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Legal Pluralism in Myanmar  

Helene Maria Kyed

Myanmar (Burma) is characterized by a strong degree of legal pluralism, understood as the existence of more than one set of binding rules and normative orders for regulating society. Disputes and crimes are resolved by a plurality of actors and justice systems, and state law is but one among many other sets of rules and norms for defining wrongdoing and remedies. The plural legal landscape in Myanmar derives only partly from the diversity of ethnicities and customs dating back to pre-colonial times. More importantly, colonial reification of ethnic divisions and postcolonial armed conflicts and military state authoritarianism have shaped and consolidated justice systems that operate in parallel to and often in competition with the state-legal system. Empirical research and surveys conducted since the political opening in 2015 amply demonstrate that ordinary Myanmar citizens and denizens prefer to resolve disputes and crimes at the lowest level possible, predominantly within their own ethnic group and without the involvement of the state-legal system. This preference is caused by a mixture of political-historical, socioeconomic, and cultural-religious factors. Mistrust in the state’s willingness to serve the justice needs of ordinary people and discomfort with the formalistic procedures and punitive justice applied in state courts draw people toward using local justice system that apply reconciliatory and compensational justice. These local systems are also more in line with cultural and religiously informed perceptions of wrongdoing and justice. Despite the strong role of local justice systems, these are not recognized by state law. The decades of armed conflict between the military state and ethnic armed organizations have also given way to the development of more state-like, hierarchically ordered ethnic justice systems and laws, which are applied by the ethnic armed organizations in the areas they nominally control.

Article

Islam and the Indian Ocean: Legal Culture and Economic Life to c. 1900  

Fahad Ahmad Bishara

For historians of the Indian Ocean, the stakes in thinking about law and economic life are very high. As a key arena of world history, the Indian Ocean world has emerged as a site for reflecting on issues of connectivity and circulation, and for writing histories that cover broad spans of space and time. Many of these histories—and indeed, the pioneering works in the field—have focused on matters of trade and empire, the twin pillars of world history more broadly. Since around 2000, research has taken on different forms of migration as well as matters of ideology, culture, epidemiology, and more, but many of these discussions are still built on foundations of trade and empire: people, books, ideas, and diseases primarily circulate through networks forged via trade or through imperial channels. All of it, however, requires a rigorous engagement with questions of law, which undergirded production and trade in the region. The history of law and economic life in the Indian Ocean might be mapped onto three arenas. First, law played an important role in the politico-economic constitution of empires (Muslim or otherwise) in the Indian Ocean. Beyond that, though, one must consider the legal dynamics of trade networks within this world of empires, examining the intersecting private-order and public mechanisms that merchants drew on to regulate their commercial affairs. And finally, the histories of law, empire, and economic life all intersected in courtrooms around the Indian Ocean world, as economic actors took their disputes to different tribunals, shaping the contours of the legal history of the region.

Article

Land Acquisition and Dispossession in India  

Debjani Bhattacharyya

Contemporary India is among the top seven countries in the world witnessing the rise of mega urban regions, infrastructural expansion by government and private entities, and acceleration of special economic zones; the fallout of these trends has been the loss of cropland, and massive resistance coupled with political destabilization. Since the 1990s India’s political economy has increasingly been defined by land dispossession. Indeed, some politicians and big industrialists argue that the developmental agenda of India remains an unfulfilled dream because of land scarcity. On the other hand, strong grass-roots protest movements against land grab have toppled reigning governments and, in some cases, managed to thwart the outward march of land capitalization, dispossession, and ecological degradation. Land ownership remains a protean issue for Indian politics and its social matrix. Yet, it is not a recent phenomenon. Land acquisition and dispossession have a long genealogy in India and have gone through successive stages, engendering new political modalities within different economic regimes. Although not a settler colony, the East India Company grabbed land from the 18th century onward, dispossessing and uprooting people in the process, while alienating and disembedding land from its social matrix. Beginning with the Permanent Settlement of agricultural lands in eastern India in 1793, the Company sought legal authority to justify taking land, thus initiating a regime of quasi-eminent domain claims upon land for a wide range of practices, among them salt manufacturing, urbanization, infrastructure, and railways. The political authority and dubious legitimacy of the joint-stock company acting as a trustee of land was written into the various laws on land acquisition, ultimately culminating in the colonial Land Acquisition Act (LAA) of 1894. While independent India envisioned distributive justice through land redistribution, land acquisition and dispossession continued unabated, and postcolonial India’s land acquisition law merely offered procedural legitimacy to the act of taking land from people against their will for the greater “public,” and thereafter for public–private partnership. From 1947 state-led development resulted in the expropriation of land for industrialization, dams, and mega-infrastructural projects resulting in massive development-induced displacement across the country. India’s economic liberalization from the 1990s began a transnational movement of capital on an unprecedented scale, which manifested itself as an emerging configuration of real-estate-as-development. The government of India created new legal entitlements for private companies by enacting the Special Economic Zone (SEZ) Act in 2005 for export industries, IT companies, mining companies, and supporting real-estate development, resulting in dispossession, resistance, land speculation, and the emergence of land mafias.

