Reviews of \"Opposing the rule of law\"

Reviews of Nick Cheesman Opposing the Rule of Law How Myanmarrsquos Courts Make Law and Order (Cambridge Studies in Law and Society Cambridge University Press 2015)

Scholarly journals

1 Lynette Chua Sojourn 322 2017 419-23

2 Melissa Crouch Contemporary Southeast Asia 372 2015 305-07

3 Bruce Matthews Pacific Affairs 893 2016 719-21

4 Keally McBride Law Culture and the Humanities 143 2018 542-46

5 Mahdev Mohan Asian Journal of Comparative Law 102 2015 383-86

6 Maria Popova Perspectives on Politics 143 2016 902-04

7 Susanne Prager-Nyein Journal of Contemporary Asia 473 2017 484-86

8 Jothie Rajah Law amp Society Review 504 2016 1046-48

9 Robert H Taylor Asian Studies Review 404 2016 649-50

10 Gerry van Klinken Bijdragen tot de taal- land- en volkenkunde 1724 2016 552-53

Online

11 Reshmi Banerjee Tea Circle 15 March 2016

ျမနမာစာနယဇငး

12 ေဒါကတာဆဇနနာပရာဂါၿငမး ေဒါကတာထြနးေကာၿငမး (ဘာသာျပန)

13 The Sun Rays 1 amp 8 October 2016

14 စာၾကမးပး The Voice 6 August 2015

Opposing the Rule of Law How Myanmars Courts Make Law and

Order by Nick Cheesman (review)

Lynette J Chua

Sojourn Journal of Social Issues in Southeast Asia Volume 32 Number 2July 2017 pp 419-423 (Review)

Published by ISEASndashYusof Ishak Institute

For additional information about this article

Access provided by Australian National University (4 Aug 2017 1824 GMT)

httpsmusejhueduarticle665619

Book Reviews 419

and development are addressed and discussed from varied angles and are informed by different theoretical frameworks and diverse methodologies The concepts of quality and equity are not only explored in concrete terms but also in complex terms that offer readers space to come up with their own understanding assessment and engagement with Cambodia Decades have passed much work KDVEHHQGRQHPDQUHVRXUFHVKDYHEHHQGHGLFDWHGWRampDPERGLDparaVeducation and yet issues of quality and equity still seem to be a huge concern

ampORVLQJWKHERRNiquestQGPVHOIPRUHFXULRXVDERXWKRZHGXFDWLRQreforms in Cambodia could move forward in the coming years given the profound multilayered challenges and problems that are present The volume has succeeded in laying out this multifaceted scenario while also having left readers with recommendations and VROXWLRQV FRQFHUQLQJ WKH REVWDFOHV DQG GLIiquestFXOWLHV LGHQWLiquestHG DQGdiscussed by the authors For those familiar with Cambodia those new to Cambodia studies those interested in area studies and those ZDQWLQJ WR OHDUQ DERXW D VSHFLiquestF HGXFDWLRQDO QDWLRQDO FRQWH[W WKLVYROXPHLVDJRRGUHIHUHQFHQRWKHUZRUGVLWKDVWUDYHOOHGEHRQGthe sphere of education and development A thoroughly good read

Phan Le HaHSDUWPHQW RI (GXFDWLRQDO )RXQGDWLRQV ampROOHJH RI (GXFDWLRQ 8QLYHUVLW RI +DZDLދL DW0DQRD8QLYHUVLW$YHQXH+RQROXOX+86$HPDLOKDOHSKDQKDZDLLHGX

DOI 101355sj32-2j

Opposing the Rule of Law How Myanmarrsquos Courts Make Law and Order By Nick Cheesman Cambridge Cambridge University Press 2015 338 pp

Opposing the Rule of Law is an empirically rich and thoughtfully ZULWWHQ ERRN W LV KLJKO UHOHYDQW WR VFKRODUV DQG SUDFWLWLRQHUVLQWHUHVWHGLQWKHSDVWDQGSUHVHQWRI0DQPDUZKHUHHWKQLFFRQAgraveLFWland grabs corruption police abuse of power and other rule-of-law

17-J02138 SOJOURN 06indd 419 27617 300 PM

420 Book Reviews

FRQFHUQVFRQWLQXH WR WURXEOHSHRSOHparaVGDLO OLYHV W LVDOVRUHOHYDQWto scholars and policymakers not necessarily focused on Myanmar but nonetheless interested in the rule of law democratization and legal reform

Cheesman draws from the records of 393 criminal cases in eighty-six courts at various levels across Myanmar and on other published and unpublished sources to interrogate the meaning of the ldquorule of lawrdquo in the country from the era of British Burma XS WR WKH SUHVHQW GD+HiquestQGV WKDW WKH UXOH RI ODZ LV QRW D UHFHQWconcept one associated exclusively with Aung San Suu Kyi and the elected government that she leads Rather it ldquohas long been a part of the Burmese political lexicon common to the language of democrats and dictators alikerdquo (p 4) Furthermore he argues the UXOHRIODZKDVEHFRPHFRQAgraveDWHGZLWKsup3ODZDQGRUGHUacuteS7KHlatter represents a political ideal that is diametrically opposed to the IRUPHU EHFDXVH LW MXVWLiquestHV WKHXVHRI WKH VWDWHparaV FRHUFLYHSRZHU WRachieve order without adherence to legal limitations

