一、JUDGING AND JUDGMENT IN CONTEMPORARY ASIA
Judging and Judgment in Contemporary Asia: Editor’s Introduction to this Special Issue
Although the figure of the wise judge may be a universal trope, respect is not automatically accorded every person who passes judgment on another. To be perceived as legitimate, judges must occupy an institutional status with the power to decide controverted cases and must have access to specialized or even sacred knowledge and moral authority. Historically, Asian judges could claim legitimacy through their connection to transcendent legal principles, such as dhamma or dao or shari’a. In contemporary Asia, however, conceptions of law and legal legitimacy have become pluralistic, contested, and contradictory. Judges may to some extent retain a connection to the sacred and the transcendent, yet that connection is no longer sufficient in itself to insulate their judgments—or their character—from criticism. How, then, can the “good judge” be distinguished from judges who fall short of the mark? In this Special Issue, five distinguished scholars explore the crisis of legitimation as it affects judging and judgment in Sri Lanka, India, China, Indonesia, and Thailand.
Keywords: judge, judgment, legitimacy, sacred law, rule of law
the Buddha’s Court: A Buddhist Judicial System in Cotemporary Asia
Drawing on textual and ethnographic research conducted over the last five years, this article analyses an important genre of judicial practice in South and Southeast Asia that has been almost entirely ignored by socio-legal scholars: Buddhist systems of judging. Using the judicial system of one monastic group in contemporary Sri Lanka as a case-study, it argues that Buddhist judging requires more than just the internalization of moral principles, as is often assumed. According to Buddhist (monastic)principles of judging, legal procedures—similar to those used in state legal settings—are equally essential. These procedures govern everything from making legal complaints, to the structuring oftrials, to determining jurisdiction, and many other topics. By examining Buddhist judicial systems, this article not only casts new light on the pluri-legal landscape of Asia; it also offers new reflections on the intersection of religion-based and state-based systems of law in the contemporary world.
Keywords: Buddhism, law, judges, courts, South Asia, Southeast Asia
From Mythic Saviours to #MeToo at the Indian Supreme Court
The Indian Supreme Court has long enjoyed an almost mythic reputation for progressive and creative jurisprudence, but a series of recent scandals is beginning to erode this well-settled authority. One of the most troubling of these incidents has been an allegation of sexual harassment and intimidation by a Court staffer against then sitting Chief Justice of India (CJI) Ranjan Gogoi. This article draws on media analysis and ethnographic research conducted in the immediate aftermath of the “CJI Scandal” to explore what it means for judges and judging in contemporary India. I argue that the justices’ response to the allegations are part of a broader shift in Indian judging. Far from being the product of an institution imbued with mythic qualities, judging in India is increasingly coming to represent an example of mythos, or “an assertive discourse of power and authority … something to be believed and obeyed.”
长期以来，印度最高法院因为其进步性和创造性的法律适用 几乎享有神话般的声誉，但是最近的一系列丑闻正开始侵蚀这一坚实的权威。其中最令人不安的事件之一是一名法院工作人员对时任印度首席大法官（CJI）兰詹·戈戈伊（Ranjan Gogoi）的性骚扰和恐吓指控。本文运用在“CJI丑闻”发生后立即开展的媒体报道分析和民族志研究，探讨它对于当代印度的法官和审判意味着什么。我试图说明，大法官们对指控的回应是印度司法界更为广泛的转变的一部分。印度的审判远不是一个充满神话色彩的机构的产物，而是越来越代表了一个信念，或者说“权力和权威的独断话语……一种被相信和服从的东西”的例示。
Keywords: Indian Supreme Court, #MeToo, Ranjan Gogoi, judicial autonomy, sexual harassment
“What Gets Measured Gets Done”: Metric Fixation and China’s Experiment in Quantified Judging
Kwai Hang Ng，加州大学圣地亚哥分校教授
Peter C.H. Chan，香港城市大学助理教授
This article analyzes the ambitious Case Quality Assessment System (CQAS) that the Supreme People’s Court of China (SPC) promoted during the first half of the 2010s. It offers a case-study of Court J, a grassroots court located in an affluent urban metropolis of China that struggled to come out ahead in the CQAS competition. The article discusses how the SPC quantified judging and the problems created by the metricization process. The CQAS project is analyzed as a case of metric fixation. By identifying the problems that doomed the CQAS, the article points out the challenges facing the a-u-t-h-o-r-i-t-a-r-i-a-n regime in subjecting good judging to quantitative output standards. The CQAS is a metric that judges judging. It reveals how judging is viewed by the party-state. The article concludes by discussing the legacy of the CQAS. Though it nominally ended in 2014, key indicators that it introduced for supervising judges are still used by the Chinese courts today. The CQAS presaged the growing centralization that the Chinese judicial system is undergoing today. Though the SPC has terminated the tournament-style competition that defined the CQAS, the metric remains the template used to evaluate judging.
