Abstract The Hong Kong statute criminalizing disrespect of the Chinese national anthem, passed in 2020, is one of many recent moves to suppress political dissent in the former British colony. The law restricts freedom of political expression, but its constitutionality is practically assured courtesy of earlier decisions upholding laws against flag desecration. This article draws on sociological and political literature to argue that symbolic nationalism, particularly when given the force of law, is a tool of the authoritarian state. Against this backdrop, it critically and comparatively analyses Hong Kong judicial decisions upholding the suppression of symbolic dissent, assessing their doctrinal coherence, normative defensibility, and consequences. It concludes with observations on the efficacy of attempts to enforce patriotic orthodoxy and on how deference to authoritarianism affects the rule of law.
{"title":"Mandating Symbolic Patriotism: China’s Flag and Anthem in the Hong Kong Special Administrative Region","authors":"Brendan Clift","doi":"10.1017/als.2020.31","DOIUrl":"https://doi.org/10.1017/als.2020.31","url":null,"abstract":"Abstract The Hong Kong statute criminalizing disrespect of the Chinese national anthem, passed in 2020, is one of many recent moves to suppress political dissent in the former British colony. The law restricts freedom of political expression, but its constitutionality is practically assured courtesy of earlier decisions upholding laws against flag desecration. This article draws on sociological and political literature to argue that symbolic nationalism, particularly when given the force of law, is a tool of the authoritarian state. Against this backdrop, it critically and comparatively analyses Hong Kong judicial decisions upholding the suppression of symbolic dissent, assessing their doctrinal coherence, normative defensibility, and consequences. It concludes with observations on the efficacy of attempts to enforce patriotic orthodoxy and on how deference to authoritarianism affects the rule of law.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"500 - 518"},"PeriodicalIF":0.8,"publicationDate":"2021-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43068796","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}
This paper analyzes how illegality can be legitimized in authoritarian states by examining a contested case of transnational illegal drug brokerage in China. Triangulating news articles, legal documents, and interviews, the study distinguishes between two pathways of illegality legitimation: depoliticized and politicized. I argue that the depoliticized pathway is made possible through pragmatic, moral, and legalistic frames, whereas the politicized pathway builds upon an institutional frame. I also identify the media as essential agents of illegality legitimation. While illegal-practice participants and the legal authority tend to only mobilize depoliticized frames, the media make both depoliticized and politicized efforts. Through this in-depth analysis, the paper deepens our understanding of the social construction of illegality and the intricate relation between law, media, and society within authoritarian states.
{"title":"Legitimation of Illegality in Authoritarian States: The Case of Transnational Illegal Drug Brokerage in China","authors":"Lantian Li","doi":"10.1017/als.2020.57","DOIUrl":"https://doi.org/10.1017/als.2020.57","url":null,"abstract":"\u0000 This paper analyzes how illegality can be legitimized in authoritarian states by examining a contested case of transnational illegal drug brokerage in China. Triangulating news articles, legal documents, and interviews, the study distinguishes between two pathways of illegality legitimation: depoliticized and politicized. I argue that the depoliticized pathway is made possible through pragmatic, moral, and legalistic frames, whereas the politicized pathway builds upon an institutional frame. I also identify the media as essential agents of illegality legitimation. While illegal-practice participants and the legal authority tend to only mobilize depoliticized frames, the media make both depoliticized and politicized efforts. Through this in-depth analysis, the paper deepens our understanding of the social construction of illegality and the intricate relation between law, media, and society within authoritarian states.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44404332","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 The place of arbitration within the Syrian legal system has received scant academic and professional attention, and as such, remains largely unstudied. Shedding much-needed light on the nature of arbitration in Syria as a resilient form of ancient customary Arab alternative dispute resolution, this contribution appraises the salient features of the Syrian Arbitration Law 2008 and arbitration-related provisions within recent Syrian legislation. It aims to understand the position of arbitration in Syria between existing national and international law frameworks for dispute settlement and to assess the potential for establishing independent, transparent, and efficient tribunals to resolve disputes arising out of ongoing conflicts that have plagued the country since 2011. If arbitration proves to be a mechanism for ordering the peaceful settlement of postwar disputes within and concerning Syria, parties, practitioners, and stakeholders must employ perspectives that include and are capable of navigating Syria’s existing arbitration landscape.
