JournalTOCs

Asian Journal of Comparative Law
Journal Prestige (SJR): 0.129

Number of Followers: 11

Hybrid journal (It can contain Open Access articles)
ISSN (Print) 2194-6078 - ISSN (Online) 1932-0205
Published by Cambridge University Press

[387 journals]

ACL volume 14 issue 2 Cover and Front matter
- PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.41
  Issue No: Vol. 14, No. 2 (2019)
ACL volume 14 issue 2 Cover and Back matter
- PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.40
  Issue No: Vol. 14, No. 2 (2019)
Negotiating Legal Reform through Reception of Law: The Missing Role of
Mixed Legal Transplants
- Authors: Kien TRAN; Nam Ho PHAM, Quynh-Anh Lu NGUYEN
  Pages: 175 - 209
  Abstract: Our research proposes ‘mixed legal transplant’ as a new concept in theories of legal transplantation. While the concept of legal transplantation is real, the phenomenon is much more complicated than what is often depicted and discussed by the academic community. In modern times, legal transplantation is often an informed reception by independent sovereign nations or people of two or more sets of rules from different jurisdictions, rather than a simplistic and passive reception of rules from one country to another. Using Vietnam as a case study, this article analyzes the deliberate consideration of two different models of precedent in the civil and common law traditions by Vietnamese lawmakers, and their choice of a mixed legal transplant in the hope that it would be best suited to the needs of a socialist country in transition. Its methods and results, however, are still in doubt and have been criticized as possibly creating uncertainty due to their structural incoherence. This article therefore concludes by proposing recommendations based on legal tradition to correct the misuse of the mixed legal transplant in Vietnam, and we hope that these recommendations can serve as a model for other countries.
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.36
  Issue No: Vol. 14, No. 2 (2019)
To Sue or Not to Sue: How Afghan Merchants Strategically Choose to Use or
Avoid Courts
- Authors: Haroun RAHIMI
  Pages: 211 - 244
  Abstract: This article explores how and why Afghan merchants choose to use courts or informal dispute resolution methods. It goes beyond the common corruption and inefficiency arguments, which maintain that Afghans do not use courts because they are corrupt and inefficient. It leverages rich, original data on variation of dispute resolution practices across provinces and types of disputes to gain insights into Afghan merchants’ dispute resolution decisions. In so doing, I reveal a more complex picture of commercial dispute resolution in Afghanistan. In this article, I demonstrate that Afghan merchants do choose courts when courts enforce the parties’ expectations and courts’ judgments are necessary and effective. Moreover, while Afghan merchants do prefer informal dispute resolution methods, they do so because informal methods hold important advantages over courts in the context of Afghanistan where the formal property rights system is a failure, and the business climate is highly volatile.
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.35
  Issue No: Vol. 14, No. 2 (2019)
Reforming the Constitution; Reforming the Postcolonial State'
Indigenous Peoples and Constitutional Reforms in Taiwan
- Authors: Jeroen VAN BEKHOVEN
  Pages: 245 - 278
  Abstract: When an authoritarian state starts democratic transition reforms, the constitution can facilitate such reforms. However, a little-studied role of the constitution during democratic transition is that it can back indigenous peoples’ demands. Constitutional reform during democratic transition enables indigenous peoples to challenge the state's ‘internal colonialism’. The democratic institutions and democratic rights established and guaranteed by the constitution open possibilities for indigenous peoples to push for constitutional reforms that promote ‘internal decolonization’. This means that indigenous peoples are empowered and that their interests are protected. For indigenous peoples, a ‘double transition’ can thus take place: from authoritarianism to democracy, and from internal colonialism to internal decolonization. A case study of the constitutional reforms in Taiwan confirms that the constitution can guarantee indigenous peoples’ participation in constitutional reform. But in Taiwan, this involvement has not led to meaningful incorporation of indigenous peoples in the constitution, and it has not fully promoted double transition. The case study highlights serious problems for indigenous peoples to realize strong constitutional reforms. This article provides a foundation for additional research on constitutional change and indigenous peoples. This is critical to advance constitutional theory and to ascertain whether and how constitutions can give indigenous peoples a voice.
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.28
  Issue No: Vol. 14, No. 2 (2019)
Institutional Investor Stewardship in the UK and Malaysia: Functionally
Similar, Contextually Challenged
- Authors: Petrina Tjin Yi TAN
  Pages: 279 - 304
  Abstract: Institutional investors are acknowledged as an influential force in markets worldwide. As a result of increased focus on the impact from the investing and shareholding practices of institutional investors, stewardship codes were first introduced in the UK, followed by Malaysia. This article evaluates the theory and practice of institutional investor stewardship in Malaysia through functional and contextual lenses, as juxtaposed against the more established position of stewardship in the UK. Notwithstanding an analogous legal framework for shareholder rights and the textual similarities of the UK Stewardship Code and Malaysian Code for Institutional Investors, the dominance of government-linked investment companies and government-linked companies in Malaysia results in a distinct set of issues in relation to institutional investor stewardship. This article then argues that the stewardship codes are in themselves insufficient in increasing the quality and scope of institutional investor engagement as they fail to address the underlying agency conflicts between the institutional investors and ultimate beneficiaries or clients. In learning from the UK's experience, it is important that Malaysian policymakers pay attention to the overarching structural factors and incentives driving institutional investor engagement alongside the development and take-up of the stewardship code.