Keywords: judging, judgement, metric, professionalism, China
What Makes a Good Judge? Perspectives from Indonesia
Simon Butt, 悉尼大学亚洲及太平洋法律中心主任、印度尼西亚法教授
In May 2018, Artidjo Alkostar retired from the Supreme Court of Indonesia after a judicial career spanning almost two decades. Over this period, he presided over many of Indonesia’s most prominent and controversial criminal cases and became renowned for routinely rejecting corruption appeals and increasing prison sentences. In the celebratory publications that marked his retirement, Alkostar was held up as a model judge, with senior legal figures, including Supreme Court judges, singling out his strong work ethic, integrity, simplicity of character, and firmness. Curiously absent from the list of praiseworthy attributes were pre-requisites for effective judging, including adequate legal knowledge, transparent legal reasoning and decision-making, objectivity and avoiding the perception of bias. An analysis of Alkostar’s most notorious decisions suggests that he, and the judges who served with him, did not always clearly display these pre-requisites. This article considers what this says about judging in Indonesia and what might, in practice, be the defining characteristics of a good judge there.
2018年5月，Artidjo Alkostar 在历经近二十年的司法生涯后，从印度尼西亚最高法院退休。在此期间，他裁判了许多印度尼西亚最著名和具争议性的刑事案件，以常拒绝贿赂案件的上诉并且加重刑罚而闻名。在庆祝他退休的出版物中，Alkostar被奉为模范法官。包括最高法院法官在内的许多资深法律人士均强调他良好的职业道德、正直、朴实和坚定的性格。有趣的是，在他的受到称赞的特征中缺少进行有效判决的前提，包括足够的法律知识、透明的法律推理和决策过程、客观性和避免偏见的影响等。对Alkostar作出的最臭名昭著的判决的分析表明，他以及协助他的法官并不一直能清楚地展示以上特征。本文将探讨此发现对印度尼西亚裁判的揭示，以及在实践中什么可能是印度尼西亚一名优秀法官的决定性特征。
Keywords: Indonesia, courts, corruption, criminal law, judicial performance
Punitive Processes? Judging in Thai Lower Criminal Courts
This article examines how Thai courts of the first instance deal with run-of-the-mill criminal cases. How do judges deal with criminal trials of a rather routine nature, often involving defendants from ethnic minorities and reflecting the particular conditions in the provinces concerned? Drawing on participant observation and interview research conducted mainly in two provinces in different regions of the country, the article examines the challenges faced by judges and court officials in dealing with heavy caseloads in a highly bureaucratized system where acquittal rates are extremely low. How far do such cases shed light on how judging is carried out in the majority of Thai courts? What kind of challenges do Thai judges face in adjudicating minor but often messy cases in order to fulfil societal expectations in line with their own understandings of justice?
Keywords: lower courts, criminal cases, legal ethnography, hostile environment, Thailand
二、LEGAL TRANSPLANTS IN CONTEMPORARY ASIA
Legal Transplants in Contemporary Asia: Foreword
The term “legal transplant” refers to the movement of a rule or a system of law from one jurisdiction to another. The term has been widely used in studies of legal development and change since it was introduced by Allan Watson, a Scottish scholar in Roman law and comparative law, in 1974.The jurisdiction in which the transplanted legal rule or legal system originated is usually called a “donor,” while the jurisdiction in which the given legal rule or legal system is transplanted is usually called a “recipient.”