{"title":"Arbitration in Syria: Navigating Postwar Disputes","authors":"Faris Nasrallah","doi":"10.1017/als.2021.35","DOIUrl":"https://doi.org/10.1017/als.2021.35","url":null,"abstract":"Abstract The place of arbitration within the Syrian legal system has received scant academic and professional attention, and as such, remains largely unstudied. Shedding much-needed light on the nature of arbitration in Syria as a resilient form of ancient customary Arab alternative dispute resolution, this contribution appraises the salient features of the Syrian Arbitration Law 2008 and arbitration-related provisions within recent Syrian legislation. It aims to understand the position of arbitration in Syria between existing national and international law frameworks for dispute settlement and to assess the potential for establishing independent, transparent, and efficient tribunals to resolve disputes arising out of ongoing conflicts that have plagued the country since 2011. If arbitration proves to be a mechanism for ordering the peaceful settlement of postwar disputes within and concerning Syria, parties, practitioners, and stakeholders must employ perspectives that include and are capable of navigating Syria’s existing arbitration landscape.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"10 1","pages":"219 - 240"},"PeriodicalIF":0.8,"publicationDate":"2021-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43820493","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}
Right before the COVID-19 pandemic swept across the whole world, Professor Ji Weidong contacted me for a Special Issue on international arbitration in the Asia-Pacific region for this publication. I was somewhat hesitating in a sense that international arbitration is not really an academic subject, but rather a pragmatic matter. However, the mere fact that Professor Ji likes to have a Special Issue dealing with the subject was a good indication that the academic community is interested in arbitration in Asia. Arbitration in Asia can indeed have contemporary and future practical importance for international business law. The reasons why international arbitration in Asia warrants attention are multifold. For the last two decades, Asia has become the emerging international arbitral centre; not only were more and more Asian arbitration institutions set up in the region and those centres have increasingly more international arbitration cases, but also several traditional Western international arbitration institutions have come to Asia and opened their offices in cities such as Hong Kong, Singapore, Shanghai, etc. Arbitration is a preferred dispute-resolution means for the transnational business community. The cost-effectiveness, flexibility, and confidentiality of the arbitration proceedings together with the international enforceability of arbitration awards have encouraged many international business operators to choose arbitration so that their future dispute will not fall into the hands of national judges whose independence and impartiality are allegedly questionable. This is particularly true when the rule-of-law record of a country is somewhat mediocre and foreign business people do not want to get into a “home justice” legal procedure. With the case-load increase comes the desire to improve the way to conduct arbitration. Indeed, arbitration has been constantly improved over the last several decades and Asia is not an exception. On the same issue of efficiency and transparency, HiroyukinTezuk and Mihiro Koeda have dealt with the efficiency and transparency in a geographically more narrow and typologically larger context; they look at efficiency and transparency issues from the latest development of alternative dispute resolution (ADR) in Japan. Japan is one of the biggest economies and has one of the most developed technologies in the world. However, from both the internationalization of Japanese law firms and the development standpoint of Japanese arbitration institutions, Japan was quite lagging behind. Over the last several years, Japan has doubled its effort to rectify this backwardness by promulgating new laws, setting up new institutions, and implementing new technics. Alvin Yeo and Chan Hock Keng’s paper deals with the arbitration and court-case handling during the pandemic to adapt to domestic and international travel restrictions. Electronic litigation systems and video conferencing have very suddenly become the
{"title":"Editorial","authors":"Jingzhou Tao","doi":"10.1017/als.2021.30","DOIUrl":"https://doi.org/10.1017/als.2021.30","url":null,"abstract":"Right before the COVID-19 pandemic swept across the whole world, Professor Ji Weidong contacted me for a Special Issue on international arbitration in the Asia-Pacific region for this publication. I was somewhat hesitating in a sense that international arbitration is not really an academic subject, but rather a pragmatic matter. However, the mere fact that Professor Ji likes to have a Special Issue dealing with the subject was a good indication that the academic community is interested in arbitration in Asia. Arbitration in Asia can indeed have contemporary and future practical importance for international business law. The reasons why international arbitration in Asia warrants attention are multifold. For the last two decades, Asia has become the emerging international arbitral centre; not only were more and more Asian arbitration institutions set up in the region and those centres have increasingly more international arbitration cases, but also several traditional Western international arbitration institutions have come to Asia and opened their offices in cities such as Hong Kong, Singapore, Shanghai, etc. Arbitration is a preferred dispute-resolution means for the transnational