The book is divided into a short introduction nine chapters and an appendix concerned with the sources of data employed Chapter 1 H[SODLQV DQG MXVWLiquestHV WKH ERRNparaV DSSURDFK sup2 WR LQWHUURJDWH WKHmeaning of the rule of law by studying an oppositional concept law and order This second concept has its own normative contents W LQKDELWV WKH VSDFH YDFDWHG E WKH FRQFHSW RI WKH UXOH RI ODZ LQMyanmar Chapters 2 and 3 trace the ways in which the concepts of the rule of law and of law and order took on certain meanings from the British colonial period to the decades of military rule in 0DQPDUampKDSWHUVWRIRFXVRQSDUWLFXODUIHDWXUHVRI0DQPDUparaVcourts and their production of law and order the prosecution of public enemies the use of judicial torture to extract confessions corruption DQGEULEHUDQGWKHVWDWHparaVUHVSRQVHWRWKHDQWLJRYHUQPHQWSURWHVWVof 2007 Chapter 8 turns towards citizens who mobilize a rule-of-law ideal that does not share the same normative contents as the prevalent concept of law and order Chapter 9 returns to discussion of opposing concepts and calls for empirical study of the rule of law that situates the concept in local political struggles and thus attends to shifts in its normative contents

17-J02138 SOJOURN 06indd 420 27617 300 PM

Book Reviews 421

2QH RI WKH ERRNparaV VWUHQJWKV LV LWV LPSUHVVLYH XVH RI HPSLULFDOsources that researchers on Myanmar have for the most part not

considered The records of 393 criminal cases consist of primary

PDWHULDOV VXFK DV SROLFH FRUUHVSRQGHQFH FLWL]HQVpara OHWWHUV RIFRPSODLQWiquestUVWLQIRUPDWLRQUHSRUWVRQDOOHJHGRIIHQFHVVHDUFKDQGseizure forms arrest and charge sheets court diaries courtroom

testimonies verdicts and appeal submissions To supplement these

materials Cheesman also draws from interviews with and notes

from lawyers journalists and activists as well as media reports and

other published and unpublished materials in English and Burmese

As Cheesman notes in the appendix he has sought to break away

from the usual body of primary sources and secondary literature on

which scholars of Myanmar have habitually relied This aspect of

the book makes it an important contribution to a new generation

of studies on the country

7KLV iquestUVW VWUHQJWK RIOpposing the Rule of Law is related to a

second one its empirical approach to the study of the rule of law

The book speaks to calls from scholars such as Martin Krygier whose

work the book cites for more empirically informed theorizing of

the rule of law The concept is an elastic one on to which scholars

activists and policymakers have seemingly latched as rule-of-law

programmes have proliferated However we should not assume

that everyone has ldquoapproximately the same thingrdquo (p 6) in mind

when applying the concept to a range of different contexts The

meaning of the ldquorule of lawrdquo has been the topic of endless debate

Q WKLV FRQWH[W ampKHHVPDQparaV DQDOVLV RI WKH ZD WKDW WKH FRQFHSWis claimed and contested on the ground contributes to a growing

body of scholarship that treats the rule of law not as a question for

normative debate but as an empirical one

The third strength of the book lies with its contribution to the

study of law and courts in Myanmar particularly given its use

of documentary sources other than reported judgments The book

thus also speaks to the burgeoning law and courts literature on the

judiciary in non-liberal non-Western states Like these other studies

Opposing the Rule of Law demonstrates that even under the most

repressive conditions courts become meaningful sites of political

17-J02138 SOJOURN 06indd 421 27617 300 PM

422 Book Reviews

struggle and that police judges other state actors and ordinary citizens participate in the production of meanings of law

2QHPLJKWZRQGHUZKHWKHUWKHFRQFHSWVRIODZDQGRUGHUDQGRIthe rule of law are necessarily opposed to each other whether the values that they embody are always irreconcilable While there will from time to time surely be tension between the two it is perhaps possible to imagine a society in which the rule of law might in practice occasionally overlap in meaning with law and order For instance Cheesman highlights the pursuit of ldquotruthrdquo in Burmese courts under the military-led socialist regime of the 1962ndash88 period He argues that such a pursuit is antithetical to the rule of law for LWIUXVWUDWHVFRXUWVparaFROODWHUDOSXUSRVHRISURWHFWLQJLQGLYLGXDOVIURPthe abuse of power Yet one could imagine situations in which courts seek factual truth to achieve legal justice for individuals who have suffered from the abuse of power However insofar as these DUJXPHQWV RI WKH ERRN DUH EDVHG RQ GDWD DQDOVLV RI 0DQPDUparaVFRXUWV WKH DUH SHUVXDVLYH UDLVH WKHVH SRLQWV QRW LQ WKH IRUP RIcriticism They are in fact consistent with the larger issue emphasized LQ WKH ERRNparaV iquestQDO FKDSWHU 7KDW LV WKH QRUPDWLYH FRQWHQWV RI WKHrule of law mdash and arguably those of law and order by extension mdash merit empirical investigation because they shift across time and across contexts They depend on the ways in which state actors and citizens mobilize the rule of law and other competing ideals

DQDOVLQJ0DQPDU FLWL]HQVpara DSSHDOV WR DYLVLRQRI WKH UXOHRI ODZGLIIHUHQW IURP WKHRQH WKDW WKH VWDWHKDV FRQAgraveDWHGZLWK ODZDQG RUGHU WKH ERRNparaV ODVW HPSLULFDO FKDSWHU FKDSWHU WULJJHUV Dseries of questions Why do ordinary citizens nevertheless appeal to a vision of the rule of law under repressive conditions that prevent realization of that vision How have they come to imagine the rule of law as they do How do they imagine the rule of law in areas beyond the criminal cases on which this book focuses What do RUGLQDU FLWL]HQVpara LPDJLQLQJV DERXW WKH UXOH RI ODZ WHOO XV DERXWWKH FRQFHSW DQG KRZ GR WKH FRPSDUHZLWK WKH YHUVLRQ FRQAgraveDWHGZLWK ODZ DQG RUGHU Q VXP Opposing the Rule of Law makes important contributions to the study of Myanmar the rule of law