When legal transplant in an Asian jurisdiction was analyzed, the donor was usually a non-Asian jurisdiction or organization.However, Japan has been engaging in several legal assistance activities in Asian jurisdictions since the mid-1900s,while there is an evaluation about China under President Xi Jinping that “Western donors now face competition from China, not only for economic development projects, but in legal development assistance, too.”When I was involved in organizing sessions at the 4th Annual Meeting of the Asian Law and Society Association (ALSA) that was to be held at Osaka University in Toyonaka, Japan, on 13–15 December 2019, I thought that inter-Asian legal transplants might be a good topic and circulated the following call for papers on 6 June 2019:
Asia used to be receivers of legal transplants, but recently some Asian countries, most notably China and Japan, have appeared as donors of legal transplants. In such donor activities, national, scholarly, and practical interests are intertwined, and different ideas on “the rule of law” in general or the most appropriate system for the given issue compete with each other. Those who are interested in this topic are kindly requested to send me a 500-word abstract by July 15.
Nine proposals were accepted and two sessions on legal transplant were held on 13 December 2019. Rob Leflar and Amy H. Shee kindly participated as discussants. This symposium issue includes three of those papers, each of which has been extensively revised after the meeting and through the peer-review process of this Journal.
九个论文草稿被接受并且在2019年12月13日举办了两场关于法律移植的专题会议。罗布·勒弗拉（Rob Leflar）和艾米·H·希（Amy H. Shee）作为与谈人欣然参加。本期专题会议特刊刊载了其中三篇论文，每篇论文都在会后进行了广泛修改并通过了本刊的同行评议程序。
Aziz Ismatov, in “Do Hybrid Legal Systems Matter in Foreign Legal-Aid Programmes? Some Philosophical Aspects of Legal Aid in Uzbekistan as Provided by the Donor States,” compares the relative effectiveness of donor activities by the three consecutive donor countries, namely the US, Germany (EU), and Japan, particularly within the hybrid structure of the Uzbek law, which bears many traces of the USSR legal system and an indigenous and informal Islamic law. Aziz states that while “ideas, values, and practices promoted by the US and, partly, EU legal-aid projects still lack adequate cultural compatibility and credibility with Uzbekistan’s government and society,” “Japanese legal-technical assistance/co-operation is fundamentally different” in that “it puts a specific emphasis on the mutual understanding of society, distinctive culture, and history,” including a “soft and flexible” attitude regarding “human rights and democracy.”
阿齐兹·伊斯马托夫（Aziz Ismatov）在论文《混合型法律体系在外国法律援助计划中重要吗？供体国在乌兹别克斯坦提供法律援助的一些原理性 问题》中，比较了美国、德国（欧盟）和日本连续三个供体国，尤其是在乌兹别克斯坦法律体系这种带有很多苏联法律、本土法律以及非正式伊斯兰法律的痕迹的混合结构中，其法律移植活动的相对有效性。阿齐兹指出，虽然“美国以及部分的欧盟法律援助项目所倡导的观点、价值观和实践与乌兹别克斯坦政府和社会之间仍然缺乏足够的文化兼容性和可信度”，但是“日本的法律-技术援助/合作是根本不同的”，因为“它特别强调对社会、独特文化和历史的相互理解”，包括对于“人权和民主”采取“柔软和灵活”的态度。
Matthew S. Erie and Do Hai Ha, in “Law and Development Minus Legal Transplants: The Example of China in Vietnam,” present a case-study of the legislative process of the SEZ (Special Economic Zone) Bill in Vietnam that was initiated in 2014 and suspended in 2018.Erie and Ha argue that “the most remarkable aspect of borrowing from the Chinese experience was the proactive involvement of the Vietnamese state in developing its SEZs” and that “the Vietnamese government received extensive technical support from Chinese experts.” However, they describe that “[t]he SEZs Bill triggered considerable criticism” and “the most vocal criticism normally came from economists, including