business community. The cost-effectiveness, flexibility, and confidentiality of the arbitration proceedings together with the international enforceability of arbitration awards have encouraged many international business operators to choose arbitration so that their future dispute will not fall into the hands of national judges whose independence and impartiality are allegedly questionable. This is particularly true when the rule-of-law record of a country is somewhat mediocre and foreign business people do not want to get into a “home justice” legal procedure. With the case-load increase comes the desire to improve the way to conduct arbitration. Indeed, arbitration has been constantly improved over the last several decades and Asia is not an exception. On the same issue of efficiency and transparency, HiroyukinTezuk and Mihiro Koeda have dealt with the efficiency and transparency in a geographically more narrow and typologically larger context; they look at efficiency and transparency issues from the latest development of alternative dispute resolution (ADR) in Japan. Japan is one of the biggest economies and has one of the most developed technologies in the world. However, from both the internationalization of Japanese law firms and the development standpoint of Japanese arbitration institutions, Japan was quite lagging behind. Over the last several years, Japan has doubled its effort to rectify this backwardness by promulgating new laws, setting up new institutions, and implementing new technics. Alvin Yeo and Chan Hock Keng’s paper deals with the arbitration and court-case handling during the pandemic to adapt to domestic and international travel restrictions. Electronic litigation systems and video conferencing have very suddenly become the","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"10 1","pages":"163 - 164"},"PeriodicalIF":0.8,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49637007","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 This paper analyses how the legal consciousness of Chinese enterprise managers has transformed in the face of drastic changes brought along by major events in socialist China. During the past 70 years, there have been in place a series of radical and pervasive changes in the legal framework constituted by a communist system frequented by mass political campaigns, trailed by a massive liberalized move towards a market economy. By building upon the thesis of legal-consciousness narratives suggested by Ewick and Silbey, this paper discusses how Chinese managers have evolved through various states of “With the Law,” “Against the Law,” and “Under the Law” legal consciousness. It is suggested that, in the coming era of globalization under socialist China, Chinese enterprise managers may start to embrace a new narrative of legal consciousness—“In the Law”—by participating more actively in the socialist system with Chinese characteristics.
{"title":"How Has the Legal Consciousness of Chinese Enterprise Managers Transformed since 1949? A Study of Chinese Enterprises under Socialism","authors":"Alvin Hoi-Chun Hung","doi":"10.1017/als.2020.56","DOIUrl":"https://doi.org/10.1017/als.2020.56","url":null,"abstract":"Abstract This paper analyses how the legal consciousness of Chinese enterprise managers has transformed in the face of drastic changes brought along by major events in socialist China. During the past 70 years, there have been in place a series of radical and pervasive changes in the legal framework constituted by a communist system frequented by mass political campaigns, trailed by a massive liberalized move towards a market economy. By building upon the thesis of legal-consciousness narratives suggested by Ewick and Silbey, this paper discusses how Chinese managers have evolved through various states of “With the Law,” “Against the Law,” and “Under the Law” legal consciousness. It is suggested that, in the coming era of globalization under socialist China, Chinese enterprise managers may start to embrace a new narrative of legal consciousness—“In the Law”—by participating more actively in the socialist system with Chinese characteristics.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"286 - 315"},"PeriodicalIF":0.8,"publicationDate":"2021-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42091065","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 After the 9/11 incidents, global counter-terrorism efforts have focused increasingly on community policing as a proactive and preventive approach to thwarting terrorism. This article explores the developments, tensions, and prospects of counter-terrorism community policing (“CTCP”) in China. By applying the concepts of police legitimacy and social capital to the normative and operational framework of CTCP, I argue that this vital counter-terrorism endeavour is fraught with problems, for both Chinese police to procure effective civic co-operation and the local community to develop its capacity as a self-reliant player in preventing terrorism. More specifically, community co-operation in China’s CTCP is largely an obligatory process in the form of forced mobilization by local bureaucracies that does not necessarily entail trust and support from citizens based on their legitimacy judgement. My analysis on social capital building in Chinese communities further suggests that both police and citizens are unable to form deep and meaningful partnerships for counter-terrorism. While an authoritarian regime like China is reluctant to cede substantial power and authority to people in most of all aspects of policing, the public has become apathetic towards and alienated from voluntary collaboration with police in formal community affairs—a dichotomy lies between reality and ideal in China’s CTCP.