17-J02138 SOJOURN 06indd 422 27617 300 PM

Book Reviews 423

and courts and it inspires exciting empirical questions about these issues and more

Lynette J ChuaFaculty of Law National University of Singapore 469G Bukit Timah Road Eu Tong Sen Building Singapore 259776 e-mail lynettechuanusedusg

DOI 101355sj32-2k

Blood Dreams and Gold The Changing Face of Burma By Richard Cockett New Haven Yale University Press 2015 xvii+263 pp

Blood Dreams and Gold sets out the historical political and cultural foundations of some of the problems that confronted Myanmar during the democratic reform process of 2011ndash15 The book is organized thematically Chapter 1 traces a number of the distinctive physical and demographic features of the three cities Yangon (formerly Rangoon) Mawlamyine (Moulmein) and Sittwe (Akyab) back to colonial LPPLJUDWLRQSROLFLHVZKLFKUHVXOWHGLQDQLQAgraveX[RIsup2PRVWOQGLDQand Chinese mdash foreign residents Chapter 2 focuses on the growing feeling of marginalization among members of the majority Bamar population as a result of these colonial policies This feeling provided the basis both for the rise of the Bamar nationalist movement and for the deteriorating and disastrous inter-ethnic relations of the late FRORQLDO SHULRG DQG WKH 6HFRQGRUOGDU QGHSHQGHQW XUPDparaVmilitary regime took hostile measures against the descendants of LPPLJUDQWV RQ D ODUJH VFDOH LQ WKH V W QDWLRQDOL]HG SURSHUWand businesses owned by foreign immigrants particularly Chinese DQGQGLDQVDQGDGRSWHGDYDULHWRIRIiquestFLDOGLVFULPLQDWRUSROLFLHVaimed at them

ampKDSWHU WKH ORQJHVW LQ WKHERRN WDNHVXS WZR WKHPHV WiquestUVWexplores the historical foundations and deadly consequences of the hostile and discriminatory actions against minority ethnic groups and Muslims mdash particularly Rohingyas of northern Rakhine state mdash on WKH SDUW RI WKH0DQPDU PLOLWDU W DOVR IRFXVHV RQ WKH PHWKRGV

17-J02138 SOJOURN 06indd 423 27617 300 PM

Opposing the Rule of Law How Myanmarrsquos Courts MakeLaw and Order by Nick Cheesman (review)

Melissa Crouch

Contemporary Southeast Asia A Journal of International and StrategicAffairs Volume 37 Number 2 August 2015 pp 305-307 (Review)

Published by Institute of Southeast Asian Studies

For additional information about this article

Access provided by Australian National University (10 Sep 2015 0939 GMT)

httpmusejhuedujournalscsasummaryv037372crouchhtml

305

Contemporary Southeast Asia Vol 37 No 2 (2015) pp 305ndash7 DOI 101355cs37-2fcopy 2015 ISEASndashYusof Ishak Institute ISSN 0129-797X print ISSN 1793-284X electronic

BOOK REVIEWS

Opposing the Rule of Law How Myanmarrsquos Courts Make Law and Order By Nick Cheesman Cambridge Cambridge University Press 2015 Hardback 317pp

Every now and then a book comes along that offers a fresh take on a topic that has become commonplace The rule of law is a ubiquitous theme running through the law and development landscape and the way we think about law reform in this era The empire that has become the rule of law has few limits and is bolstered by endless programmes videos fact sheets checklists reports measures and metrics Yet a new book by Nick Cheesman Opposing the Rule of Law challenges current conceptions of the political and legal ideal of the rule of law and takes the conversation in an entirely new direction This is a book of ldquofirstsrdquo in many respects not least because it is the first major study of courts in Myanmar and the first to do so drawing primarily on Burmese language documentation Given the centrality of Myanmar to the current global rule of law project the contribution and timing of Cheesmanrsquos study on the rule of law in Myanmar is fitting

The rule of law literature is daunting both due to its sheer size and the complexity of the debates which range from the theoretical to the practical Tackling this literature by going beyond the tired conceptions of the rule of law Cheesman instead chooses to approach the rule of law through the notion of opposing ideas as a way of illuminating the elements of a concept (pp 7ndash8) This theoretical orientation is then supported and reinforced with a methodology that is impressive in its empirical breadth and depth encompassing a wide range of primary and secondary legal materials from the colonial period to the present The appendix provides an

06a BookReviewsindd 305 4815 512 pm

306 Book Reviews

exemplary model of a rigorous socio-legal approach fitting for this Cambridge Studies in Law and Society series

Throughout Cheesmanrsquos primary argument is that ldquolaw and orderrdquo as a concept is opposed to the rule of law and yet these two ideas have become conflated He associates the rule of law with the central role of the judiciary and the transparency and predictability of law On the other hand the notion of ldquolaw and orderrdquo is associated with arbitrary executive action and therefore stands in contrast to the ideal of the rule of law His argument is that not only have global ideas of the rule of law become confused with the concept of law and order but that in Myanmar the two terms are semantically confused and conflated This leads to the situation today where the rule of law in Myanmar has been hollowed out by the government to simply mean law and order

Further in this age of the global Cheesmanrsquos book is a challenge to take the local seriously He insists that ldquothe rule of law does everywhere become embedded in local ideas language and practices and takes on meanings that adhere to those settingsrdquo (p 260) The book therefore is an implicit warning to cultural outsiders involved in rule of law projects to slow down put their rule of law tools aside for a moment and spend time understanding the local context

