Vol. 14 No. 7 (July 2004), pp.572-575

ASIAN DISCOURSES OF RULE OF LAW: THEORIES AND IMPLEMENTATION OF RULE OF LAW IN TWELVE ASIAN COUNTRIES, FRANCE AND THE UNITED STATES, by Randall Peerenboom (ed.). New York: RoutledgeCurzon, 2004. 512pp. Hardback $169.95. ISBN: 0415326133.   Paperback $52.95.  ISBN: 041532612. 

Reviewed by Caryl Lynn Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington.  Email: csegal@uta.edu

The basic premise of this new series is the concept that most Westerners tend to lack knowledge about the working of law in Asian nations. The proposed series aims to study how the law works in 12 different Asian countries  by having conferences that focus on Public Law, Constitutional Rights, Criminal Law/Procedures, Morality, Corporate Law, Family Law, and International Law. When completed the volumes in these various areas would be exceedingly worthwhile not only to multinational members of the bar, but certainly to the academic community as well. This first volume, edited by Randall Peerenboom, could serve as an excellent graduate level supplemental text in a political science study of Asian comparative systems and law, as many of the chapters present numerous issues that should result in excellent in-depth seminar discussions.

Political scientists will discover a great deal of material in this first collection that illustrates how the political climate determines the application of the rule of law. The book includes 15 chapters, 12 of which are written by experts who look at the law as it applies to specific Asian nations. The first chapter lays out Peerenboom’s theory about the rule of law. The two remaining chapters are devoted to the U.S. and France to present both the common law and Civil Law approaches.

Peerenboom opens with a long and often tedious explanation of why the concept of “one size fits all” is totally inappropriate when considering the Asian continent.  Unlike many books whose introductory chapter provides an abstract of the material to follow, Peerenboom mentions things said by other authors in subsequent chapters in a manner that makes it difficult to put the information into context; clarity is often lost in rhetoric.

He opens by discussing a need to find a conceptual framework for the rule of law that can be used to illustrate how western style democracy is not a requirement for a nation to operate under the rule of law. He lays the groundwork by stating that “rule of law refers to a system in which law is able to impose meaningful restraints on the state and individual members of the ruling elite. . . . the supremacy of the law and equality of all before the law” (p.2).

Peerenboom clarifies the difference between what he calls “thin” and “thick” conceptions of rule of law: Thin is used in the sense of having the basic elements that one associates with a rule of law irrespective of the ideological system in [*573] the country involved. This includes the lawmaking process; accessibility of the laws; equality of all to whom law applies; clarity, consistency, and stability of laws; fair enforcement; predictability of the laws; and acceptance of laws by the governed. Thick refers to the political morality and economic elements that are added to the required thin conceptions to meet the individualized needs of the country. In this manner the values of the country and the type of governing mechanism add layers that allow a rule of law to operate in entirely different milieus.

The second chapter, by Brian Z. Tamanaha, educes some points that Americans tend to overlook—specifically the idea that since substantive law is written with open terms, there is an inherent possibility of inequality because interpretation is dictated by non-elected judges and intentional political policy may influence outcomes.  The actual application of law for political and economic purposes is discussed by a variety of authors in their dissection of some Asian nations.  Tamanaha’s primary objective appears to be a desire to caution readers to avoid criticizing what other nations do from an ethnocentric perspective.  He illustrates that perfection is impossible when humans are involved.

Laurent Peck does an outstanding job in his discussion of the rule of law in France. He starts with an examination of law dating to the French Revolution and the Declaration of the Rights of Man. Peck states that writings of Rousseau were interpreted to put primary authority in statutory language authored by the legislature; whereas the Constitution of the Fifth Republic, the current document in use, places supreme authority in the President. Because of a long-held belief in legislative primacy and a purposive attempt to limit judicial power, review of the constitutionality of statutes has only appeared since the third quarter of the 20th century. But the French added a twist when they established the Constitutional Council: the CC may only address statutory constitutionality PRIOR to enactment and upon the request of the president or delineated others. Once enacted, there is no means of establishing a constitutional violation. However, entrance into the European Union has provided a loophole since citizens can challenge a statute as violating international law. France apparently is the only western nation with such a restriction, because other European nations allow judicial review after enactment.

