Impact of Neoliberalistic Legal Concepts on Nations With Distinct Legal Tradition Socialist Civil Common Literature Review

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Neo-Liberalistic Legal Concepts on Nations With Distinct Legal Tradition (Common, Civil, Socialist)

This review of the related literature focuses on broad definitions of the law as historically legislated and then as practiced in three countries: Malaysia, Indonesia and China. Common law, civil law and socialist law will be defined separately and then as they each apply to the country which has used that system as its focus for legal practice. The effect that neo-liberalism had after the Asian financial crisis on these three nations will be then be examined. Finally, this review will determine if there has been a change post-crisis in merger and acquisition or public finance law.

Definitions

It is necessary to begin by defining terms that will occur throughout this review. The three systems of law to be initially discussed in the review are common law, civil law and socialist law. Of course, many dispute the fact that socialist law even exists[footnoteRef:1], but, since Marxism is applied to the court system and it has long been understood that communist-based countries such as China have molded civil law according to political principles, for the purposes of this review socialist law will be considered a separate entity from civil law. Another definition which will be applied to the three countries post-crisis is the neo-liberal system (which is more political and anthropological than legal) which has shaped policy in the three countries discussed since the Asian financial collapse in the late 1990's and early part of the current century[footnoteRef:2]. Other concepts will be defined as they appear in the text. [1: Alvin Y. So, "Post-Socialist State, Transnational Corporations, and the Battle for Labor Rights in China at the Turn of the 21st Century," Development and Society 39, no. 1 (2010).] [2: Abdel M. Agami, "The Role that Foreign Acquisitions of Foreign Companies Played in the Recovery of the Asian Financial Crisis," Multinational Business Review 10, no. 1 (2002).]

The two primary law systems in the world are common and civil. At one time many countries have adapted one or the other of these systems to their own purposes and established a new branch such as socialist law. Common law is also called precedence law[footnoteRef:3] and is determined in the courts rather than the legislature or by an executive. While this system works for certain parts of the world and was specifically the focus of the Malaysian system[footnoteRef:4], civil law is the predominant practice in the world[footnoteRef:5]. Civil law is a system of coded laws formed by a legislative or executive branch of government. A special form of civil law, as discussed above is socialist law. This system which has been common on socialist states and differs from the civil law system in that it has specific courts which oversee state owned, or collective, enterprises[footnoteRef:6]. [3: Helen Hershkoff, "Just Words": Common Law and the Enforcement of State Constitutional social and Economic Rights," Stanford Law Review 62, no. 6 (2010).] [4: Alan Berman "The Anwar Saga: Sexuality and Politics in Contemporary Malaysia," Gay & Lesbian Issues and Psychology Review 4, no. 3 (2008).] [5: George Fane, and Ross H. McLeod, "Banking Collapse and Restructuring in Indonesia, 1997-2001," The CATO Journal 22, no. 2 (2002).] [6: Michael Dutton, "The End of the (Mass) Line? Chinese Policing in the Era of the Contract," Social Justice 27, no. 2 (2000).]

Neo-liberalism is a term that has come to be used more in the past decade[footnoteRef:7] because "it can refer to a type of economic policy, to an overarching economic or even cultural structure, or, closer to the ground, to particular attitudes or inclinations towards entrepreneurship, competition, responsibility, and self-improvement"[footnoteRef:8]. Of course taking the term literally it basically means new radicalism[footnoteRef:9]. However, the term is "much more complicated than that" (ibid Mirowski). Possibly the best explanation comes from a definition razed from the Mont Pelerin Society which says; [7: Andrew Kipnis, "Neoliberalism Reified: Suzhi Discourse and Tropes of Neoliberalism in the People's Republic of China," Journal of the Royal Anthropological Institute 13, no. 2 (2007).] [8: Ibid.] [9: Philip R. Mirowski, "The Neo-Liberal Thought Collective," Renewal: A Journal of Labour Politics 17, no. 4 (2009).]

"Neo-liberalism is perhaps most tellingly viewed as a sort of caricature of liberalism, where liberal concerns for individual liberty, political equality and human rights have been warped into a purely economic ideology whose concerns lies with the establishment of free markets and in keeping state intervention in such markets at bay"[footnoteRef:10].

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[10: Ibid.]

