Asian Journal of Law and Society最新文献

{"title":"The Japanese Imperial Monarchy as an Icon of Sociopolitical Signification - Japan’s Imperial House in the Postwar Era, 1945−2019. By Kenneth J. Ruoff. Cambridge, MA: Harvard University Asia Center, 2020, 419 pp. Hardcover $32.00","authors":"Y. Hasebe","doi":"10.1017/als.2022.24","DOIUrl":"https://doi.org/10.1017/als.2022.24","url":null,"abstract":"","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44220660","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":"Demystifying the proliferation of online peer-to-peer lending in Indonesia: Decoding fintech as a regulatory challenge","authors":"David Tan","doi":"10.1017/als.2022.21","DOIUrl":"https://doi.org/10.1017/als.2022.21","url":null,"abstract":"\u0000 This paper purports to study the enormous proliferation of fintech online peer-to-peer (P2P) lending in Indonesia, along with their risks and the prevailing regulations of fintech online P2P lending. This article also suggests a varied spectrum of regulatory actions for regulating online P2P lending as an approach to increase consumer protection and stimulate the growth of Indonesia’s financial inclusion. It highlights the regulative risks and challenges of fintech online P2P lending in Indonesia and has discovered various spectra of regulatory responses that the Indonesian government can practise to regulate this potential industry. Solid recommendations were also given to regulators to better develop the present regulatory framework. This paper adds to the literature on the prevailing practice of online P2P lending by offering a legal outlook involving legal protection and the newly emerging fintech industry from an Indonesian context.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41932774","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":"Thailand’s Monarchy and Constitutional History","authors":"F. Munger","doi":"10.1017/als.2022.27","DOIUrl":"https://doi.org/10.1017/als.2022.27","url":null,"abstract":"Thailand’s recent political history is unsettling to observers of a vibrant developing Asian state on a path to democracy. At the beginning of the twenty-first century, Thailand’s democracy spiralled into political chaos. Political interventions by king and military leading to two twenty-first-century military coups, political street violence, and repression of pro-democracy movements seemed, to many Thai and Western scholars, evidence of another failure by a developing state to establish rule-of-law constitutionalism. Eugenie Mérieau’s carefully researched and persuasively argued Constitutional Bricolage: Thailand’s Sacred Monarchy vs The Rule of Law shows that this conclusion requires careful reassessment. Mérieau rejects the view that prerogatives exercised by Thailand’s politically active kings and state institutions acting in the king’s name have undermined constitutionalism. On the contrary, she maintains that preservation of the monarchy’s prerogative powers has been central to Thai constitutional jurisprudence and in play during drafting of every Constitution from the first in 1932 to the latest adopted in 2017. Constitutional Bricolage develops the author’s thesis through detailed accounts of debates over constitutional language, examination of the intentions of actors who influenced constitutional thought through reinterpretation of constitutionalism’s most important norms. Mérieau constructs, era by era, a “constitutional ethnography,” a “layered narrative” of the collective, dialectical, and often chaotic process of purposeful misreading, and “reassignment” of ideas to serve new functions by “active and often strategic participants” who legitimize power, not only the constitution-drafters, but also scholars, judges, and other political actors. Constitutional norms that emerge from this process comprise an eclectic mix of reinterpreted elements from Thailand’s remembered past and European constitutional practice. The resulting constitutional bricolage, or patchwork of repurposed borrowings, arose from successive political compromises between monarchical traditions and foreign ideals, each with legitimating force. In the debates over these ideas, the monarchy’s prerogative powers were never far from the centre of debates. In an earlier article, Mérieau put forward her thesis that Thailand’s constitutional destiny has been determined by the origins and content of its first Constitution, adopted in 1932. The small revolutionary party that overthrew the absolute monarchy was quickly outmanoeuvred by a king with his own vision of constitutionalism and parliamentary government. He drew on support among conservative bureaucratic and political elites to draft a text that guaranteed his essential prerogatives and control of Parliament. Even after the king was forced into exile in 1935, the Constitution he left behind was Thailand’s longest-lasting and, according to Mérieau, became a baseline for political forces aligned with the power of the mo","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"460 - 462"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43693920","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":"The Progressive Monarchy of Bhutan: A Not-So-Absolute Monarchy to a Democratic Constitutional Monarchy","authors":"N. Dorji","doi":"10.1017/als.2022.34","DOIUrl":"https://doi.org/10.1017/als.2022.34","url":null,"abstract":"Abstract This article provides a descriptive account of the evolution of the Bhutanese monarchy, and normative claims about its endurance and its nature, suggesting that the monarchy is both the expression of as well as the guardian of the country’s constitutional identity. Bhutan became a democratic constitutional monarchy by adopting the written Constitution in 2008 after a successful 100 years of hereditary monarchy. The willingness of successive monarchs to evolve based on changing times, their ability to ensure stability and continuity, and work for the benefits of the people and country guided by the principles of Buddhist kingship seem to have contributed not only in them benefitting from unqualified support of the people, but also in attaining the status of an expression of Bhutanese constitutional identity.