Presentation Summaries (under construction)
Speaker Biographies	Summaries written by Brent Durbin (bd) and Andrej Milivojevic (am)
Introduction to Comparative Law / Pre-modern law "Introduction to Comparative Law and Western Tradition"- Laurent Mayali (bd) "The Code of Hammurapi: Concern for justice, or royal propaganda?" - John Hayes (bd) "The Beginnings of Legalism in Ancient China" - Jeffrey Riegel (bd) Negotiating gender and community rights Panel: Negotiating gender and community rights in Asia "Negotiating gender issues in South Asia" - Raka Ray, Center for South Asia Studies, Sociology, UCB "Adat versus Islam? Customary law and the power of women in Indonesia" - Jeffrey Hadler, Department of South and Southeast Asian Studies, UCB "Philosophical Foundations of Traditional and Contemporary Family Law in China" - Shahla Maghzi Ali, Boalt School of Law, UCB "Confucian Law and Women's rights in Korea" - Hildi Kang (bd) Legal suppression and its aftermath "Teaching the GULAG: Perspectives and Contexts" - David Wolff "Citizens, Subjects and Legal Rights under Aztec Rule" - Alex Saragoza "Literature and censorship in Vietnam" - Cam Nguyen	Panel: Issues of Transitional Justice "General Yamashita and the Theory of Command Responsibility: Tragedy or precedent?" - Trevor Nakagawa, Political Science Department, UCB (bd) "Truth and Reconciliation Commission in South Africa: How much truth and how much reconciliation?" - Louis Freedberg, San Francisco Chronicle (bd) "Justice Is Elsewhere: The violent consequences of ineffective remedies in South Asia" - Darren Zook, Political Science Department, UCB (bd) Religious Law "Jewish Law: How law develops values of communal assistance" - Rabbi Yair Silverman (bd) "The Hindu caste system and its legal implications" - Alexander von Rospatt (bd) "Islamic Law and Family History in the Arab East" - Beshara Doumani "Muslim Debates about Human and Gender Rights in an Era of Globalization" - Paul Lubeck International Law and Human Rights "Introduction to International Human Rights" - Rachel Shigekane "Human Rights: Universal, Culturally Relativist, Exceptionalist" - Rita Maran "Perspectives on the International Criminal Tribunal for the Former Yugoslavia" - Emily Shaw "Negotiating Peace in Kashmir: Possible Strategies and Approaches" - Mujtaba Hussain

Laurent Mayali began his talk by acknowledging that comparative law is a difficult topic to discuss, since scholars and practitioners have trouble agreeing on what it is. Mayali provided the following as a working definition of comparative law: "an applied legal science, the object of which is the study of the law in action and its institutional, socioeconomic and cultural identity. It should aim at providing knowledge and insight into the creation and enforcement of legal norms." He then outlined some of the key questions regarding comparative law and its evolution.

The evolution of comparative law

The earliest important example of comparative law was the development of the Twelve Tables in Roman law. This early law code probably arose as the result of conflict between patrician and plebian groups, who needed some regular means of resolving their disputes. Rome sent a commission to Greece to study their laws and bring them back to Rome. This successful mission led to the ratification of the Twelve Tables in 449 BCE. Unfortunately, there is no surviving originals of the content or methods of these laws, and everything we know about them comes from later writers.

The barbarian invasions that marked the end of the Roman Empire led to additional opportunities for comparative law. Faced with the challenge of ruling conquered territories which had developed a variety of local legal customs, the barbarian invaders began mixing their own legal systems with Roman law. One element of the 7th century Visigoth law in the mix can be traced to California today. Visigoth law gave wives a right to the "community property" acquired in marriage, as opposed to English Common Law wherein a husband retained complete rights to property. The principle of community property worked its way through the Spanish law under Christian Visigoth kings into Mexico and finally into California law in 1849, when the Mexican law was retained after the United States took possession of the territory.