Legal systems in Southeast Asia and other developing contexts are often too easily dismissed because they fail to meet international standards However Cheesman is clear that his purpose is not to show that Myanmar does not have the rule of law but rather to take the study of the politics of courts in Myanmar seriously Cheesman demonstrates that law has been a core part of the tool kit of successive regimes despite the fact that English language scholarship has largely ignored the legal system until recently

Chapter 1 sets out the conceptual arguments on the rule of law as opposed to law and order and gets to the heart of the linguistic distinction in Myanmar Chapter 2 provides a careful rethink of the colonial legal apparatus and the legacy of criminal law in British India Cheesmanrsquos characterization of Benthamrsquos influence on criminal law is an approach that resonates with the work of the late Professor Andrew Huxley Chapter 3 turns to the post-independence era and considers the creeping use of policy and how courts became fused with the executive particularly during the socialist regime Chapter 4 advances three ways in which the rule of law as an idea became equated with law and order after 1988 This includes the draining of meaning from legal principles the mutual equivalence

06a BookReviewsindd 306 4815 512 pm

Book Reviews 307

of all forms of laws and rules and the predominance of executive administration over the legal system Chapter 5 deals with the power of the sovereign and focuses on the police and their use of ldquojudicial torturerdquo The three final chapters deal with particular elements of this ldquolaw and orderrdquo paradigm the routinized and orderly nature of corruption in courts (Chapter 6) executive and judicial responses to unauthorized public assembly (Chapter 7) and the way those rendered powerless before the military regime of law and order have used complaints against government to advocate for the rule of law (Chapter 8)

Cheesman concludes this exploration of one opposing concept to the rule of law mdash law and order mdash still holding on tight to the rule of law itself and affirming its value as a political ideal In a similar way that Benedict Anderson offered a new understanding of the concept of nationalism with reference to Southeast Asia in his seminal book Imagined Communities in the same way Cheesman has enhanced our understanding of a core political ideal of our age mdash the rule of law mdash through a close and careful study of the Myanmar legal context

This book will appeal to scholars from a wide range of disciplines in the social sciences but legal scholars and practitioners working in the global ldquoindustryrdquo of the rule of law need to read this book in particular It is a call to put aside the trumpets announcing the rule of law and instead put our ear to the ground to understand the rule of law currents that already exist in local contexts and importantly the ideas that may run counter to the rule of law Cheesmanrsquos book is an invaluable and lasting contribution to scholarship on the rule of law and an exemplary reminder of how the study of Southeast Asia can illuminate our understanding of the key political ideals of our time

MELISSA CROUCH is a Lecturer at the Law Faculty University of New South Wales Postal address Law Faculty Building F8 Union Rd University of New South Wales Sydney NSW 2052 Australia email melissacrouchunsweduau

06a BookReviewsindd 307 4815 512 pm

9316 1029 PMOpposing the Rule of Law How Myanmars Courts Make Law and Order Ingenta Connect

Page 1 of 1httpwwwingentaconnectcomcontentonepaafpaaf20160000008900000003art00054

Home Pacific Affairs Volume 89 Number 3

UA-1313315-28Cookie Policy

Author Author Matthews Bruce

SourceSource Pacific Affairs Volume 89 Number 3 September 2016 pp 719-721(3)

Publisher Publisher Pacific Affairs a division of the University of British Columbia

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Opposing the Rule of Law HowMyanmars Courts Make Law andOrder Cambridge Studies in Law andSociety By Nick Cheesman

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Cop

yrig

ht (c

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Book Reviews

719

When discussing Myanmar child soldiering the author sometimes cites non-Myanmar works without geographic disclosure For instance he references Christine Ryanrsquos book on Sudanese child soldiers to support his point on negative consequences to China (32) The reader deserves to weigh human nature vs culturalregional differences

We recommend you read this compact volume The author successfully organizes disparate information enhancing our understanding of a little-studied complex region and thus encouraging the reader to care academically about Myanmar and child soldiering This is a preview of a future book advancing the field in multiple disciplines

Independent Scholar Racine WI USA Franklin Mark OsankaGeorge Washington University Washington DC USA Jeffrey Franklin Osanka

OPPOSING THE RULE OF LAW How Myanmarrsquos Courts Make Law and Order Cambridge Studies in Law and Society By Nick Cheesman Cambridge UK Cambridge University Press 2015 317 pp US$9900 cloth ISBN 978-1-107-08318-9

Nick Cheesman a research fellow in the Australian National Universityrsquos Department of Political and Social Change provides an excellent study of a complex issue of particular interest to students of Myanmarrsquos modern history and its prospects for the future Reflecting years of research and multiple visits his work includes a review of a vast documentation in both Burmese and English of law reports from colonial times to the present Facilitated by access to Myanmar legal experts he has studied hundreds of criminal cases from courts at various levels The book consists of an introduction nine chapters an appendix glossary bibliography (fascinating by itself) and index Chapter 1 sets down the key dichotomy between ldquorule of lawrdquo and ldquolaw and orderrdquo Here the rule of law (taya ubade somoye) is linked to the ancient theme of dharma or universal law roughly described as ldquowhat ought to berdquo as apart from law and order (ngyeinwut-pibyaye) essentially a political ideal associated with commands and directives that seek ldquostillnessrdquo the opposite of anarchy These concepts are ldquointertwined in history as well as in current usagerdquo (27) so that in Burmese jurisprudence today they are often used synonymously Chapter 2 reviews the legal legacy of the British colonial period (1824ndash1948) the ongoing remnants in Myanmar of the Indian Penal Code of 1865 and 1898 and how rule of law and law and order were seen to be competing ideas long before independence The discussion in chapter 3 on ldquore-ordering lawrdquo in the contemporary era provides a cogent historical synopsis of government in Myanmar up to 1988 An initial chaotic