{"title":"Policing Terrorism in the Chinese Community: A Critical Analysis","authors":"Enshen Li","doi":"10.1017/als.2020.32","DOIUrl":"https://doi.org/10.1017/als.2020.32","url":null,"abstract":"Abstract After the 9/11 incidents, global counter-terrorism efforts have focused increasingly on community policing as a proactive and preventive approach to thwarting terrorism. This article explores the developments, tensions, and prospects of counter-terrorism community policing (“CTCP”) in China. By applying the concepts of police legitimacy and social capital to the normative and operational framework of CTCP, I argue that this vital counter-terrorism endeavour is fraught with problems, for both Chinese police to procure effective civic co-operation and the local community to develop its capacity as a self-reliant player in preventing terrorism. More specifically, community co-operation in China’s CTCP is largely an obligatory process in the form of forced mobilization by local bureaucracies that does not necessarily entail trust and support from citizens based on their legitimacy judgement. My analysis on social capital building in Chinese communities further suggests that both police and citizens are unable to form deep and meaningful partnerships for counter-terrorism. While an authoritarian regime like China is reluctant to cede substantial power and authority to people in most of all aspects of policing, the public has become apathetic towards and alienated from voluntary collaboration with police in formal community affairs—a dichotomy lies between reality and ideal in China’s CTCP.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"466 - 499"},"PeriodicalIF":0.8,"publicationDate":"2021-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43758874","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}
This paper investigates how individuals such as judges, lawyers, clients, and court staffers as well as institutions are elevating litigation costs in Bangladesh in multiple ways. It explores how the existing law and procedures as well as key institutions further promote case delay. It also examines the ways in which police departments and the prosecution contribute to elongate criminal trials and invite additional litigation costs. Empirical data collected through in-depth interviews are analyzed, drawing propositions to individuals’ contributions to delay in case-processing time and hike up litigation costs. Data analysis also assesses common people’s perceptions and expectations from the justice sector. Contemporary legal research has been critically analyzed, where needed.
{"title":"Role of Clients, Lawyers, Judges, and Institutions in Hiking Litigation Costs in Bangladesh: An Empirical Study","authors":"U. Tahura","doi":"10.1017/als.2020.26","DOIUrl":"https://doi.org/10.1017/als.2020.26","url":null,"abstract":"\u0000 This paper investigates how individuals such as judges, lawyers, clients, and court staffers as well as institutions are elevating litigation costs in Bangladesh in multiple ways. It explores how the existing law and procedures as well as key institutions further promote case delay. It also examines the ways in which police departments and the prosecution contribute to elongate criminal trials and invite additional litigation costs. Empirical data collected through in-depth interviews are analyzed, drawing propositions to individuals’ contributions to delay in case-processing time and hike up litigation costs. Data analysis also assesses common people’s perceptions and expectations from the justice sector. Contemporary legal research has been critically analyzed, where needed.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43223059","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":"China’s criminal justice institutions - \u0000Construction of Guilt: An Empirical Account of Routine Chinese Injustice By Yu MOU Oxford, Hart Publishing, 2020. 280 pp. Hardcover, $79.00","authors":"Xiaochen Liang","doi":"10.1017/als.2021.29","DOIUrl":"https://doi.org/10.1017/als.2021.29","url":null,"abstract":"","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44904615","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":"Cross-border dispute resolutions in Asia and beyond - New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution By Luke Nottage, Shahla ALI, Bruno JETIN, & Nobumichi TERAMURA, eds. Alphen aan den Rijn: Kluwer Law International BV, 2020. 370 pp. Hardcover $161.00","authors":"Leon Wolff","doi":"10.1017/als.2021.28","DOIUrl":"https://doi.org/10.1017/als.2021.28","url":null,"abstract":"","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"134 2","pages":"579-582"},"PeriodicalIF":0.8,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138514348","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":"Malaysia’s language shift and post-colonial common law - \u0000Language Choice in Postcolonial Law: Lessons from Malaysia’s Bilingual Legal System By Richard POWELL Singapore: Springer, 2021. 324 pp. Paperback $10.00","authors":"A. Hashim","doi":"10.1017/als.2021.27","DOIUrl":"https://doi.org/10.1017/als.2021.27","url":null,"abstract":"","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48380749","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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