The next major development in European comparative law occurred in the Middle Ages with the advent of legal pluralism. Different laws (Roman law, canon law, common law, etc.) began to apply to different circumstances occurring in the same place at the same time. By the 13th and 14th centuries, lawyers and teachers were regularly comparing these different forms of law to determine which to apply in a given case. This gave rise to a new branch of law - "conflict of laws" - in which rules were established to mitigate conflicts among the different forms of law. For example, in commercial law, traders from places with different legal traditions had to determine which laws to apply in transactions. "Place law" developed dictating that laws of the place where a contract is signed take precedence. Such questions helped governments throughout Europe solidify and harmonize laws and legal systems.

The French civil code in 1804 and the German code soon thereafter established rules requiring legal consistency within a country. In developing these rules, countries chose from among several comparative law options: harmonization, unification, borrowing, and the "legal transplant" of one country's laws to another country. Codification in France incorporated Roman law, French customary law, and various laws from other places in Europe. This process required a detailed knowledge of all of these different legal systems.

The founding moment in the modern process of comparative law occurred in 1900 in Paris, at the first international congress of comparative law. This congress took place at the peak of European imperial extension and consequently its vision of the world was very Eurocentric, and its mission could be described as setting out to bring "civilization" to the world. This effectively meant imposing on the world a legal regime founded on Western legal custom. Attendees at the congress sought to bring "one world under one law" by identifying principles of law common to all mankind. This effort was seen as an expression of progress, civilization, and education. The Paris congress of 1900 had a significant impact on comparative law for at least a half-century.

The major questions of comparative law have arisen again with the founding of the European Union. Member nations have realized that if they really want to achieve unity, they must agree on a common legal system. This effort reflects the European concept of the legal construction of nations (as with post-Revolutionary France, for example). As with earlier codification efforts, the EU is considering whether to harmonize, unify, or import something from abroad. At present there is no clear consensus in many legal areas.

What is comparative law?

Comparative law has moved from being a process of study to becoming a topic of study in itself. It has been described as a science, a method, and a separate branch of law. By defining comparative law as a science, it is attached to a separate form of study, which comes with its own baggage of history and expectations. The development of the case method is presented initially as a scientific means to identify the fundamental principles of common law. Those who argue that comparative law is a method argue that there is no real science of comparativism; rather, there are merely different forms of comparison (micro, macro) which provide results as a method but not as a science.

In the context of legal knowledge, one specializes in many areas - contracts, constitutional law, etc. Is comparative law therefore just a separate branch of the law? Those who argue that comparative law is it is a separate branch of law observe that it is impossible to do thorough comparative law unless one has a broad and deep base in law and legal history. Because comparative law considers the law in its cultural context, the law is seen as an integral part of identity. People identify themselves based on their laws, especially when there are clear differences between countries with rule of law and those without. The Romans understood law as an essence of themselves, as one of the things that made them different from and superior to barbarians. They also understood the concept as something that distinguished between man and beast. This conception of the law survived Christianization of law in Europe and exists to current day.

What are the purposes of comparative law?

Scholars employ the study of comparative law in a number of tasks:

1. To describe and classify various legal systems and legal families. These include civil law, common law, socialist law, religious law, and mixed systems. The Dutch legal system is an example of a mixed system: its Roman, French, and German components have been combined so thoroughly that they can no longer be separated out - like a "puree". Scottish law, on the other hand, is more like a salad: it incorporates English and Roman law, but these are less completely mixed. Many places in North Africa are similar - they combine Islamic, French, and Spanish law, and it is still possible to identify which of these was the source of an individual law.
2. To form a better understanding of law and legal cultures.
   
3. To assist in the law-making process. Often this involves legal transplants, such as borrowing from other intellectual property law to help draft new laws for cyberspace.
4. To pursue harmonization and unification within a legal regime. Through codification, an entity may seek to merely bring existing laws into compatibility, or to bring previously diverse traditions under the same laws.
5. To explain and understand globalization and the international legal order. Comparative law aids the process of understanding by clearly acknowledging differences and contexts.
6. To aid in legal education. Comparative law is not really a means to tell lawyers which laws to apply in different cases, but rather a way to show that there is not always one solution to a legal problem, especially in particular contexts.