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yrig

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ific

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Pacific Affairs Volume 89 No 3 ndash September 2016

720

period led directly to Gen Ne Winrsquos 1962 coup the introduction of a ldquomass party designed to suit the armyrsquos purposerdquo and a ldquosliding decline in the rule of lawrdquo (77) The appointment of Maung Maung as chief justice ensured that law and order and the socialist claim to a monopoly on truth became the central focus of what passed for the legal system a development which ironically kept intact many colonial laws and structure adapted to suit the juntarsquos purposes A fourth chapter continues the saga of military rule from the uprising in 1988 to the present The new governmentrsquos nomenclature as the State Law and Order Restoration Council was unambiguous and although ldquolegal principlesrdquo were still part of the ldquoofficial languagerdquo they were rendered entirely subordinate to administrative aims including the total reconfiguration of citizenship and its rights Cheesman addresses the concept of Burmese ldquosovereign cetanardquo a legal notion which gained added prominence in the Ne Win era A traditional Pali term for volition (and thus loaded with Buddhist implications) its usage has been redirected to reflect the ldquopositive mental process of someone in authorityrdquo (109) Thus the ldquopublic enemyrdquo is the one from whom ldquosovereign cetanardquo has been withdrawn This can refer to ordinary criminals but as early as 1964 it became the basis for rendering hundreds of thousands of non-Bamar people stateless a practice reinforced with Myanmarrsquos 1982 citizenship law that currently discriminates against the indigenous Rohingya The chapter further reflects on the innate authority of the policeman ldquowho physically represents the rule of law and order far more powerfully than the judgerdquo (124) Chapter 5 expands on the whole question of so-called judicial torture which in general is not aimed at obtaining information ldquobut at exercising power to have someone admit guiltrdquo (148) A sixth chapter turns to the issue of corruption apparent at all levels in the present legal system Judicial protocol is the stated objective but ldquoevery official involved in a criminal case has at least a small amount of control that he can use to get a paymentrdquo (176) Thus Aung San Suu Kyi speaking as head of the Rule of Law and Tranquility Commission in 2013 could testify that the legal system is completely broken and not trusted by 99 percent of the population Chapter 7 gives an account of the three recent large-scale uprisings against the military government (1974 1988 2007) and the state vilification of protestors as criminals In chapter 8 more recent instances of speaking up for the rule of law are reviewed including a National Human Rights Commission and permission for people to demonstrate (but with the proviso to avoid ldquoinstitutional criticismrdquo) A final chapter returns to the question of definition with the rule of law (universally not just Myanmar) described as ldquoa rich plurality of political ideals bound to the historical cultural and political conditions from which it emergedrdquo and the conclusion that its role in ensuring effective government is limited unless it is based ldquoon the reciprocal granting of liberties among members of a political communityrdquo (265) In both theoretical analyses and concrete examples of these crucial

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yrig

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) Pac

ific

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Book Reviews

721

legal terms in Myanmarrsquos history and present circumstances Cheesmanrsquos book makes a vital and welcome contribution to modern Burmese historical and legal studies

Acadia University Wolfville Canada Bruce Matthews

GROWING UP FEMALE IN MULTI-ETHNIC MALAYSIA ASAA Women in Asia Series By Cynthia Joseph London New York Routledge 2014 x 212 pp (Illustrations) US$15500 cloth ISBN 978-0-415-62922-5

This is a persuasive and compelling book It tells the commonplace story of ordinary young women and their experiences with schooling But it becomes less ordinary when we learn that they actually have to micro-navigate a grand agenda of the nation through their daily lives The grand agenda is Malaysiarsquos affirmative action program or the New Economic Policy (NEP) The NEPrsquos purpose is to reverse the historical misfortunes of racial placements narrow ethnic socio-economic inequality and create the ideal Malaysian citizenship where only loyalty to the nation-state matters Although not explicit in their consciousness the female students who were the respondents in Josephrsquos study seemed to have embraced accommodated negotiated but also circumvented the NEP

The study is notable as it is a longitudinal ethnography which captures changes among the authorrsquos respondents over a period of seven years The first phase of the study was conducted in 2000 and the second phase was in 20062007The book is also compelling because its subject of study is young women in their formative years transiting from school to work to courtship and to marital life By locating her study within this frame of reference one is persuaded to engage with many theoretical and conceptual puzzles about the construction of subjectivity or of the complex self the gendered ethnicized nationalized globalized and classified self

The NEPrsquos implementation started in 1972 Josephrsquos study of schoolgirls in a premier all-girlsrsquo high school in Malaysiarsquos second largest city Penang was conducted some thirty years after this Her conclusion seems unequivocal the NEP has not only not succeeded in removing the identification of race with economic status it may have even widened the differential socio-economic gap between ethnic groups

Joseph classified her twenty-five or so respondents into various identifiable archetypes such as being ldquosuper achieving kiasu global womenrdquo to the ldquotraditional young Malaysian womenrdquo But they were mainly regarded as belonging to one or the other the academically high-achieving girls or the academically low-achieving girls In all this Joseph explains how these young females circumnavigate the social economic and political spaces that are