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.31
  Issue No: Vol. 14, No. 2 (2019)
Transformative Vision of Islamic Jurisprudence and the Pursuit of Common
Ground for the Social Good in Pluralist Societies
- Authors: Ezieddin ELMAHJUB
  Pages: 305 - 335
  Abstract: Notions of the social good including rights, fairness, and economic efficiency influence our choices of law and policymaking. The discussion on social good is normally a heated one in pluralistic societies with multiple worldviews on the right thing to do. This article brings a novel Islamic perspective on the social good in pluralistic societies. In doing so, it makes and defends three propositions: first, religious notions of the social good, including those derived from the Islamic worldview, should not be excluded from public justifications when making moral and policy choices. There is no good reason for plural/secular societies to reject the benefits of religious presence in public discourse given the overwhelming evidence on religious precepts being a mobilizing force to promote co-existence and social cooperation. Second, Islamic notions of social good can contribute to that end. The article criticizes the common perception of Islamic ethics that views Islamic doctrine as a rigid positivist system which imposes inflexible moral codes limiting the influence of independent human intellect and agency. I show that Islamic notions of the social good are dynamic and adaptable to change. The third part of the article shows that the social good in Islamic doctrine has always been defined with reference to essential human needs, including the promotion of life, intellect, social cooperation, and justice. At their core, Islamic notions of the social good exhibit an overarching deontological orientation towards moral choices. They broadly overlap with comparative and influential frameworks on human flourishing, including the ‘Human Development Paradigm’ and the ‘Capabilities Approach’.
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.34
  Issue No: Vol. 14, No. 2 (2019)
Judicial Independence in Dominant Party States: Singapore's Possibilities
for China
- Authors: Lance ANG; Jiangyu WANG
  Pages: 337 - 371
  Abstract: Courts in China are often criticized for lacking ‘independence’ from the Chinese party-state. Entrenched perceptions of interference in the judiciary by the political branches of government have continued to fuel public resentment in recent years, risking the legitimacy of the party-state. Such criticisms, however, often fail to appreciate the complex political reality in China and the evolving role of Chinese courts following China's incremental legal reforms since the reform era. What does ‘judicial independence’ mean in the context of a socialist rule of law state such as China' More importantly, can we identify the touchstone of ‘independence’ that should be intrinsic in any judicial institution' In recognition of the resilience of the Chinese party-state in the foreseeable future, the authors contend that widening the scope of judicial independence, as conceptualized herein, in line with China's ongoing judicial reforms provides a better tool for promoting economic development and good governance and enhancing the state's legitimacy in a dominant party state. In this regard, insights are drawn from Singapore, which presents two broad lessons for China: first, a rule of law framework can be established in which the state in a non-Western liberal democracy respects the autonomy of the courts and the judiciary strictly enforces the law enacted by the state within its institutional limits; second, judicial pragmatism in the exercise of judicial power enables the courts to ensure that governmental power is exercised in accordance with the principle of legality, which ensures good governance in a polity governed by a strong state. Contrary to claims that such reforms may serve as an apology for power in China, it is hoped that such reforms may lay the foundation for normative constitutionalism in the future.
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.29
  Issue No: Vol. 14, No. 2 (2019)
Socialist+Law+in+Socialist+East+Asia+by+Hualing+FU,+John+GILLESPIE,+Pip+NICHOLSON,+and+William+Edmund+PARTLETT+(eds)+Cambridge:+Cambridge+University+Press,+2018.+xiv+++448+pp.+Hardcover:+USD+125&rft.title=Asian+Journal+of+Comparative+Law&rft.issn=2194-6078&rft.date=2019&rft.volume=14&rft.spage=373&rft.epage=379&rft.aulast=SMITH&rft.aufirst=Ewan&rft.au=Ewan+SMITH&rft_id=info:doi/10.1017/asjcl.2019.33">Socialist Law in Socialist East Asia by Hualing FU, John GILLESPIE, Pip
NICHOLSON, and William Edmund PARTLETT (eds) Cambridge: Cambridge
University Press, 2018. xiv + 448 pp. Hardcover: USD 125
- Authors: Ewan SMITH
  Pages: 373 - 379
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.33
  Issue No: Vol. 14, No. 2 (2019)
East Asian Socialism and East Asian Legality: A Response to Ewan Smith
- Authors: Hualing FU; John GILLESPIE, Pip NICHOLSON, William PARTLETT
  Pages: 380 - 382
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.32
  Issue No: Vol. 14, No. 2 (2019)
Comparing+Law:+Comparative+Law+as+Reconstruction+of+Collective+Commitments+by+Catherine+VALCKE+Cambridge:+Cambridge+University+Press,+2018.+xiv+++232+pp.+Hardcover:+USD+105+doi:+https://doi.org/10.1017/9781108555852&rft.title=Asian+Journal+of+Comparative+Law&rft.issn=2194-6078&rft.date=2019&rft.volume=14&rft.spage=382&rft.epage=384&rft.aulast=SEPPÄNEN&rft.aufirst=Samuli&rft.au=Samuli+SEPPÄNEN&rft_id=info:doi/10.1017/asjcl.2019.30">Comparing Law: Comparative Law as Reconstruction of Collective Commitments
by Catherine VALCKE Cambridge: Cambridge University Press, 2018. xiv + 232
pp. Hardcover: USD 105 doi: https://doi.org/10.1017/9781108555852
- Authors: Samuli SEPPÄNEN
  Pages: 382 - 384
  PubDate: 2019-12-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.30
  Issue No: Vol. 14, No. 2 (2019)