A history of the Western legal tradition

Roman Law: Foundations
Rome was founded c. 750 BCE, and expanded until the collapse of Constantinople in 1450 AD. Roman law was first compiled in the 6th century in the Western part of the empire. It divided the world into three spheres of law:
1. Ius Naturale (Natural law) was the law of principles common to all living creatures. For example, the law of using force to repel force justified personal and national defense; when attacked, one responds to protect oneself. Procreation was intended to produce offspring as part of natural law; marriage was a contract with an initial sacred aspect, but which later became a secular commitment under law.
2. Ius Gentium (Human law) outlined principles common to all human beings. One example was respect for parents; living under the roof of the father makes one legally subject to his rule (in fact, for a time the father could even decree death penalty within the household).
3. Ius Civile (Civil law) was law reserved only for the Romans. For Ius Civile to apply one had to be a citizen of Rome, which strictly limited its scope, since most residents of Rome were foreigners and non-citizens. (Citizenship was extended to the Empire in the 3rd century CE.)

Roman Law: The Corpus Iuris Civilis of the Emperor Justinian (d. 565 CE)
As the empire struggled through the challenges of expansion, it needed to find ways to solidify Roman control in areas where most people spoke Greek and had different traditions. Justinian assembled a commission in 530 CE to compile all the laws into a sort of historical/traditional narrative, which helped to convey the founding myths of Roman culture. The body of civil law ("corpus civilis") written in Latin conveyed an abstract idea of being "Roman" even in parts of the Empire where Latin was not spoken. There were four stages in the creation of this narrative:
· The Digest (533 CE) comprised 50 books and provided a summary of all Roman and Greek scholars who had written on law and justice.
· The Code (534 CE) outlined the actual law of the empire. It was compiled using a cut-and-paste process from older traditions - sometimes using only two sentences or a paragraph, always with citations - to determine which concepts to follow.
· The Institutes (535 CE) were included in a small book that provided a summary of the Code and was used to help in the study of laws.
· The Novella (556 CE) provided an update to the Code and was a summary of Justinian's own constitution. This is the Roman law that then became central to the Western tradition.

Medieval Law
During most of the medieval period, states didn't really exist, so there was little or no consistency across the laws of different cities. In most cases, medieval law combined traditions from several sources. Roman law provided guidelines for civil and criminal procedures, although it is not clear why these were revived in medieval times. Customary and Canon law were also important, particularly as church influence grew throughout Europe.

It is important to note that traditional norms in the West separated civil law from religion. This makes discussion of ancient "religious law" (e.g., Islamic law) problematic, since the two are historically distinct. This distinction is related to concepts of justice: how can humans judge other humans if they are not God? With the development of courts and procedures, justice in the medieval ages no longer required the presence of God. Judicial procedure replaced the custom of justice by ordeal or combat which implied the intervention of God. In a clever harmonization of divine and civil procedure, medieval jurists interpreted Adam's trial in the Garden of Edan as an example of God's establishment of procedural norms for the courtroom. God calls Adam to court, recites his infraction, listens to Adam's defense, repeats the charges and pronounces sentence.

John Hayes: "The Code of Hammurapi: Concern for Justice or Royal Propaganda?" (bd)

Mesopotamia is often described as the birthplace of Western civilization. The origins of many modern institutions - agriculture, architecture, the decimal system, writing - can be traced to the region. One of the best-known artifacts of ancient Babylonian period is the Code of Hammurapi, which is the basic document to study if interested in ancient Mesopotamian legal systems or society. It also served as important background for the laws that later composed the Hebrew legal system. John Hayes's talk situated the Code in its historical context, and examined the function of the Code at that time.

Hammurapi was the most famous king of old Babylonian period of Mesopotamian history. He ruled from the city of Babylon, and his Ammorite people were one of several groups in the Mesopotamian region. We know a great deal about Hammurapi and life in his kingdom from original documents that have survived from the period. These include hundreds of letters from the old Babylonian court, and perhaps thousands of private letters from the region. Hundreds of legal texts from the period have also been recovered, including documents recording contracts, court decisions, adoptions, and the manumission of slaves. While these are often written in an opaque legal terminology that gives inadequate clues to the broader cultural context, they still manage to show how the law actually worked in practice.

