How Asian Should Asian Law Be? – An Outsider’s View

Forthcoming, Convergence of Commercial Laws in Asia: Methods and Drivers edited by Gary Low and Maartje de Visser, Cambridge University Press

Duke Law School Public Law & Legal Theory Series No. 2018-58

29 Pages Posted: 18 Sep 2018

See all articles by Ralf Michaels

Ralf Michaels

Max Planck Institute for Comparative and International Private Law

Date Written: September 14, 2018

Abstract

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?

This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, which defines a presumably homogeneous Asia on the basis of its level of difference from Europe. The next three concepts are concepts that emerged from Asian debates. Two off them explicitly invoke leadership of one country. A sinocentric concept of Asian law attempts to reinvigorate concepts from the time of Chinese dominance of East Asia prior to colonization. A Japanese concept of Pan-Asian law by contrast is built on Japanese modernization, which in turn was influenced by Europe. Finally, the idea of Asian values attempts to avoid leadership by any one country in favor of a truly Asian identity.

None of these three chapters can fully avoid the central problems of the European projection: they are all defined by their relation to the West, and all of them invoke a relative degree of homogeneity as basis for identity. I close, therefore, with an alternative concept of Asia “as method” that attempts to overcome these two shortcomings and may offer a more promising path towards an idea of Asian law.

Keywords: comparative law, Asian law, Law & History

JEL Classification: K00

Suggested Citation

Michaels, Ralf, How Asian Should Asian Law Be? – An Outsider’s View (September 14, 2018). Forthcoming, Convergence of Commercial Laws in Asia: Methods and Drivers edited by Gary Low and Maartje de Visser, Cambridge University Press; Duke Law School Public Law & Legal Theory Series No. 2018-58. Available at SSRN: https://ssrn.com/abstract=3251431

Ralf Michaels (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
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