Law in Asia: The Key Role of Law as a Productive Force for Development
University of Sydney - Faculty of Law
March, 30 2009
Paper presented at the 6th Asian Law Institute Conference "Dynamics of Change in Asia", Hong Kong, May 29-30, 2009
Sydney Law School Research Paper No. 09/16
The paper focuses on the potential of comparative sociology of law as an instrument for analysing the effective operation of law in society. This approach links normative and empirical approaches to legal research. Applying advanced sociological theory of law, the paper analyses how social and legal change affect development generally and focuses the analysis on a comparative sample of countries along a geographical route linking Asia with Europe and vice versa, vaguely reminiscent of the historical Silk Roads on land and by sea.
Sociological theory suggests analysing social and legal change from the perspective of the dynamics of the functional systems of world society rather than from a normative legal perspective which has individual territorial states and their national state law as a point of reference. The functional systems of world society, such as families (the family system), economics (the economic system), politics (the political system), civil society and law (the legal system) can be seen as both exerting stress on each other and adjusting to this stress by a structural change in local populations with sufficient structural adaptability towards a higher differentiation of all social structures.
The rule of law emerges as a special pattern of this structural differentiation which compounds the structural adaptability of above all in the legal system and the political system world-wide. In turn, the rule of law is a condition for increasing the adaptive flexibility of social structures in local populations. The rule of law is, therefore, a crucial element in the on-going development of society. This pattern is not historically given once and for all. nor is it linked to particular forms of government and political systems. Understood in this way, the rule of law is not a normative political or constitutional wish-list but a social phenomenon which can provide comparative sociology of law with a useful set of indicators for describing the development of society and its law.
Number of Pages in PDF File: 17
Keywords: Global Law, Law in Asia, Law & Development, Comparative Functional Analysis of Law
JEL Classification: K10, K30, K33
Date posted: April 15, 2009
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