Hammurapi's Code was written in cuneiform ("wedge-like") text in the Acadian language. The key source for our understanding of the code is a stele of ammonite that was probably coded around 1750 BCE. The top register of the stele represents Hammurapi interacting with a god, perhaps Shamash or Marduc, with the tenets of the code presented below. Around the 12th century BCE, the stele was taken as war booty to Sussa, near present-day Iran. Part of the stele has been effaced, probably to replace some of the laws with Emolite laws. This primary stele was found in 1902 by French archeologists, who brought it to Paris and published the text. Fragments of two other stelae were also found in Sussa, and more than 50 fragments of cuneiform tablets recording parts of the code have been discovered. (These were most likely school exercises for budding scribes, and some of these tablets were found to have been copied 1000 years after Hammurapi's death.)

The text of the Code starts with long prologue, then lists the laws, then provides a fairly long and poetic epilogue which includes curses on anyone who disturbs the stele. Scholars have added numbers to the laws, although these were not originally present. Also, some of the codes have section headings (property, etc.) that were not included in original, but were probably added later as school exercises. The Code comprises approximately 282 laws. While it is not the first code, it is by far the best preserved of the early codes.

The basis for Hammurapi's Code is not clear; we don't know if it drew on earlier codes and customary practices, or if it was wholly an invention of the king or members of his court. The Ammorites were nomadic people, so some wonder if code grew out of nomadic practices.

The specific laws include an unusual mix of the general and the very specific, and many seem concerned with the legal process. For example, the first five codes deal with false testimony (Number 1: "If a man accuses another man of homicide but it cannot be proved, the accuser shall be killed). The Code also includes what some believe to be the precursor of the "eye for an eye" punishment found in the Bible: "If an awilu (royal or high-class person) blinds the eye of another awilu, they shall blind his eye . . . but if he shall blind the eye of a commoner or slave, the charge is to be paid in silver."

Scholars have sought to determine why the law was inscribed on stelae and set in public view. Some have noted that it is not a proper code at all, since it is not comprehensive (e.g., it doesn't include homicide), and its language is inconsistent (e.g., some laws distinguish among social classes while others don't). Many believe that the Babylonian people and Hammurapi himself probably did not conceive of the Code as comprehensive or systematic.

There also seems to be a disconnect between Hammurapi's Code and other legal texts that have been preserved, none of which mention the Code. In fact, historical evidence shows that in many cases penalties for actual crimes were different from those listed in Code. One interpretation of this disconnect is that the Code is a collection of decisions applied to specific incidents, and the function of the Code was to record difficult cases but not to provide general laws. Others have conjectured that perhaps Hammurapi wanted to record what he felt to be the most just decisions from his time. Yet some of the laws are very mundane, such as those setting fees for the building of different sizes of boats. Most scholars see the Code as a means to justify Hammurapi's rule and to boast about how he is fulfilling the mandates of a ruler. In this case, the laws likely were not meant as day-to-day rules for decisions, but rather were propaganda to build reverence for Hammurapi as a sort of ideal ruler.

Jeffrey Reigel: "The Beginnings of Legalism in Ancient China"(bd)

Jeffrey Reigel's talk introduced the early period of legalism in China. One of the first reported legal codes in China was announced by Zi Chan, an administrator of the small state of Zheng and contemporary of Confucius, in 536 BCE. This code of penal law was inscribed on a set of bronze vessels, which were then displayed so that anyone in the public sphere could consult the code. Unfortunately, the contents of the code have not survived. That it was called a penal code (xing) probably indicates that it included corporal penalties. Etymologically, xing suggests physical punishment through some form of amputation.

