The rule of law is a political ideal today endorsed and promoted worldwide. Or is it? In a significant contribution to the field, Nick Cheesman argues that Myanmar is a country in which the rule of ...law is 'lexically present but semantically absent'. Charting ideas and practices from British colonial rule through military dictatorship to the present day, Cheesman calls upon political and legal theory to explain how and why institutions animated by a concern for law and order oppose the rule of law. Empirically grounded in both Burmese and English sources, including criminal trial records and wide ranging official documents, Opposing the Rule of Law offers the first significant study of courts in contemporary Myanmar. It sheds new light on the politics of courts during dark times and sharply illuminates the tension between the demand for law and the imperatives of order.
Whereas impunity is typically known by the absence of accountability, this article attends to impunity's presence. It does so via two instances of impunity drawn from research in contemporary ...Myanmar. In these, police and soldiers contained and managed demands for accountability for torture and killing, even as political and social conditions seemed to change in favor of human rights. Through them, the article invites a rethinking of impunity beyond the parameters of projects for accountability in the case of past, massive human rights violations, so as to take the recurrent, routine practice of impunity seriously.
The idea of "national races" or taingyintha has animated brutal conflict in Myanmar over who or what is "Rohingya." But because the term is translated from Burmese inconsistently, and because its ...usage is contingent, its peculiar significance for political speech and action has been lost in work on Myanmar by scholars writing in English. Out of concern that Myanmar's contemporary politics cannot be understood without reckoning with taingyintha, in this article I give national races their due. Adopting a genealogical method, I trace the episodic emergence of taingyintha from colonial times to the present. I examine attempts to order national races taxonomically, and to marry the taxonomy with a juridical project to dominate some people and elide others through a citizenship regime in which membership in a national race has surpassed other conditions for membership in the political community "Myanmar." Consequently, people who reside in Myanmar but are collectively denied citizenship - like anyone identifying or identified as Rohingya - pursue claims to be taingyintha so as to rejoin the community. Ironically, the surpassing symbolic and juridical power of national races is for people denied civil and political rights at once their problem and their solution.
Although law and order is often conflated with the rule of law, the two concepts are asymmetrically opposed. Asymmetrical opposites do not occupy poles on a scale of shared values. One is not a ...negative of the other, as rule of men traditionally has been to the rule of law. Nor does one occupy part of a continuum extending down from the other, like rule by law in relation to the rule-of-law ideal. They are not symmetrically related. They are opposed because their specific contents are adverse. Whereas the rule of law is characteristically concerned with eliminating arbitrariness through general rules applied juridically, law and order is primarily concerned with eliminating restlessness through particularistic injunctions delivered administratively. Different values inhere to each. Their opposition is in principle. Consequently, they cannot be conflated without obfuscating their distinctive qualities, thereby casting doubt on the meaning of the rule of law as a political ideal.
Absence of rule of law - processes in its stead - law and order - asymmetrical opposition - alternate theoretical interpretations for academic research into courts in Myanmar - objectives of the book ..."Opposing the Rule of Law".
As Myanmar's military adjusts to life with its former opponents holding elected office, Conflict in Myanmar showcases innovative research by a rising generation of scholars, analysts and ...practitioners about the past five years of political transformation. Each of its seventeen chapters, from participants in the 2015 Myanmar Update conference held at the Australian National University, builds on theoretically informed, evidence-based research to grapple with significant questions about ongoing violence and political contention. The authors offer a variety of fresh views on the most intractable and controversial aspects of Myanmar's long-running civil wars, fractious politics and religious tensions. This latest volume in the Myanmar Update Series from the ANU College of Asia and the Pacific continues and deepens a tradition of intense, critical engagement with political, economic and social questions that matter to both the inhabitants and neighbours of one of Southeast Asia's most complicated and fascinating countries.