domestic, diasporic, and sometimes international experts.” Finally, “[i]n May 2018, a month before the SEZs Bill was scheduled for passage, criticism against the Bill exploded,” “demonstrations involving hundreds or thousands of people took place in major cities and provinces across the country,” and “as a result, the SEZs Bill has been postponed indefinitely.” After presenting hypotheses regarding positive and negative factors on the successful legal transplants from China, the authors conclude that “if China is to emerge as a successful contender in the law-and-development market, it will likely resort to other means, in addition to legal transplants, to secure its investments abroad,” including
马修·S·伊利（Matthew S. Erie）和都海哈（Do Hai Ha），在《法律和发展减去法律移植: 以中国在越南为例》一文中呈现了对越南经济特区法案的立法过程的案例研究。该法案的立法进程于2014年启动但在2018年中止。伊利和哈认为，“借鉴中国经验的最显著方面是越南政府积极主动地参与发展其经济特区”，“越南政府从中国专家那里得到了广泛的技术支持”。然而，他们描述道：“经济特区法案引发了相当多的批评”，“最强烈的批评通常来自于国内的、侨居的、有时还包括国际的经济学家。”最终，“2018年5月，在《经济特区法案》预定通过前一个月，针对该法案的批评爆发了”，“全国各主要城市和省份发生了涉及数百或数千人的示威活动”，“结果，《经济特区法案》被无限期推迟”。在提出影响中国成功进行法律移植的积极和消极因素的假设后，作者得出结论：“如果中国将成为法律和发展市场上的成功竞争者，除了法律移植外，它可能会采取其他的手段来保证其海外投资”，包括：
greater vertical integration of Chinese norms into international economic law and the building of cross-border transnational law, mainly in the form of inter-corporate agreements, international arbitration, and onshoring commercial disputes, each of which is formative of CLD [Chinese Law and Development].
Yuka Kaneko, in “Land-Law Reforms in Vietnam and Myanmar: ‘Legal Transplant’ Viewed from Asian Recipients,” presents a very different paper: she strongly criticizes the reform of positive law by the recipient government based on legal transplants in general for its destruction of traditional rights based on “living law” that has existed among people in affected areas. She traces the process of the introduction of the concept of “land-use right” in Vietnam and the concept of “land-use right for cultivation” in Myanmar, their impact to weaken traditional perpetual right for cultivation and to increase the transferability of farm land, and the rise of resistance and disputes involving affected farmers, with an additional analysis of the failure or insufficiency of mechanisms to solve or prevent disputes. A wide variety of donors appear, including the World Bank, the Asian Development Bank, Japan, the United Nations, and the US, but the problem is not specific donors, but the introduction of positive law that ignores traditional living law. The author states that
[n]ow, in the era of the contemporary “legal transplant,” donors intervene while loudly advocating the protection of small farmers and customary law but, in fact, their legal designs are leading to the commercialization of farmland, through the freedom of disposal, land-expropriation law, vacant-land nationalization, and city-planning law, which draws farmland into the land market.
She concludes the paper by arguing that
when the legislative processes of Asia and Africa are freed from the restraint of “legal transplant,” it may be possible to save the self-contradiction of modern capitalist law from the constraint of belief in perpetual growth and social evolution, through which the human race is placing an excessive load upon the global environment.
当亚洲和非洲的立法过程摆脱了 "法律移植 "的束缚，就有可能将现代资本主义法律的自相矛盾从对于永久增长和社会进化的信仰中解救出来，正是在这种信仰下，人类对于全球环境造成了过度的负担。
Together, these papers present careful case-studies of inter-Asian legal transplants as well as a call for the recognition of living law as a source of law superior to positive law based on legal transplants. I trust that readers will enjoy and learn much from these papers.