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"440 - 459"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43509314","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":"Monarchical Constitutional Guardianship and Legal Métissage in Asia","authors":"Maartje De Visser, A. Harding","doi":"10.1017/als.2022.29","DOIUrl":"https://doi.org/10.1017/als.2022.29","url":null,"abstract":"Abstract This article presents a roadmap for examining the phenomenon of monarchy in Asia, which we conceive as a pluralist institution in a twofold manner. First, many monarchies discharge a wide range of roles and responsibilities ranging from the symbolic to the religious to the legal-political. These varied functions can be usefully captured under the notion of constitutional guardianship, and call for intersectional analysis. Second, it is common for monarchies to have metamorphosed from being purely endogenous institutions to becoming ones embedded in a scheme of limited, constitutional government under the influence of ideas from elsewhere. Monarchies should accordingly be viewed as a form of legal métissage, viz. a braiding of local and extraneous ideas, practices, and rules. In this sense, a law-and-society approach is more likely to reveal the nature of monarchies than a strictly legal-doctrinal approach, although some of the latter is needed to fully appreciate the former’s significance.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"345 - 362"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44462712","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":"The Malay Monarchies in Constitutional and Social Conception","authors":"A. Harding, H. Kumarasingham","doi":"10.1017/als.2022.32","DOIUrl":"https://doi.org/10.1017/als.2022.32","url":null,"abstract":"Abstract This article examines the constitutional nature of the Malaysian monarchies in their social context. We discuss the evolution of the monarchies through pre-colonial, colonial, and post-colonial history, and account for their survival despite several attempts to curb their powers, including restriction of the royal assent and sovereign immunity. It is argued that the powers of the monarchies respond to their historical role and social embeddedness of the monarchies, stretching the role of the Rulers beyond the Westminster norms as set out in constitutional texts. Moving to contemporary issues, we see the assertion of the right to uphold the Constitution in relation to prime-ministerial appointments, and acting on advice. Here, the monarchies reflect a braiding of both traditional elements and Westminster constitutional norms.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"399 - 417"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46066666","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":"History and Meaning of Establishing the Constitutions of North-East Asian States","authors":"Noboru Yanase","doi":"10.1017/als.2022.26","DOIUrl":"https://doi.org/10.1017/als.2022.26","url":null,"abstract":"about Thai constitutionalism. Dissenters and losing parties leave legacies of their own, some of which resonate with current constitutional critiques in Thailand—for example, a well-known group of younger scholars who call themselves Nitirat, a name evoking the 1932 revolutionary People’s Party. Many of that group’s members characterize Thailand’s mix of rule-ordered and prerogative government as a “failure” of constitutionalism. That characterization is not wrong viewed through the wider lens of Thailand’s growing political diversity and unsettled, sometimes violent street politics and repression of the public sector. “Constitutional ethnography” by other contemporary scholars often examines the “living Constitution” in everyday interactions in courtrooms, bureaucratic encounters, policing, and other sites of encounters between officials and citizens. A system of administrative courts with significant power to review the actions of government officials was established in 1997 and retained under later Constitutions. These courts introduced ordinary Thai to the power of rule of law and procedural justice through successful litigations against numerous powerholders. As this relatively new system works a change both among bureaucrats and within popular culture and is reinforced by globalization of Thai society, the future of constitutionalism and rule of law seem particularly unpredictable. It is hardly surprising that a constitutional history of this scope leaves much unsaid. Incompleteness does not detract from Mérieau’s clear and well-documented account of the origins of a constitutionalism and its “own dogmatic logic.” Constitutional Bricolage is timely because alternative conceptions of “rule of law” are not an anomaly. At the end of the Cold War, the remaining world powers declared the world on a path to liberal democracy, making liberal constitutional theory the lingua franca and benchmark for international discourse about rule of law. Constitutional ethnography is revealing (as constitutional historians have long known) that behind the modern constitutional ideal lie unique histories of political struggle and compromise. The ideal is seldom an accurate description of what works or what is to come. As democracy erodes in places where liberal institutions seemed most secure, Thailand’s and Asia’s greater comfort with authoritarian government no longer seems an echo of a pre-rule-of-law past but a source of relevant lessons and possible paths for constitutionalism in the future that must be taken seriously elsewhere.