Prosecutors in adversarial systems are simultaneously expected to be impartial ministers of justice and partisan advocates. Leaving this tension unaddressed can result in poor-quality prosecutorial decision-making. This article develops a novel “dynamic” framework for prosecutors to navigate between and prioritize these competing considerations, which can be used to understand, evaluate, and improve prosecutorial performance. Under this framework, the prioritization should depend on which function the prosecutor is exercising at any given time. The article then deploys primary data collected in Delhi, through court observation and interviews with judges, lawyers, victims, and victim-support persons, to exemplify and justify the framework.
{"title":"A Dynamic Theory of Prosecutorial Roles in Adversarial Trials","authors":"Arushi Garg","doi":"10.1017/als.2024.12","DOIUrl":"https://doi.org/10.1017/als.2024.12","url":null,"abstract":"<p>Prosecutors in adversarial systems are simultaneously expected to be impartial ministers of justice and partisan advocates. Leaving this tension unaddressed can result in poor-quality prosecutorial decision-making. This article develops a novel “dynamic” framework for prosecutors to navigate between and prioritize these competing considerations, which can be used to understand, evaluate, and improve prosecutorial performance. Under this framework, the prioritization should depend on which function the prosecutor is exercising at any given time. The article then deploys primary data collected in Delhi, through court observation and interviews with judges, lawyers, victims, and victim-support persons, to exemplify and justify the framework.</p>","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"23 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141255193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The consumption of shaojiu or distilled liquor played a significant role in Qing legal culture and contributed to a rise in alcohol-related crimes. Qing officials’ attitudes towards intoxication not only influenced their judgments on many cases, but also reflected important trends of popular beliefs, notions, and practices that constituted shared knowledge and feelings between ordinary people and judges. This paper examines the transformation of Qing judicial practices and concerns regarding alcohol intoxication and crimes, arguing that specific cultural value and ideas that underpinned the public configuration of drinking behaviour during the Qing period contributed to a social pathology around intoxication. Due to the lack of a consistent interpretation of the effects of alcohol on the mind, early Qing officials tended to be lenient towards intoxicated offenders. However, mid-Qing law-makers and rulers recognized the serious administrative concerns associated with heavy drinking and began to conceptualize it as a serious social problem.
{"title":"Interrogating the Drunkards and Representing Drunkenness in the Qing Law","authors":"Jackson Yue Bin Guo","doi":"10.1017/als.2024.4","DOIUrl":"https://doi.org/10.1017/als.2024.4","url":null,"abstract":"<p>The consumption of <span>shaojiu</span> or distilled liquor played a significant role in Qing legal culture and contributed to a rise in alcohol-related crimes. Qing officials’ attitudes towards intoxication not only influenced their judgments on many cases, but also reflected important trends of popular beliefs, notions, and practices that constituted shared knowledge and feelings between ordinary people and judges. This paper examines the transformation of Qing judicial practices and concerns regarding alcohol intoxication and crimes, arguing that specific cultural value and ideas that underpinned the public configuration of drinking behaviour during the Qing period contributed to a social pathology around intoxication. Due to the lack of a consistent interpretation of the effects of alcohol on the mind, early Qing officials tended to be lenient towards intoxicated offenders. However, mid-Qing law-makers and rulers recognized the serious administrative concerns associated with heavy drinking and began to conceptualize it as a serious social problem.</p>","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"258 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140577457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Hong Kong, the percentage of older drug users has increased over the last two decades. However, the motivations behind their drug-use behaviours have received little research attention. This study focuses on older drug users who are enrolled in methadone treatment programmes but still use illicit drugs (mixed use). Some studies in the criminological literature and government discourse consider drug users to be passive and lacking self-control. However, in-depth interviews in with 25 older mixed users (aged over 50 years) in Hong Kong revealed that mixed use is one of the various strategies they actively employ to improve their self-perceived quality of life. Using the framework of the selective optimization with compensation model, this study (1) describes the strategies older mixed users adopt as active agents to improve their self-perceived quality of life while coexisting with their addiction; and (2) explains how these strategies were affected and constrained by Hong Kong’s prohibitionist drug policy. I infer that prohibitionist drug policies that emphasize on total drug abstinence may fail to cater to the needs of older drug users who have undergone several relapses and treatments in their lifetimes and do not think they can give up using drugs. This study also provides evidence to show how some drug users may act as active agents to manage and coexist with their addiction, and their agency seems to be constrained by the wider drug policy implemented in Hong Kong.