Keywords: Legal transplants, Asian law
Do Hybrid Legal System matter in Foreign Legal-Aid Programmes? Some Philosophical Aspects of Legal Aid in Uzbekistan as Provided by the Donor States
Since the fall of socialism in Eastern Europe, the former Soviet Union, and some states of Southeast Asia, the international financial institutions and individual donor states have initiated wide-scale legal-aid programmes to assist these states in their transition from socialism to a market economy. Whereas the aid from financial institutions vis-à-vis recipient states is often agreed upon specific conditionalities, the donor states design their foreign legal aid according to individual preferences, although sometimes with references to universal goals. Currently, various donor states provide legal aid to Uzbekistan. Given the fact that Uzbekistan is the former Soviet Republic that still bears multiple traces of a socialist legal system and additionally integrates indigenous informal law, this research provides an analysis of how different donor states base their legal-aid activities on entirely different philosophies and levels of gravity, and how receptive the hybrid structure of Uzbekistan’s law is towards such aid.
Keywords: Donor states, international financial institutions, foreign aid
Development Minus Legal Transplant : The Example of China in Vietnam
Legal transplants are broadly recognized as one of the main mechanisms by which donor states influence the legal development of recipient states. The experience of China, however, challenges convention. While, in recent years, China has been one of the largest capital-exporting countries in the world and has mobilized law to protect its investment in high-risk recipient states, legal transplants have, to date, not played a major role in China’s approach to law and development. This article examines this puzzle through the case of China’s participation in formulating Vietnam’s 2018 SEZ Bill. In doing so, this article sets forth a number of hypotheses as to why Chinese law has thus far not assumed the form of legal transplant. The example of the SEZ Bill demonstrates how Chinese legal transplants depend as much on the “pull” of recipient states as they do on the “push” of the donor. The case-study of the SEZ Bill raises important questions not only for Chinese law and development, but also, more generally, for the viability of “second-order” legal transplants: those from an Asian donor to an Asian recipient.
Keywords: law and development,legal transplant,China,Vietnam,industrial policy,SEZ
Land-Law Reforms in Vietnam and Myanmar: “Legal Transplant” Viewed from Asian Recipients
This paper focuses on the conflict of norms in the interface between the “transplanted” formal law and the local social norms in the land-law reforms in Vietnam and Myanmar, each representing different legal families, while sharing commonness in that both have attempted law-making in the post-colonial independence period in order to restore the basis of the livelihoods of the local population. Both of the legal concepts of “land-use right” (quyen su dung dat) in Vietnam and “land-use right for cultivation” (loat paing kwint) in Myanmar have been the product of law-makers’ restorative attempts at farmland security, while intentionally avoiding usage of the term “ownership” that would result in the capitalist transaction of land as a commodity. However, the contemporary land-law reforms led by donor-oriented “legal transplant” in these countries have resulted in the plunder of such policy, by reintroducing the same mechanisms of land exploitation as existed in the colonial days. Roaring protests of the local agricultural population seem to be a rising-up of the social norm descended from the immemorial past as an unwritten Constitution to bring an end to the centuries-long movement of “legal transplant” of the modern capitalist law.
本文着眼于越南和缅甸的土地法改革中“移植”的正式法与当地社会规范间的交互。这两个国家代表了不同的法律谱系，但共性在于它们都试图在后殖民独立时期立法以恢复当地居民的生计基础。越南的“土地使用权”（quyen su dung dat）和缅甸的“耕种土地使用权”（loat paing kwint）这两个法律概念皆是立法者试图恢复农地安全，同时有意避免使用“所有权”一词，以免土地被作为一种商品开展资本主义交易的产物。然而，在这些国家中由法律捐助国所主导的“法律移植”所引起的当代土地法改革，却重新引入了与殖民时期相同的土地剥削机制，从而导致了对这一政策的掠夺。当地农业人口的激烈抗议，仿佛是远古时代以来作为一种不成文宪法传承的社会规范，为了结束长达数个世纪的现代资本主义法律的“法律移植”运动而重新抬头。
Keywords:legal transplant,Vietnam land law,Myanmar land law,land-law reform,law and development