Shu Xiang, a conservative critic of Zi Chan, expressed contempt for the code, noting that, "now, when the people know exactly what the laws allow and do not allow, they no longer stand in awe of their betters." Like Confucius, Shu Xiang, looked back to what he viewed as the golden age of the past when the state was governed by the example of li (proper behavior) and the expectations of one's peers, rather than the threat of punishment or written law (fa). Li originally referred to the practice of proper rituals but eventually came to mean the broader notion of proper behavior in society according to one's place in the family and social order. This system, championed by Shu Xiang, relied on a more fluid relationship between rulers and the governed, in which "the rulers of ancient times would weigh each case based on its merits and then hand down rewards and punishments." He feared that a set code of laws would make the people "ungovernable" since they would no longer be led by the example and wisdom of their betters in questions of conduct. This was not the first criticism levied at Zi Chan; two years earlier (538 BCE), he had shaken up the polity by levying taxes on people outside Zheng for the first time. When this proved unpopular, Zi Chan replied that it was the right thing to do for the state, and that he would stand by his policy despite the curses and threats to his personal safety.

These changes came during a period of great political and social change in China, and Zi Chan was part of a larger reform movement. Later in 513, the state of Jin followed suit by publishing set of penal laws inscribed on bronze vessels. These laws were written by Shi Gai, a Jin noble. Such efforts were also subject to condemnation by those who subscribed to the growing influence of Confucius (551-479 BCE). Confucius argued that if government did a proper job of educating and instilling values, the people would strive to behave properly on their own accord. Laws and punishment coerce proper behavior, rather than inviting it, and are thus bad for society. Confucius was critical of both xing and fa, which is the more common term for law and is etymologically related to the act of making a judgment. The appearance of the Jin law code is an example of an early threat to the aristocracy, and implies some attempt to move toward social meritocracy.

Our understanding of this debate between pro-law activists and conservative Confucian critics comes from philosophical and historical sources that were controlled by the conservative critics. These sources imply that the changes were a heterodox challenge to orthodox traditions of the time. We can speculate, however, that the legal code approach may actually have been as old and as orthodox as the conservative approach; other reports indicate that Chinese legal codes may go back to the 8th Century BCE, and may have either contributed to or grown out of the fall of the dominant dynasty of that period.

For a long time, all knowledge of these issues came from philosophical texts. Now we have other resources that put the legal debate into a clearer context, including some sources that are more sympathetic to legalism. This is especially true of sources from the "Warring States" period (453-221 BCE). The school of Mozi, dating to the 5th and 4th Centuries BCE, makes the most systematic argument against the aristocratic approach and for meritocracy. These scholars' essays became the building blocks for rise of legalist thinking. The state of Wei was one of Jin's successor states, and its leaders were very active in coming up with new forms of governance. Li Kui, appointed chief minister in Wei sometime after 445 BCE, wrote the Fajing, or Classic of Law. This book is now lost, but fragments and contemporary accounts show that it was the first discussion of Warring States' law in an extended form. It presented a penal code outlining measures that would be taken to prevent crimes in society.

This tradition of legal code was taken up later by Shang Yang, prime minister of Qin, and may have been one of the reasons for Qin's success and eventual rise to empire. Shang Yang's own legal code survives mostly intact. It shows that fa included corporal punishments as well as rewards for obedience. The population of Qin was divided into groups of families which were mutually responsible for reporting crimes, and were held communally accountable if they failed to do so. The Shang Yang code also propagated the idea that in criminal suits social distinction should not matter, and no one should be considered exempt.

In the state of Han, Shen Buhai (chief minister from 351-337 BCE) wrote a work on legal principles that survives only in fragments. This work articulated techniques for how a ruler could control his ministers, and is considered the first form of administrative law in the region. It survived almost wholly intact throughout the Han dynasty. Around the same time (ca. 350-275 BCE), Shen Dao, who was associated with the Jixia Academy in the state of Qi, wrote book on power which also did not survive but which is included in Han bibliographies. For Shen Dao, rulers were imbued with a magical, amoral power, and he wrote poetry that sought to determine how and why this was came to be.

One of the great breakthroughs in our understanding of ancient Chinese legal traditions came in 1975, when archaeologists discovered a copy of the Qin law code in a tomb dated 217 BC. Before this discovery the oldest surviving written code had been from 725 AD. The tomb is believed to belong to a subordinate local official called Xi, who in 235 BC was commissioned to try government prosecutions of crimes. The code was written on bamboo strips bound together with threads; these became jumbled over time as the threads disintegrated, so our understanding of the order of the laws is tentative.