Unfortunately Peerenboom’s chapter “Competing Conceptions of Rule of Law in China is exceedingly philosophical and somewhat lacking in clarity. His tendency to write overly involved sentences (two back-to-back sentences on page 121, for example, run 65 words in the first and 68 words in the second) require the reader to work very hard to separate the wheat from the chaff. One ends the chapter with little understanding of exactly how the Chinese are applying rule of law or of the problems that are entailed when this statist society needs to allow exceptions and other legal adaptations to accommodate foreign investments and contractual obligations.

In contrast, the following chapter by John Gillespie clearly explains the problems to be overcome when Vietnam, a statist socialistic country, adjusted to [*574] the needs of the international market for contractual stability while maintaining the national culture. Vietnam’s “legal” system is class-based with the “class element . . . reasoned from Marxist theory that worker-controlled societies require legal systems that reflect proletarian aspirations” (p.150). In a country where the party establishes the rules and everyone must accept party pronouncements as “law,” the requirements of foreign investors for binding legal contracts presents a major challenge. Gillespie points out how domestic entrepreneurs rely upon informal methods used for decades and display what might be considered disdain for judicial litigation. In addition, contract law could threaten the power of middle level bureaucrats to find ways to manipulate laws governing economic transactions.

Dr. Li-ann Thio, writing the 6th chapter on Singapore, and Professor H.P. Lee, author of Chapter 7 on Malaysia, provide excellent portraits of these respective countries that illustrate how a written Constitution in and of itself is not a guarantee of individual rights. Both nations have a long history of authoritarianism, and their citizens place primary emphasis on national security and harmony. While the means of achieving true dissent differ in the two countries, the end result is that American-style dissent is not tolerated. Both chapters give historical background to help the reader understand how “rule of law” was conceived and how it actually operates as “law in action.” It should also interest members to read how the court cases cited ignore relatively recent precedents that work against the desired result, while going back in one instance to 18th Century English case law as the legal foundation upon which the decision was rendered.

Albert Chen and Anne Cheung have done an outstanding job of illustrating the problems encountered when Hong Kong was returned to Chinese rule in 1997. They discuss a number of cases that presented difficulties when the “one country, two systems” pronouncement pitted the needs of Hong Kong against some bedrock aspects of mainland China. Only the future will truly establish whether “rule of law,” as it was foreseen when the transfer from Britain occurred, will remain, or whether there will be modifications that result in “‘rule by law,’ in the sense that whenever policy or efficiency so demands the rule of law has to yield” (p.260).  Examples are also provided to demonstrate that equality before the law is not a reality when prosecution decisions are made. Another problem area discussed is the right of a citizen to demonstrate; the authors question whether restrictions imposed by the British were much different.

Tim Lindsey centers his contribution upon the Bangkok Declaration and the 1945 Constitution. Lindsey points out that governmental changes in the 21st century are too recent to conclude how or if the rule of law will become part of the Indonesian culture. Upendra Baxi discusses human rights India in a relatively convoluted manner. Muntarbhorn’s chapter on Thailand sets the stage for understanding the current legal problems by demonstrating the historical transformations that have occurred there. The historical tendency to emphasize duties rather than rights is part of the Thai culture and appears also in some other Asian countries. [*575]

The chapter on the Philippines by Pangalangan is quite informative, and one learns at the outset that an urge “to ‘juridify’ policy debates – that is, to turn to the courts to advance social causes and to resolve political disputes” (p.371) is part of the Philippine cultural heritage.  Chaihark offers a lengthy discussion of Korea’s political and legal history. Asian scholars and political scientists will undoubtedly find this chapter of immeasurable value.  Sean Cooney authored the penultimate chapter on Taiwan and clearly explains the problems encountered in this island nation which claims to be the legitimate government of China. He also explains changes that have recently taken place.

The saying about saving the best for last applies to the Haley and Taylor consideration of the Rule of Law in Japan. The chapter is replete with comparisons between the Japanese and U.S. legal systems, and the discussion of the judiciary is a superior addition to our knowledge of the Japanese legal system and its problems. Haley and Taylor point out that the Japanese Supreme Court receives approximately 4,000 appeals each year, and unlike our own court of last resort, it apparently deals with all of them. Research judges are used to help the court with this huge workload and might be analogous to law clerks, but the authors do not mention this.

Overall the book has much to offer those interested in Asian law and courts. Chapters written by scholars from a country other than the one under consideration tend to be clearest, perhaps because they seemed obliged to provide more background and historical context to create a foundation for understanding the present state of affairs and appearance of “rule of law” in each society. Asian comparativists and political scientists will find this volume a useful research tool.

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Copyright 2004 by the author, Caryl Lynn Segal.