{"title":"Coexisting with Drug Addiction: Strategies Used by Hong Kong’s Older Mixed Users to Improve Their Perceived Quality of Life","authors":"Vincent S. Cheng","doi":"10.1017/als.2023.12","DOIUrl":"https://doi.org/10.1017/als.2023.12","url":null,"abstract":"\u0000 In Hong Kong, the percentage of older drug users has increased over the last two decades. However, the motivations behind their drug-use behaviours have received little research attention. This study focuses on older drug users who are enrolled in methadone treatment programmes but still use illicit drugs (mixed use). Some studies in the criminological literature and government discourse consider drug users to be passive and lacking self-control. However, in-depth interviews in with 25 older mixed users (aged over 50 years) in Hong Kong revealed that mixed use is one of the various strategies they actively employ to improve their self-perceived quality of life. Using the framework of the selective optimization with compensation model, this study (1) describes the strategies older mixed users adopt as active agents to improve their self-perceived quality of life while coexisting with their addiction; and (2) explains how these strategies were affected and constrained by Hong Kong’s prohibitionist drug policy. I infer that prohibitionist drug policies that emphasize on total drug abstinence may fail to cater to the needs of older drug users who have undergone several relapses and treatments in their lifetimes and do not think they can give up using drugs. This study also provides evidence to show how some drug users may act as active agents to manage and coexist with their addiction, and their agency seems to be constrained by the wider drug policy implemented in Hong Kong.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"19 10","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139443830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Rachel E. Stern, B. Liebman, Wenwa Gao, Xiaohan Wu
Empirical work consistently finds that Chinese courts resolve civil cases by finding a compromise solution. But beyond this split-it-down-the-middle tendency, when and how do Chinese courts arrive at decisions that feel “fair and just” in cases in which they invoke those ideas? Drawing on a data set of 9,485 tort cases, we find that Chinese courts impose liability on two types of parties with ethical, but not legal, obligation to victims: (1) participants in a shared activity and (2) those who control a physical space. In these cases, Chinese courts stretch the law to spread losses through communities and to acknowledge traumatic harm. Considering fairness, then, returns Chinese courts to their long-standing role as managers of communities who respond to misfortune by assigning legal responsibility to relationships that range from intimate to surprisingly tenuous.
{"title":"Liability Beyond Law: Conceptions of Fairness in Chinese Tort Cases","authors":"Rachel E. Stern, B. Liebman, Wenwa Gao, Xiaohan Wu","doi":"10.1017/als.2023.8","DOIUrl":"https://doi.org/10.1017/als.2023.8","url":null,"abstract":"\u0000 Empirical work consistently finds that Chinese courts resolve civil cases by finding a compromise solution. But beyond this split-it-down-the-middle tendency, when and how do Chinese courts arrive at decisions that feel “fair and just” in cases in which they invoke those ideas? Drawing on a data set of 9,485 tort cases, we find that Chinese courts impose liability on two types of parties with ethical, but not legal, obligation to victims: (1) participants in a shared activity and (2) those who control a physical space. In these cases, Chinese courts stretch the law to spread losses through communities and to acknowledge traumatic harm. Considering fairness, then, returns Chinese courts to their long-standing role as managers of communities who respond to misfortune by assigning legal responsibility to relationships that range from intimate to surprisingly tenuous.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"29 21","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139009117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract A prevalent assumption is that digital legal databases generate an exhaustive and inclusive archive for academics and legal professionals to use for gathering information. Bridging theories and methods from digital media studies and legal anthropology, I challenge this assumption and demonstrate how digitizing law is a politicized process that is tied to legacies of colonialism and modern epistemic frameworks of law and justice. Employing the concept of legal pluralism, I conduct a comparative study of urban secular state courts and rural Islamic/customary non-state courts ( shalish ) in Bangladesh to show how the construction of digital legal databases distorts and erases alternate frameworks of law and women’s socio-legal experiences. I discuss two significant use of digital legal databases to highlight why it is important to study the gaps and prejudices: (1) they are central to generating new forms of archives—digital archives; (2) they provide the data sets to help train artificial intelligence and influence automated outputs. I develop the term “neocolonial digitality” to explain how power related to legacies of colonialism and other forms of discrimination are embedded in the digitizing process. This concept also holds space for the newer forms of hierarchies, exclusions, and power structures that digitality permits, focusing on the particular harms marginalized communities encounter in the Global South.