Article

Land and Water in Tsarist and Early Soviet Central Asia  

Beatrice Penati

Precipitation and elevation shape land and water usage in Central Asia, distinguishing the southern irrigated oases from the steppes, deserts, and prairies, where instead nomadic pastoralism (sometimes rain-fed agriculture) is economically rational. The former was included in Russian Turkestan, the latter in the Steppe provinces. The colonial state recognized land usage rights of the nomads; while not formally admitting land property among the settled population, it allowed them to enjoy it within Islamic law. Nomads paid a capitation; at first tilled land continued to be taxed as a share of the real harvest. Land-assessment works from the 1890s, though, imposed a tax based on the estimated harvest value, initially on irrigated land and then, with some differences, on rain-fed land. Irrigation was paid for eminently through corvées. The increase in the share of land under cotton did not derive from state coercion but from factor endowments and absolute and relative prices. Subsidies, in the form of import duties and, above all, a growing tax break contributed to this. Despite political claims, new irrigation had a limited impact under the tsars. While the “cotton boom” altered the landscape and local economy of the oases, in the Steppe and Semirechie (now south-eastern Kazakhstan and Kyrgyzstan) the natives lost land to settler peasants from European Russia. The latter received land that statisticians and surveyors had deemed excess for the nomads and former nomads. Conflicts around land, water, and forests coalesced in the 1916 uprising, which in turn initiated a cycle of violent retaliation between Russians and natives that would last until the early 1920s. With the establishment of Soviet power, a first land reform “decolonized” former resettlement areas; in 1925 and 1927 another land reform aimed at reducing landlessness in southern Central Asia, while restoring pre-war output levels and cotton procurement mechanisms.

Article

Civil Law and Jurisprudence in Imperial China  

Nap-yin Lau

In terms of jurisdiction and punishment, the border between civil and criminal laws in imperial China is not clear cut. The same officials can handle both civil and criminal cases, and lawfully impose the same punishment, such as the death penalty, on unfilial sons and traitors alike. In terms of the sphere of interests, however, the officials know very well that some violations are more concerned with private interests than public interests. For example, they will settle loan disputes in accordance with the original private contract between the money lenders and borrowers, unless the interest rate is so exorbitant that it necessitates government intervention. Consequently, the imperial Chinese and modern Western civil laws are roughly common in their coverage of marriage, divorce, succession, disinheritance, property matters, and so on. And, like the Western laws, the Chinese laws have experienced historical changes, many of the most important of which occurred during the Song dynasty (960–1279) or the “Tang-Song transformation,” so called to highlight the tremendous progress of China from the medieval to the early modern stages. Against the principle of filial piety, both sons and daughters are now allowed to sue their parents without fear of the death penalty if their accusations are true. Against the principle of communal family, both sons and daughters can possess privately earned properties not to be shared by their parents and siblings. Against the principle of patrilineal succession, unmarried daughters have their inheritance rights increased at the expense of the sons, reaching the ratio of two shares for a son and one share for a daughter. Against the principle of different rights according to different status, a formal concubine can inherit the spousal patrimony and establish an heir when the wife is absent. These changes reflect that the legislative principles, though still far from enshrining equality before the law, are paying increasing attention to the balance of duties and rights with decreasing regard to family relation, gender, or status. As to the judicial practices, they are nearing the rule of law and becoming more predictable instead of inconsistent. These are the less-known or even misunderstood aspects of the civil law in imperial China.