Inter-Asian Law

eds. Matthew S. Erie & Ching-Fu Lin

May 8, 2024

Available on SSRN here.

Draft Introduction to the forthcoming edited volume "Inter-Asian Law" in American Society of Comparative Law's Studies in Comparative Law (Cambridge University Press). Exploring emerging dynamics between Asian jurisdictions.

Abstract

This introduction to the edited volume Inter-Asian Law lays out the conceptual framework for the book which features sixteen chapters by leading scholars working on Asian law throughout the world. The project is the result of a workshop at Tsing Hua University in Hsinchu Taiwan in December 2022 funded by the Taiwanese Ministry of Science & Technology, the Chiang Ching-kuo Foundation, and the European Research Council.

What happens when Western law is no longer the default referent for legal modernity? This is a deceptively simple question, but its implications are potentially significant for such fields as comparative law, law and development, and international law. The question has moorings in legal history (the sources and models for legal development, colonialism, the predominance of certain “legal families”, etc.) and, likewise, is twinned with the relationship between law and the economic relations between states (namely, trade and investment). It further may both reflect and influence geopolitics, the concentration of power and influence within certain states over others, and whether the world is organized under “unipolar” or “multi-polar” configurations.

Much of conventional comparative law and the sociology of law is predicated on the idea that modern law flows West to East and North to South. Likewise, world systems theory, modernization theory, and new institutional economics all privilege Western institutions, norms, ideologies, and law as the center and non-Western systems as peripheral. This same logic is sedimented into centuries of inter-state behavior and foreign policy: first through the colonial projects and military expansionism of the nineteenth centuries, then the informal trade empires of the twentieth century, and in the twenty-first century, state projects centered on legal development assistance, “rule of law” programs, and, most recently, investor-state dispute settlement, digital development, and regulatory coherence. States work alongside commercial lawyers, financial institutions, chambers of commerce, and civil society—not always in concert but in ways that dovetail—to ensure that legal ideas, choice of law in contracts, investment protection, international standards-setting, and bureaucracies become routinized. The result is the continual minting of Western law as the blueprint for modernity.

Consequently, Western law, namely, Anglo-American common law and European civil law, have spread the world over. This diffusion was secured by the force of imperialism and associated forms of Enlightenment and industrialization, but also through the path dependence of everyday legal practice and the institutionalization of power in international organizations and treaties. This power institutionalization and path dependence can be seen in the ways in which decolonial states draft their constitutions, international legal and financial organizations are created, and cross-border transactions are structured.

The “what if” question posed by this volume is not to deny the relevance of Western law as the primary source for legal modernization, but to open up new and additional possibilities for alternative sources and methodologies. Hence, this volume is more a reformation than a refutation of orthodox thinking. It is an experimental and preliminary effort to think through other beginnings and endings for law’s movement from one jurisdiction to another, laying the grounds for new interactions between legal systems.

Building on the paradigm of “Inter-Asia” which has gained ascendance in recent years across a number of scholarly fields in the social sciences and humanities, “Inter-Asian Law” (IAL) points to an emerging field of comparative law that explores the legal interactions—historical and contemporary—between and among Asian jurisdictions. These interactions lead to a number of important formations (some caused bilaterally, others resulting from pan-regional trends), including (informal) empire, legal transplantation, law and development, multilateralism and trade blocks, global value chains, transnational orders, judicial networks, legal educational exchange, and digital integration, to name a few.