2 Developing a Decentred Analysis of Legal Transfers

2005

2. The "country and western" comparative law tradition derives its name from its preoccupation with state-based (formal) legal systems and legal systems in the civil and common law styles.

Asian Socialism and Legal Change, 2005

Asian Journal of Law and Society, 2021

Legal transplants are broadly recognized as one of the main mechanisms by which donor states influence the legal development of recipient states. The experience of China, however, challenges convention. While, in recent years, China has been one of the largest capital-exporting countries in the world and has mobilized law to protect its investment in high-risk recipient states, legal transplants have, to date, not played a major role in China’s approach to law and development. This article examines this puzzle through the case of China’s participation in formulating Vietnam’s 2018 SEZ Bill. In doing so, this article sets forth a number of hypotheses as to why Chinese law has thus far not assumed the form of legal transplant. The example of the SEZ Bill demonstrates how Chinese legal transplants depend as much on the “pull” of recipient states as they do on the “push” of the donor. The case-study of the SEZ Bill raises important questions not only for Chinese law and development, but...

The Geographic Imagination eJournal, 2010

For many decades, global discourse about legal development has been dominated by Western notions of rule of law and liberal democracy. The gradual shift of economic power from the West to North East Asia over the last 40 years, and to China more recently, presents a new and distinctive challenge to Western domination over global development discourse. To explore this phenomenon, we argue that it is necessary to abandon, or at least suspend, the belief that "global culture," which developed out of the European Enlightenment and diffused worldwide through imperialism and imitation, is an irresistible socializing force. We need to consider the possibility that "global culture," which now includes North East Asian influences, does not invariably produce local variations of Western or North East Asian legal development in socialist Asia. These models are important but may not be the only reference points for legal development elsewhere in Asia.

2005

The diversity and dynamism of legal change Contents Tables vi Figures vi Abbreviations vi Contributors viii Preface-Malcolm Smith xi Acknowledgments xiii THE DIVERSITY AND DYNAMISM OF LEGAL CHANGE IN SOCIALIST CHINA AND VIETNAM 1 The diversity and dynamism of legal change in socialist China and Vietnam 1 John Gillespie and Pip Nicholson 2 Of 'socialism' and 'socialist' legal transformations in China and Vietnam 21 Michael Dowdle 3 Changing concepts of socialist law in Vietnam 45 John Gillespie 4 Confucianism and the conception of the law in Vietnam 76 Pham Duy Nghia

2005

One of the great tragedies of modern constitutionalism is that it has remained largely insulated from the concerns that socialism was developed to address. These concerns are real, and deserve more constitutional attention then they generally receive. The insights gleaned from Vietnam’s experience with the process of legal transformation perhaps can go some way toward rectifying this tragedy. We cannot presume, however, that it is enough that Vietnam chooses to call itself, its laws and its constitution ‘socialist’. In order for the ‘socialist’ experiences of Vietnam to contribute to a meaningfully ‘socialist’ vision of legal transformation, their self-described ‘socialism’ must be somehow amenable to the experiences of others. In the search for a possibly socialist legal transformation of Vietnam, one needs to be clear about the parameters of the discussion. On the one hand, since Vietnam is identified as a ‘socialist’ country, any legal change experienced by that country could cre...

THIS PAPER, DELIVERED IN SIENA IN DECEMBER 2007, APPEARED AS CH2 OF GROPPI, PERGIGLI AND RINELLA (ED), ASIAN CONSTITUTIONALISM IN TRANSITION; A COMPARATIVE PERSPECTIVE (MILAN: GIUFFRE, 2008), 19-45). It explores how we can approach studying constitutionalism in Asia, taking as a case study the Thailand constitutional system project, and setting out a methodology based on sympathetic engagement.

2012

Asian Journal of Comparative Law, 2011