It is presumed that the code included six different manuscripts. These are:

1. a set of 18 statutes covering a variety of commercial activities and issues of governance;
2. a set of statutes governing government supervision of goods
3. miscellaneous excerpts from Qin statutes that have to do with crimes or malfeasance of office committed by officials;
4. a set of questions and answers regarding Qin statutes that, for the most part, cover the penalties for robbery;
5. models for how to go about investigating and reporting crimes; and,
6. a set of statutes from the state of Wei - which may not originally have constituted a separate manuscript - that perhaps was associated with the 5th century Wei minister Li Kui.

The code included many details, including specific punishments for theft or robbery which were determined by the money value of the stolen goods. A clear distinction was made between unpremeditated manslaughter and killing somebody intentionally; special attention was also paid to prohibitions on killing one's own children.

More generally, the Qin law code is characterized by several principles. First, people believed in the interdependence of all parts of the universe; as such, a man's actions should be adapted to the cosmic process to preserve natural harmony. This led to the view that acts which cause cosmic imbalance should lead to counterbalancing actions. Thus, crime must always lead to punishment, or it will contribute to unraveling of universe. Second was the principle of undivided responsibility of a group for acts committed by one of its members. For example, the family members of a criminal could be punished for his crimes, including his parents' and children's generations. The most common punishment in Qin was hard labor, although banishment was also used, and the harshness of a sentence could be mitigated by considerations of the intentions and status of the perpetrator. The administrator of a region was also the sole judge of crimes and punishments.

Jeffrey Hadler: "Adat versus Islam? Customary law and the power of women in Indonesia" (am)

Perhaps because of the familiar picture of Islam as a strongly patriarchal religion, people are often surprised to learn that the largest surviving matrilineal society is found in Indonesia, home to the largest Muslim population in the world. In Western Sumatra, the Muslim Minangkabau, who number about 10 million, have maintained their matrilineal tradition through successive attempts at modernization by both colonizers and co-nationals for the past 200 years. The long-standing negotiations between the traditional, matrilineal practices and the various waves of modernization suggest that, in contrast to the common image of Islam as a static, strict, and even monolith set of practices, there are significant dynamic elements within its practice.

Modernizing Traditional Matrilineage - The Wahhabist Challenge:
In 1803, an "internal jihad" was started by a group of padris (Islamist Minangkabau) returning from the Haj, a sacred pilgrimage to Mecca. The pilgrims were strongly influenced by Ibn 'Abd ul-Wahhab, an fundamentalist Arab scholar who instituted conservative reform of Islam during the 18th century and who contributed significantly to the so-called "Wahhabist" strain of Islam practiced to this day in Saudi Arabia. The Padri War between the Wahhabist padris and the traditionalist (adat) Minangkabau Muslims raged for some thirty years, ending only in the mid-1830s. At issue was the traditional matrilineal organization of adat Minangkabau society, which Wahhabists reformers attacked as undermining the practice of pure Islam.

When the British colonial scholar Sir Thomas Raffles visited the region in 1818, he also concluded that in the hills of Western Sumatra, Islam was only superficially grafted onto a Sanskrit and pagan base. In fact, the Minangkabau incorporated key elements of Islam into their traditional practices, so it is more accurate to think of the Minangkabau society as an Islamic matriarchy. The enduring importance of pre-Islamic traditions which Raffles observed among the Minangkabau may actually have been the consequence of the challenge to traditional culture posed by the Wahhabists. By compelling the traditionalist Muslim population to formulate a response to criticism from pan-Islamist reformers, the Wahhabist jihad actually served to reinforce the legitimacy of traditional matrilineage.

Examples of the traditional practices targeted by reformers include matrilineal inheritance (mother to daughter) and so-called matrifocal corporate longhouse residence. In a matrifocal system, the men move in to the women's residence when they marry. If within the first three months or so the new guest did not fulfill financial, sexual, and other expectations, this could serve as acceptable grounds for divorce. Clearly, then, women controlled both material resources and exercised power.

