Thursday, December 19, 2013

CLH 1:2 (December 2013)

The latest issue of Comparative Legal History is out. We've previously noticed the publication of the inaugural issue.  The preface to 1:1 serves as a mission statement for the journal.  Here is the preface to 1:2.

The issue’s four articles appear below.  For the book reviews, consult the TOC.

Sarah A. Hinchliffe, Mediating Foreign Norms and Local Imperatives: Intellectual Property 'Law' between the East and the West, from Imperial China to 'Modern' Times
China is recognised as one of the oldest continuous civilisations in the world and has arguably been a forerunner in economic and technological developments for centuries. This article explores the motivations behind the protection of property rights in imperial China (221 BC – AD 1911), including Chinese efforts to regulate the reproduction of literary innovation and creation prior to the twentieth century. It suggests that the recognition and regulation of intellectual property appears to have been curtailed there by both institutional and cultural factors.
Chao-ju Dhen, Producing 'Lack as Tradition': A Feminist Critique of Legal Orientalism in Colonial Taiwan
This paper is an investigation into and a critique of the ideological construction of East Asian legal tradition as a 'lack' in the Japanese colonial project in Taiwan. Echoing Teemu Ruskola's and Laura Nader's critiques of Legal Orientalism but in a setting that transcends the West/non-West division, this study explores the colonised people's sense of legal inferiority—how they internalised Orientalism while claiming local subjectivity— through a feminist lens, demonstrating the gender dimension of Legal Orientalism. The discussion begins with an analysis of the colonised people's 'lagging behind' in the civilising process and their 'lack' of rule of law in colonial eyes, followed by an exploration of the 'lag' and 'lack' discourses both in the debate about whether or not Japan should have applied its civil code in the colony of Taiwan and in texts on colonial women's liberation, and concludes with a brief discussion on how the perception of 'lack as tradition' informs the narratives of Orientalist legal history.
Lee Godden and Niranjan Casinader, The Kandyan Convention 1815: Consolidating the British Empire in Colonial Ceylon
The Kandyan Convention (1815) was definitive in consolidating British sovereignty over colonial Ceylon. The Convention and later legal instruments reflect a shift in British colonial policy regarding the acquisition of territories of Empire. Previously, British Government policy had favoured indirect rule through mercantile interests. Seizing opportunities provided by Kandyan power struggles, Governor Brownrigg, at the far reaches of Empire, implemented direct British rule. The Convention, however, straddled an emerging sense of 'rights' by making a specific commitment to 'protect' Buddhist faith and authority. The centrality of Buddhism to Sinhalese society made these provisions a powerful inducement for the Kandyan ruling elite. Nevertheless, as subsequent events revealed, the protection of these rights proved to be less important than the establishment of full British colonial control through forceful administrative measures. The Convention was, therefore, an early precursor to the modes of governance pursued by the British Government as its formal Empire expanded over the latter part of the nineteenth century.
Peter Heehs, 'Not a Question of Theology'? Religions, Religious Institutions, and the Courts in India
Courts have played an important role in defining the relationship between religions and the state in India. Litigation by or against religious institutions has obliged the judiciary to engage in quasi-theological reasoning in order to determine what is 'religious', and therefore beyond state control, and what is 'secular', and therefore subject to government regulation. In pre-colonial India, religious conflicts were settled by means of local arbitration or by the threat or fact of violence. After British legal institutions were established, groups and individuals learned to use the courts to settle such conflicts. This tendency to seek legal solutions to religious disputes has continued in independent India. Since the state tends always to seek an increase of its powers, courts frequently decide such cases to the detriment of the litigants. Examples studied include the Maharaj Libel Case (1862), the Ramakrishna Mission Case (1995), and the Sri Aurobindo Society Case (1982).
Hat tip: Juris Diversitas

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