese traditional culture. Rather, it is caused by the majority’s tyranny under the current villager self-government and collective property rights. This article also attempts to find possible solutions, requiring improving the rural self-government system and clearly defining the boundaries of collective property rights by law.

Keywords: Married out women, traditional culture, village self-governance, the majority’s tyranny, women’s property rights

Our Fascination, the Law: On Similarities, Differences, and the Future of Law and Society Scholarship: Asian Law and Society Association 2023 Presidential Address

Lynette J. Chua, National University of Singapore Law School

Abstract: This inaugural presidential address of the Asian Law and Society Association features three recently published monographs to draw attention to research by the next generation of scholars and to show how they contribute to the field. Although the three books differ in terms of focus, methods, and findings, they share a hallmark of law and society, that is, they investigate practices, beliefs, and objects that are often taken for granted. At the same time, the three studies arrive at dissimilar conclusions about law, which reflects another unifying hallmark of law and society—its diversity. Together, the inconsistent findings expose the many profiles of law and demonstrate its fascinating nature. They remind us that we do not yet know the intricacies of law, and we need all kinds of law and society scholarships—on Asian societies and elsewhere—to continue advancing the field.

BOOK REVIEW

The Politico-Legal Institutionalisation of Blind Status and Subjecthood in Early Modern Japan - Blind in Early Modern Japan: Disability, Medicine, and Identity.

By Wei Yu Wayne Tan. Ann Arbor: The University of Michigan Press, 2022. 266pp. Paperback: US$29.35

Japan’s Constitution as the Foundation of Statehood, Governance, and Individual Rights - The Annotated Constitution of Japan: A Handbook.

By Colin P.A. Jones. Amsterdam University Press, 2023. 460pp. €198.00 excl. VAT, hardback €197.99, E-book.