542 Law Culture and the Humanities 14(3)

by the Malabo Protocol to the ACHPR which restricted its (or any future regional court under the AUrsquos auspices) from trying sitting heads of state As the International Court of Justicersquos decision in Case Concerning the Arrest Warrant of 11 April 2000 (2002) implies that sovereign immunity is not a barrier to prosecution for international crimes the Malabo Protocol seems to fly in the face of accepted customary international law

The AU is generally reluctant to interfere in the domestic affairs of member states an inheritance from its predecessor the Organisation of African Unity (OAU) As an organi-zation the OAU protected the sovereignty of newly independent African states to such an extent that it defended organizational inaction in response to systemic human rights abuses taking place within member countries In Chapter 10 Kebreab Weldsellasiersquos dis-cussion of the pre-colonial and colonial context of criminal justice in Africa provides some welcome background on the evolution of criminal law in the region but it does not analyse differing assumptions about sovereignty These assumptions are addressed by Jalloh in Chapter 12 who notes ldquoideas of self-determination were central to the struggle by the people of the continent for their fundamental freedomsrdquo (297) Given this history the approach of regional bodies to supranational institutions was always likely to be cau-tious In the introduction to the book Jalloh and Bantekas flag this wariness as a vital issue noting that one of the core demands of the decolonization movement was in addi-tion to the establishment of independent nation states the expectation that those states would have a say in international rule-making In this context the difficulties that the ICC has faced in relation to some of its African cases seem all the more understandable This point is important for understanding the Kenyan and Sudanese cases outlined in earlier chapters in the book Unfortunately it is only really explored by Jalloh in Chapter 12

One criticism of the book is that it is not divided into thematic sections exploring individual issues such as the Kenyan case or head of state immunity This makes it dif-ficult to read as a whole volume and in places leads to an overlap of subject matter between chapters Nevertheless this is an important collection of scholarly work with a level of detail that is highly informative and some chapters will almost certainly continue to be an important source of reference as the ICC enters its next phase

Frederick CowellBirkbeck University of London

Opposing the Rule of Law How Myanmarrsquos Courts Make Law and OrderBy Nick Cheesman Cambridge Cambridge University Press 2015 $2999 (paper) ISBN 978-1-107-44376-1How to Do Things with International LawBy Ian Hurd Princeton NJ Princeton University Press 2017 $2995 (paper) ISBN 978-0-691-17011-4

Readers of this journal have worked hard to overcome a predominant conception of law succinctly described by Judith Shklar and quoted in Ian Hurdrsquos book How to Do Things with International Law ldquoLaw is endowed with its own discrete integral history its own lsquosciencersquo and its own values which are treated as hellip sealed off from general social

Book Reviews 543

history from general social theory from politics from moralityrdquo (qtd in Hurd 135) Hurdrsquos book challenges this conception at the international level Nick Cheesmanrsquos book Opposing the Rule of Law challenges this conception as well but at the national level In fact in vastly divergent political contexts these two books offer similar accounts of the complex operation of something understood as ldquothe rule of lawrdquo In addition both Hurd and Cheesman make considerable contributions to the study of law by describing not simply unmasking how the rule of law works to reinforce ndash and even accelerate ndash inequalities of power

Given all the publicity surrounding the slaughter and persecution of the Rohingya many readers might think that Myanmar lacks a cohesive legal system Cheesman com-bines archival research contemporary case studies and interviews with different figures to illuminate how the law works in Myanmar Cheesman does not want to present Myanmar as simply lacking what scholars and policy makers in the West would consider ldquothe rule of lawrdquo Nor does he want to suggest a normative judgment of Myanmar Instead he wants to offer a detailed description of the operation of law Cheesman believes legality is illuminated when it is examined in different contexts Despite the fact that Myanmar adopted many Indian penal codes Cheesman proves that Myanmar pro-vides a unique context for the study of legal institutions

Cheesmanrsquos knowledge of Burmese helps structure Opposing the Rule of Lawrsquos argu-ment Unlike the English language in Burmese there are two distinct terms that distin-guish two different aspects of law The first taya-ubade-somoye is the equivalent to our understanding of the rule of law as a principle of justice that animates legal proceedings (though is not necessarily confined to them) The second ngyeinwut-pibyaye Cheesman describes as ldquoa condition where the statersquos forces bind peoplersquos general activity to ensure that they remain decent and inoffensive quiet and unassumingrdquo (30) In the lexicon of the United States this kind of order is associated with the phrase ldquolaw and orderrdquo Burmese Courts make it clear that their primary goal is ngyeinwut-pibyaye and their decisions often refer to the imperative for order

Cheesman begins by arguing that not only are taya-ubade-somoye and ngyeinwut-pibyaye distinct from one another they are fundamentally opposed Hence even though Myanmarrsquos courts follow routine procedures and written codes and largely appear as instruments of the rule of law to the extent that they are guided by ngyein-wut-pibyaye according to Cheesman they actually oppose the rule of law Cheesman makes it clear that he is not trying to say that Myanmarrsquos courts are somehow less developed than say European court systems Instead he claims ldquoPartisans of law and order are not the occupants of low rungs on a ladder to the rule of law they are climb-ing a different ladder altogetherrdquo (259)

The primary focus of legality in Myanmar is order and the performance of orderli-ness What this means among other things is that judges take bribes in order to keep cases moving through the system Cheesman explains that ldquothe court in Myanmar functions as a marketplace where participants buy and sell case outcomes not because judges are underpaid and greedy ndash or not only for these reasons ndash but because the logic of law and order makes it possible and to an extent mandates itrdquo (162) Whatever increases the efficiency of courts serves law and order and bribes do accelerate the efficiency of the courts