Thus, although it this system has been applied to international law, neo-liberalism did not come into existence as a legal system. It is political and intellectual thought that has worked its way into the legal systems of many countries around the world.

Current Approaches

This neo-liberalist approach to the world of legal systems has helped redefine commercial law as it has been known[footnoteRef:11] in the past. Commercial law now has to take social responsibility and transnational interests into consideration[footnoteRef:12] . This means that the courts and the governments of one nation affect the commerce that is carried on in another[footnoteRef:13] which is one of the central arguments of this thesis. [11: Ross Cranston, "Theorizing Transnational Commercial Law," Texas International Law Journal 42, no. 3 (2007).] [12: Christopher R. Drahozal, "Commercial Norms, Commercial Codes and International Commercial Arbitration," Vanderbilt Journal of Transnational Law 33, no. 1 (2000).] [13: Ibid.]

Specific Systems of Law Pre-Collapse

Malaysia, Indonesia, and China were devastated, as were many of the, so-called, Asian Tiger companies during the Asian economic collapse[footnoteRef:14]. Many of these countries came to understand that archaic legal systems and thought processes were a primary reason that they were forced to endure this period. This section recounts the systems of thought that were partially responsible. [14: Abdel M. Agami, "The Role that Foreign Acquisitions of Foreign Companies Played in the Recovery of the Asian Financial Crisis," Multinational Business Review 10, no. 1 (2002).]

Malaysia

Malaysia, like many of the states that adopted common law, was colonized by the British in the eighteenth century[footnoteRef:15]. The system is familiar to many in America and Britain in that it is basically the same legal system seen in those countries. Malaysia has a central federal court system and legislature, and different state and local governments. The legislative body makes the law and the courts enforce them[footnoteRef:16]. The exception to the British system is that Malaysia is a Muslim country and therefore recognizes sharia law as supreme. In the county's constitution this is spelled out[footnoteRef:17]. [15: Wai Chan Meng, "Rights of Foreign Workers in Malaysia." Competition Forum 6, no. 2 (2008).] [16: Ibid.] [17: Patricia Sloane-White, "The Ethnography of Failure: Middle-Class Malays Producing Capitalism in an 'Asian Miracle' Economy," Journal of Southeast Asian Studies 39, no. 3 (2008).]

Indonesia

Indonesia, which was colonized by the Dutch, is a civil law nation. This codified law is enacted through a constitution, presidential decrees in various forms, and legislative regulations[footnoteRef:18]. This system of laws was inadequate after the banking collapse destroyed more than half of the banks extant at the time[footnoteRef:19]. It took government intervention in the form of new regulations to correct former mistakes. [18: George Fane, and Ross H. McLeod, "Banking Collapse and Restructuring in Indonesia, 1997-2001," The CATO Journal 22, no. 2 (2002).] [19: Ibid.]

China

China has one of the oldest law systems in existence[footnoteRef:20], but it has changed over the centuries with the advancement of its government through many stages. Chinese law today is basically civil law that is influenced both by the traditional handed down from Confucius, and the law which was written after 1949 when the People's Republic began[footnoteRef:21]. This history of law has been modified to accept the changing economic landscape in China and around the world. Because of the Asian economic collapse, there have had to be reforms which brought the legal system into the (by western standards measurement) twenty-first century[footnoteRef:22]. [20: Michael Dutton, "The End of the (Mass) Line? Chinese Policing in the Era of the Contract," Social Justice 27, no. 2 (2000).] [21: Ibid.] [22: Christopher Hamp-Lyons, "The Dragon in the Room: China's Anti-Monopoly Law and International Merger Review," Vanderbilt Law Review 62, no. 5 (2009).]

These three systems of law were adequate when these countries were small economies that did little business on an international scale, but since the crisis in Asia at the turn of the century it has become apparent that changes were needed[footnoteRef:23]. The research shows that by using the neo-liberalist norms that had permeated the legal systems of the rest of the world[footnoteRef:24], these three countries emerged stronger and more economically capable than ever before[footnoteRef:25],[footnoteRef:26],[footnoteRef:27]. [23: O. Omre Ergungor, "Legal Systems and Bank Development," Federal Reserve Bank of Cleveland Economic Commentary (2002).] [24: Andrew Kipnis, "Neoliberalism Reified: Suzhi Discourse and Tropes of Neoliberalism in the People's Republic of.....

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