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"462 - 465"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41353231","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":"A Constitutional Ethnography of Monarchy: Buddhist Kingship, “Granted Constitutionalism,” and Royal State Ceremonies in Thailand","authors":"Eugénie Mérieau","doi":"10.1017/als.2022.30","DOIUrl":"https://doi.org/10.1017/als.2022.30","url":null,"abstract":"Abstract This paper defines constitutional ethnography as the cultural study of constitutionalism through its symbolic representations. By focusing on the materiality of constitutionalism as embodied in various state ceremonies such as ceremonies of “royal octroy” (constitution-granting ceremonies) as well as in state monuments honouring the Constitution, it strives to offer an ethnography of a polity’s constitutional identity. In this paper, I argue that in Thailand, Westernized Hindu-Buddhist state ceremonies and monuments using Westernized Hindu-Buddhist symbolism represent the Thai monarch as the ultimate law-giver holding permanent “constituent power” and therefore yielding extra-constitutional customary powers pre-existing the Constitution. This representation, in turn, informs Thai constitutional identity as defined incrementally by courts and jurists since the early twentieth century, which in turn informs present Thai constitutional interpretation. Therefore, this paper argues that the study of state ceremonies can be a useful entry point into the analysis of a “constitutional culture” shaping modes of constitutional interpretation.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"363 - 381"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43417708","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":"Beyond the Sharia State: Public Celebrations and Everyday State-Making in the Malay Islamic Monarchy of Brunei Darussalam","authors":"Dominik M. Müller","doi":"10.1017/als.2022.33","DOIUrl":"https://doi.org/10.1017/als.2022.33","url":null,"abstract":"Abstract This article describes post-colonial state-making in the absolute monarchy of Brunei. After detailing the Sultan’s powers, contextualizing the monarchy’s stability, and introducing its state ideology, Melayu Islam Beraja (“MIB”), the article addresses formal laws, such as Brunei’s Constitution and a new Islamic penal code, which are symbolically significant for the MIB state’s (self-)legitimation but have little immediate relevance to many Bruneians’ lives. The article, therefore, shifts its focus to normative spheres that receive much less scholarly attention but, arguably, should—namely state-rituals like the Sultan’s three-week-long birthday celebrations. These, and other non-legal spheres, including, also, royal speeches, contain normative aspects that reflect and impact key developments in the MIB state. Grounded in the Royal Birthday’s and Islamic penal code’s analysis, the final part problematizes stereotypes of Brunei being a “sharia state” vis-à-vis its multidirectional normative messages and ability to hybridize broad cultural influences for the ruling system’s benefit.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"418 - 439"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44554916","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":"The Symbolic Safeguard: Royal Absence in Cambodia’s Constitutional Monarchy","authors":"B. Lawrence","doi":"10.1017/als.2022.31","DOIUrl":"https://doi.org/10.1017/als.2022.31","url":null,"abstract":"Abstract The product of an internationalized peace process, Cambodia’s 1993 Constitution restored the monarchy and endowed the Crown with a political safeguarding role that successive kings have been unable to fulfil in practice. After a brief survey of the tragic modern history of Cambodia’s monarchy, this paper outlines the formal constitutional role of the king, highlighting the central dichotomy between the provisions that promise that the king “shall reign but shall not govern” and those that provide the king a more active role as “guarantor.” The paper highlights how this fundamental ambiguity has been borne-out publicly, by focusing on a handful of specific instances in which both King Sihanouk and King Sihamoni are understood to have been strategically absent from the country to avoid signing controversial legislation. Short of providing a veto power in the legislative process, the king’s safeguarding role is shown to manifest in the symbolic denial of royal legitimacy.","PeriodicalId":54015,"journal":{"name":"Asian Journal of Law and Society","volume":"9 1","pages":"382 - 398"},"PeriodicalIF":0.8,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46990760","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}