544 Law Culture and the Humanities 14(3)

The emphasis upon maintaining order and perhaps more accurately the appearance of order also means that the courts cannot acknowledge the torture behind confessions as to acknowledge such a thing would bring an element of chaos into the proceedings Like judges whose corruption slows the machinery of the courts rather than accelerating it policemen that make it difficult to hide torture are a problem for the system Police torture is not formally legal Cheesman explains so the courts work to erase it from the records However if interrogation techniques become ldquoso egregious or incompetent as to threaten the semblance of orderlinessrdquo a judge may instead sanction the officer or offic-ers involved (138)

Through detailed accounts of the use of police torture medical records court proce-dures and land seizures Cheesman points out that the courts in Myanmar do everything possible to deny the agency of those who move through them This observation makes even more powerful perhaps the most surprising aspect of Cheesmanrsquos book which is the fact that villagers in Myanmar who have found no justice in the courts and are acutely aware of the fact that the law is designed to serve the statersquos interest still invoke ngyein-wut-pibyaye the rule of law To read the descriptions of peasants arguing against an authoritarian regime using this language makes it clear why Cheesman wants to maintain the distinction between the two concepts of taya-ubade-somoye and ngyeinwut-pibyaye The fact that the rule of law lurks as a possibility even when formal institutions serve law and order is a central mystery for anyone who studies law Pointing out that rule of law language provides the terms with which people can articulate a meaningful form of citizenship Cheesman terms this phenomenon ldquorightful resistancerdquo

Cheesmanrsquos account of Myanmarrsquos courts makes it clear that we should figure out ways to acknowledge degrees of agency within the court of law instead of simply dis-missing these courts as somehow deficient Indeed reading Opposing the Rule of Law made me question anew what legal subjectivity really means and how limited our under-standing of it is when we limit ourselves to European and North American legal contexts Legal subjectivity is a complex issue as Althusserians and Foucauldians demonstrate when they argue that legal subjectivity is anything but agentic This is why it might be particularly important for legal theorists to spend time with Cheesman dwelling in a vastly different legal context than the European and North American ones

While one might think that Myanmarrsquos system would provide one of the bleakest cases for legal scholars Hurdrsquos book How to Do Things with International Law is ultimately less optimistic than Cheesmanrsquos This is probably because Hurd is operating in an Anglo-European context where law and order frequently dresses itself up as the rule of law so he does not maintain a division between law and order and the rule of law Hurd investigates the rule of law (broadly speaking now) as it operates in the international system and finds that it does not provide a meaningful check on the activities of states International law is ineffective even though it seems to be a hegem-onic concept ndash even Putin and Duterte profess to believe in the rule of law after all Hurdrsquos book persuasively demonstrates that ldquothe hegemony of the international rule of law is not manifest in compliance It is manifest in the universality of law as a source of justification and contestationrdquo (133) Just as order is the goal of the legal perfor-mance in Myanmar so adherence to legalism is the goal of the legal performance in the international system

Book Reviews 545

The book is designed as an intervention in International Relations theory Liberal theorists see the ascent of international law as indicative of the spread of norms and the (generally) effective restraint of sovereign power Realists dismiss the law as window dressing Hurd adopts a constructivist approach saying that powerrsquos exercise is shaped and presented according to law Unlike realists he thinks the presence of law matters unlike liberals he believes power is not constrained by law

There are many fascinating twists in Hurdrsquos analysis including the persistence of ter-ritorial gaps and different rights for states in what is presumably an egalitarian interna-tional legal system For example Hurd discusses how the exact same act killing a whale in the Southern Ocean is regarded differently depending on whether the whaler is asso-ciated with Australia Turkey or Iceland This short book packs a conceptual punch pointing out that our existing theories of legality and sovereignty are belied by the com-plexities of practice ldquo[O]ne must ask what the law is for a given state and perhaps even in relation to a specific other state and then find the answer in the treaties protocols and rules of custom that apply to that staterdquo he advises (33)

States are able to depoliticize their actions by invoking the rule of law The rule of law framework presumes a separation from power By framing their behavior in the language of legalism states can assert not only their compliance with international law but they can also claim normative grounds for what they are doing Hurd argues ldquoCompliance with the law becomes the marker for acceptable policy masking the sub-stantive politics of the situation and the law itselfrdquo (3) One might take the position that this is some sort of victory a demonstration of Weberrsquos legal-bureaucratic authority winning in the international sphere Where there is no clear sovereign the bureaucrats have come to reign Hurd prefers us to understand that the cloak of bureaucracy obscures the persistence of brute force

His chapter ldquoTorturerdquo is a particularly stark discussion of how legalism shapes and often sanitizes what is presumably outlawed by the Geneva Convention The United States does not abstain from torture because it is illegal According to Hurd instead ldquoThe law gave protorture officials some tools with which to construct a legal space for torture within or alongside the antitorture regimerdquo (125) In other words legal maneu-vers helped shape the practices of torture They also worked to sanitize these practices because the government went to pains to explain how it was always in compliance with the rule of law Hurd argues that this is not a sign of the weakness of legalism internation-ally as many have concluded but a sign of its strength

Though Hurd begins his book with a discussion of the rule of law as the volume draws to a close he uses the language of legalism more This makes me think that even though Hurd does not expressly distinguish between rule of law and law and order he instinctively draws on a distinction between them One of the more refreshing aspects of Hurdrsquos book is that he questions the hegemony of legalism He says that ldquoit is easy to appreciate the importance of legalism as a normative and political structure when com-pared to those that donrsquot obtain in the world as it isrdquo but he suggests ldquoRather than legal-ism humanitarianism for instance might govern the international systemrdquo (132) If humanitarianism governed the international system protection of the vulnerable might be the yardstick by which compliance with the international order might be measured This move by Hurd suggests a path forward and an alternative to the unfulfilled promises