{"title":"Neocolonial Digitality: Analyzing Digital Legal Databases Using Legal Pluralism","authors":"Salwa Tabassum Hoque","doi":"10.1017/als.2023.9","DOIUrl":"https://doi.org/10.1017/als.2023.9","url":null,"abstract":"Abstract A prevalent assumption is that digital legal databases generate an exhaustive and inclusive archive for academics and legal professionals to use for gathering information. Bridging theories and methods from digital media studies and legal anthropology, I challenge this assumption and demonstrate how digitizing law is a politicized process that is tied to legacies of colonialism and modern epistemic frameworks of law and justice. Employing the concept of legal pluralism, I conduct a comparative study of urban secular state courts and rural Islamic/customary non-state courts ( shalish ) in Bangladesh to show how the construction of digital legal databases distorts and erases alternate frameworks of law and women’s socio-legal experiences. I discuss two significant use of digital legal databases to highlight why it is important to study the gaps and prejudices: (1) they are central to generating new forms of archives—digital archives; (2) they provide the data sets to help train artificial intelligence and influence automated outputs. I develop the term “neocolonial digitality” to explain how power related to legacies of colonialism and other forms of discrimination are embedded in the digitizing process. This concept also holds space for the newer forms of hierarchies, exclusions, and power structures that digitality permits, focusing on the particular harms marginalized communities encounter in the Global South.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"111 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135592754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Transformative Evolution of Human Dignity in Asia’s Modern State-Building Projects - Human Dignity in Asia: Dialogue Between Law and Culture. Edited by Jimmy Chia-Shin Hsu. Cambridge: Cambridge University Press, 2022. 386 pp. US$140.00
{"title":"The Transformative Evolution of Human Dignity in Asia’s Modern State-Building Projects - Human Dignity in Asia: Dialogue Between Law and Culture. Edited by Jimmy Chia-Shin Hsu. Cambridge: Cambridge University Press, 2022. 386 pp. US$140.00","authors":"Yi-Li Lee","doi":"10.1017/als.2023.17","DOIUrl":"https://doi.org/10.1017/als.2023.17","url":null,"abstract":"The Transformative Evolution of Human Dignity in Asia’s Modern State-Building Projects - Human Dignity in Asia: Dialogue Between Law and Culture. Edited by Jimmy Chia-Shin Hsu. Cambridge: Cambridge University Press, 2022. 386 pp. US$140.00","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"2015 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136060606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Drawing on the theory of the legal opportunity structure, this article traces the progress of prison reform in Taiwan by highlighting how a case of parole revocation in the beginning led to an overhaul of the prison system in the end. This article argues that, through four interpretations of the Constitutional Court and the legal opportunity structure shaped thereby, including the split between courts, creation and expansion of inmates’ access to court, and the support from allies, the prison reform was eventually achieved. Theoretically, this article makes two contributions to the literature: (1) the combination of inactive legislature and reactive executive branch as the political context is decisive to the openness of the legal opportunity structure for it increases the receptivity of a proactive judiciary; (2) the international human rights frame incorporated into the legal stock by the Constitutional Court made the prison reform an ongoing process rather than a done work.
{"title":"Innovation through Litigation: Prison Reform and the Legal Opportunity Structure in Taiwan","authors":"Mao Lin","doi":"10.1017/als.2023.13","DOIUrl":"https://doi.org/10.1017/als.2023.13","url":null,"abstract":"\u0000 Drawing on the theory of the legal opportunity structure, this article traces the progress of prison reform in Taiwan by highlighting how a case of parole revocation in the beginning led to an overhaul of the prison system in the end. This article argues that, through four interpretations of the Constitutional Court and the legal opportunity structure shaped thereby, including the split between courts, creation and expansion of inmates’ access to court, and the support from allies, the prison reform was eventually achieved. Theoretically, this article makes two contributions to the literature: (1) the combination of inactive legislature and reactive executive branch as the political context is decisive to the openness of the legal opportunity structure for it increases the receptivity of a proactive judiciary; (2) the international human rights frame incorporated into the legal stock by the Constitutional Court made the prison reform an ongoing process rather than a done work.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47704505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jianhua Xu, Guyu Sun, Sinan Wu, Shangyi Zhu, You Zhou
Existing literature has highlighted the importance of recognizing health fraud offenders’ intentional manipulations of victims’ vulnerabilities. However, the manipulation tactics of health fraud have received little attention. This study aims to extend the current understanding of health fraud by incorporating the concept of emotional labour. Nested in the Chinese context, which owns the most populous ageing population, three sets of qualitative data were collected, including 13 semi-structured interviews, 233 judicial documents, and 197 media reports. The findings suggest that health fraud offenders utilized three types of emotional labour as means of committing crime: including the labour of anxiety relief, the labour of filial piety, and the labour of social networking. This article not only provides novel insights into understanding health fraud, but also contributes to introducing the concept of emotional labour in criminological and socio-legal studies.