Why did Martin Krygier become a rule of law guy? This Introduction to a Special Issue of the 'Hague Journal on the Rule of Law', which consists of 33 short essays celebrating Krygier as a colleague, ...mentor and friend, discusses some of the factors which prompted him to develop a distinct and influential body of work on the rule of law over the past three decades: the rule of law revival, especially in Central and Eastern Europe; his involvement with Philip Selznick; and his dialogue with other prominent theorists, including Gianluigi Palombella and Jeremy Waldron. The Introduction gives a sense of the importance of Krygier's personal background and history, and it also discusses some of the key features of his theory, and how these have developed over the past decades.
How do courts mediate the relationship between the practice of torture and the content of law in places where torture is neither explicitly criminalized nor authorized? If torture is recounted in ...court, then what happens? Drawing on sixteen months of observation and documentary research in Thailand, this article outlines a jurisprudence of torture in which judges accommodate the practice by denying the facticity of narratives about torture, or accepting the narratives’ facticity but denying that anyone can be held responsible, or accepting that someone might be held responsible but excusing them of responsibility in the name of duty or by holding only one or two of them, or their employer, in some way liable. Through this jurisprudence, judges in Thailand have kept torture at the limits of law: not on a boundary between the legal and illegal, but on a line between the legally ordered and unordered, which is to say, in the realm of the alegal.
Is Myanmar (Burma) democratizing, or is it moving towards a new form of authoritarianism, perhaps one more consonant with other contemporary authoritarian regimes in Asia? Coming at a critical time, ...and one of growing interest in this Southeast Asian country among researchers and policy-makers, Debating Democratization in Myanmar addresses this complex question from a range of disciplinary and professional perspectives. Chapters by leading international scholars and practitioners, activists and politicians from Myanmar and around the world cover political and economic updates, as well as the problems of democratization; the re-engagement of democratic activists and exiles in domestic affairs; the new parliament, the electoral system, and everyday politics; prospects for the economy; ethnic cooperation, contestation and conflict; the role of the army and police forces; and conditions for women. Together they constitute an empirically deep and analytically rich source of readable and relevant material for anyone keen to obtain a greater understanding of what is happening in Myanmar today, and why.
In the nineteenth century, when the utilitarians’ attempts to deliver scientific jurisprudence to England fell flat, they got India as a consolation prize. In the colony, they saw opportunities to ...build a legal apparatus that not only would surpass what it supplanted but also would be superior to anything comparable anywhere. With important allies on their side, they would codify law free of ambiguity and dispense justice unencumbered by custom. In this way, they would transform colonial society and demonstrate what might yet be achieved in the metropole. Theirs was legal science in action; the rule of law as technology—and India was a vast laboratory for a grand experiment in modernity.The utilitarians’ splendid vision for a system of law in which all hidden worlds would be revealed and everything disorderly would be put to order was never realized. From the outset, there were too many competing interests, too many hands at work, too many compromises demanded. Moreover, the utilitarian logics that were written into codified law had unintended consequences. Legal mechanisms designed for objectivity produced impunity. Police officers recognized that the formal bar on confessions obtained through inducement, threat, or promise did not so much prohibit torture as delineate circumstances for its use. Senior officers typically attributed custodial abuses to the purported shortcomings of colonized subjects rather than acknowledge them as the specific results of the experiment in codification. Courts and legislators in democratic India have since tried to prevent torture, but their efforts have been contradictory and the results mixed. As Jinee Lokaneeta (2011) showed in her first book Transnational Torture, Indian jurisprudence is more ambivalent about torture than lawyers and human rights activists tend to think. Judges introduce legal safeguards against custodial abuses yet tolerate a lot of other practices on a spectrum of state violence that ends in torture. They also remain bound to many of the positive terms and conditions imposed by colonial predecessors as well as by their modernizing social imaginaries. Consequently, in a not-so-ironic twist, the solution for torture in India today remains what it has always been: to be more modern; to bring science to law, again.
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