546 Law Culture and the Humanities 14(3)

of legalism But state actors could twist an alternative framing mechanism in exactly the same way they twist existing ones Look at what is done in the name of humanitarian intervention today

In the end it is because we have so much faith that there can be some principle that stands outside of power relations that we are repeatedly disappointed by the rule of law This brings us back to Shklarrsquos observation that we conceive of law as separate from history and social context The important case studies provided by both of these books show this conception of law to be false Many legal scholars myself included spend much time demonstrating exactly how bound laws are to their context Why then do we remain so devoted to the idea that law is ldquoendowed with its own discrete integral history its own lsquosciencersquo and its own values helliprdquo No matter how thoroughly we demonstrate the unreality of this idea there is some aspect of law that suggests an appealing potential This possibility lurks within both volumes even as they provide sobering accounts of legal uses and abuses of the rule of law

Keally McBrideUniversity of San Francisco

Ranciegravere and LawEdited by Monica Lopez Lerma and Julen Etxabe New York Routledge 2018 210 pp $140 (hardcover) ISBN 978-1-138-95513-4

This book is a rare find The last ten years has seen a proliferation of English-language publications on the work of Jacques Ranciegravere yet many rush to pigeon-hole his work misunderstanding his reworking of what seem to be familiar ideas missing the novelty and doubling flattening the playfulness and failing to comprehend the radicality of what he has to say Ranciegravere and Law contains a detailed and careful exposition of Ranciegraverersquos work At the same time the energy and spirit of Ranciegraverersquos work is carried through every page making it a readable yet rigorous contribution to the fields of both political thought and legal studies Furthermore it is rare to read an edited volume that has been so care-fully compiled It provides a consistent narrative into which each and every chapter makes a valuable and innovative intervention such that overall the book succeeds in making a distinctive and singularly coherent contribution to academic debate Ranciegravere and Law is an active spirited intervention not just in legal theory but in wider social theory It presents new work on the applications of Ranciegraverersquos writings for all aspects of our lives today work that suggests how Ranciegraverersquos writings can be used to question norms unsettle our thinking undermine notions of permanence and certainty and reveal disjunctures that could be exploited for emancipatory purposes

The opening introductory essay provides an approachable synthesis of Ranciegraverersquos broad corpus Useful for scholars students and other interested readers it makes Ranciegraverersquos at times playfully obtuse style accessible to all without compromising the spirit of Ranciegraverersquos work Acknowledging that Ranciegraverersquos work has by now been illumi-nated ldquofrom almost every anglerdquo it points out that this is not the case with regards to ldquothe wider implications of Ranciegravere for law and socio-legal studiesrdquo (1) However seeking to avoid falling into the explication mode of traditional pedagogical models the editors

institutional designs so as to either inform optimal choice or frame an institutional structure forsuperior governance Economic analysis in particular which has already prompted importantdiscussions about the role of legal families in promoting strong capital markets and out of whichthe law and finance school developed might prove a useful vehicle for comparing other aspects oflegal families

Overall this book offers a number of important insights into some of the processes by whichreasoning and intellectual discovery occur A more structured framework may be built upon thesemethodological developments

reviewed by Wei SHENShanghai Jiao Tong University Law School

Opposing the Rule of Law How Myanmarrsquos Courts Make Law and Orderby Nick CHEESMANCambridge Cambridge University Press 2015 xlvii + 317 pp Hardback USD 9900doi101017asjcl201519

In 2004 in a seminal treatise on Asian discourses scholars characterized ASEAN countries astypifying ldquocompeting conceptionsrdquo of the rule of law1 Aside from communist Vietnam and LaosASEAN countries were classified by those scholars into two categories ndash countries that areauthoritarian soft-authoritarian or with limited democracy (Myanmar Singapore Malaysia andBrunei) and countries that feature constitutionalism and transitional justice (Cambodia PhilippinesThailand and Indonesia) Both categories were compared and contrasted with mature democracies inother parts of the world primarily in Northern America and Western Europe2

In Opposing the Rule of Law How Myanmarrsquos Courts Make Law and Order Nick Cheesmanexamines the doctrine of the rule of law as it is understood and applied in Myanmar It beginssomewhat paradoxically by setting out the political and cultural obstacles to the doctrinersquos existenceand implementation in Myanmar By doing so he underscores the core tension underlying a lsquothickrsquodescription of the concept inMyanmar Cheesman purports to ldquobring opposing ideas to the rule of lawback to the study of politics to challenge the monism dominating contemporary literature on theconcept by reintroducing one of the rule of lawrsquos opposites to the debaterdquo (p 7)

He ably attempts to situate Myanmarrsquos courts amidst its politics as the book draws from a widerange of primary sources that other authors writing in the English language might overlook Inparticular he draws our attention to four categories of unpublished sources both in the Burmese andEnglish languages which he has reviewed (1) officially compiled files (2) court records other than anycontained in officially compiled files (3) letters submitted to government officials other than anycontained in court records and (4) other documentation

At the outset the book delves into a historical narrative of Myanmar detailing the tumultuouspost-colonial events that set the stage for the political racial and religious conflicts that have occurredin Myanmar over the last few decades Indeed the book documents the evolutionary changes in theapplication of the rule of law in the country Thus in each chapter the historical context is first set out

1 See generally Randall PEERENBOOM ed Asian Discourses of Rule of Law Theories andImplementation of Rule of Law in Twelve Asian Countries France and the US (London and NewYork Routledge Curzon 2004)

2 Ibid

book reviews 383

13((($13)$( 13(((amp$ $ 1313$amp$amp$