{"title":"Understanding Health Fraud Offenders in China: An Emotional Labour Perspective","authors":"Jianhua Xu, Guyu Sun, Sinan Wu, Shangyi Zhu, You Zhou","doi":"10.1017/als.2023.14","DOIUrl":"https://doi.org/10.1017/als.2023.14","url":null,"abstract":"\u0000 Existing literature has highlighted the importance of recognizing health fraud offenders’ intentional manipulations of victims’ vulnerabilities. However, the manipulation tactics of health fraud have received little attention. This study aims to extend the current understanding of health fraud by incorporating the concept of emotional labour. Nested in the Chinese context, which owns the most populous ageing population, three sets of qualitative data were collected, including 13 semi-structured interviews, 233 judicial documents, and 197 media reports. The findings suggest that health fraud offenders utilized three types of emotional labour as means of committing crime: including the labour of anxiety relief, the labour of filial piety, and the labour of social networking. This article not only provides novel insights into understanding health fraud, but also contributes to introducing the concept of emotional labour in criminological and socio-legal studies.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48677900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"SCO and New Horizons for the Multi-Polar World - The Shanghai Cooperation Organization: Exploring New Horizons. By Sergey Marochkin and Yury Bezborodov (eds.), New York: Routledge, 2022. 262 pp. Hardcover $153.00","authors":"R. Khalafyan, S. Racheva","doi":"10.1017/als.2023.15","DOIUrl":"https://doi.org/10.1017/als.2023.15","url":null,"abstract":"","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49529453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The past two decades have witnessed Macao’s development into the casino capital of the world. Casinos have significantly transformed all respects of Macao society—a phenomenon termed as the casinoization of Macao. While much research has explored how casinoization has affected Macao’s socioeconomic developments, empirical research on the relationship between casinoization and law enforcement agencies is extremely limited. Using official statistics and interviews with serving and retired police officers as well as police applicants in Macao, this article examines the quick-money mentality, laissez-faire regulation, and the paradox of plenty, three features of casinoization, and their profound impact on the Macao police. First, the early phase of casino liberalization created a draining effect on human capital from the police force. Second, the lucrative casino tax revenues empowered the government to resolve the labour shortage issue and significantly improve the police image. Third, casinoization inadvertently reinforced the colonial legacy of laissez-faire regulation, hampering the progress of institutional reforms. Fourth, the decline of casino has contributed to the unprecedented “police fever” among the youth in Macao.
{"title":"How Casinoization Affects the Police in Macao","authors":"Tang In Lao, Jianhua Xu","doi":"10.1017/als.2023.11","DOIUrl":"https://doi.org/10.1017/als.2023.11","url":null,"abstract":"\u0000 The past two decades have witnessed Macao’s development into the casino capital of the world. Casinos have significantly transformed all respects of Macao society—a phenomenon termed as the casinoization of Macao. While much research has explored how casinoization has affected Macao’s socioeconomic developments, empirical research on the relationship between casinoization and law enforcement agencies is extremely limited. Using official statistics and interviews with serving and retired police officers as well as police applicants in Macao, this article examines the quick-money mentality, laissez-faire regulation, and the paradox of plenty, three features of casinoization, and their profound impact on the Macao police. First, the early phase of casino liberalization created a draining effect on human capital from the police force. Second, the lucrative casino tax revenues empowered the government to resolve the labour shortage issue and significantly improve the police image. Third, casinoization inadvertently reinforced the colonial legacy of laissez-faire regulation, hampering the progress of institutional reforms. Fourth, the decline of casino has contributed to the unprecedented “police fever” among the youth in Macao.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44445836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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