The practice of the matrifocal longhouse, or rumah gadang, shows the dynamic element in the practice of Islam. Traditional Islamic practice tends to separate living quarters along gender lines. By contrast, the longhouse not only mixes the genders, it also organizes the space within the compound according to the reproductive life cycle of women - special quarters are made available to women of childrearing age, while men and women not engaged in childbearing are housed in common sleeping areas. The survival of the long-hut system of living, then, tells us that the Minangkabau were able to reconcile their Islamic religious beliefs with pre-existing cultural practices.

Dutch Colonizers and Modernizing Traditional:
Dutch colonizers in the 1830s sided with the traditionalist, matrilineal majority against the Wahhabist minority. The decision to side with the traditionalists in part rested on economic reasoning. The Dutch depended on local stability as a condition for conducting profitable trade. The rebels promised upheaval, while traditionalist Minangkabau appeared more "agreeable" and moderate to the colonizers.

The new colonial rulers in effect combined three distinct legal traditions, all of which had a direct impact on women. Dutch Civil law included a wholly novel addition to legal practice, and it should be noted that some of the progressive, socialist legislation that appeared in the Netherlands in the 1920s and 1930s was implemented in Indonesia as well. Second, Sharia law was used. Lastly, customary law, or Adat law, applied variously to different regions.

Adat law reflected pre-Islamic practices, so it is not surprising that women as well as men were included in local councils set up to deliberate on appropriate action for cases within their region. The community itself decided who could sit on the councils, and thus who could make and interpret what came to be known as Adat law, or deliberative law. Since there were many communities, there was not one single, unitary Adat law, and the Dutch sub-divided the country into regions under specific jurisdictions. As in India, the colonist's process of codifying customary law disproportionately reflected the views of men, and especially wealthy men. As wealthy men themselves, the colonizers sought out their own social counterparts as sources of information.

The history of law in West Sumatra illustrates the richness and complexity of legal practice, and the important role women played in the evolution of law in the region. In the case of inheritance in Western Sumatra a compromise emerged. While women inherit heirloom property, agricultural land is passed down the male line. In what is still an agricultural economy, the control of agricultural land is very important and suggests that the men in the matrilineal system are not an underclass, systematically dispossessed.

Modernization and Matrilineage Today - The Ongoing Debate:
What explains the resilience of matrilineal Muslim society? It seems that while defending tradition under attack from strict Islamic reformists, the Minangkabau reinforced existing practices and evolved rhetorical practices adept at addressing criticisms. This should not imply that Minangkabau-ness meant or means today a set of practices that are set in stone. Indeed, pan-Islamism, colonialism, and nationalism all influenced local identity, language, and household and family structure. Precisely the rigor of these challenges to the traditional order engendered a sophisticated defense of that order and the inter-personal arrangements it attempts to structure.

The practice of Adat law, and the role women played in the creation if not the codification of Adat law, is one of the more interesting end results of the debate between various modernizers and traditionalists. In contrast to India, where matrilineal customs have all but disappeared, Adat law still has force in Sumatra, even though Sharia law clearly has the dominant position. It seems that so long as this remains the case, the Minangkabau will remain an Islamic matriarchy.

At least in the case of West Sumatra, holding Islamic beliefs does not predetermine the gender roles that exist in a society, as many casual observes of Islamic societies in the West are prone to assume. Understanding how local cultures reconcile their traditional practices with their Islamic beliefs reveals the dynamic element of Islam and suggests the importance of studying those cultures.

Hildi Kang: "Confucian Law and Women's Rights in Korea" (bd)

[Dr. Kang's paper and illustrations are available on-line at http://ieas.berkeley.edu/cks/k12_project.html]

Hildi Kang's discussion centered on the role of Confucian law in Korea and its impact on the role of women in Korean society. Unlike China, where the impact of Confucian teachings was found largely in the training of officials, Korea attempted to incorporate Confucian principles into almost every walk of life after the founding of the Choson dynasty in 1392. Kang's talk was divided into three segments: Confucianism itself, what Korea was like before 1392, and what happened in Korea after 1392.

The key elements of Confucian teaching are ethics, education, statecraft, and the personal goal of being a "superior man," exhibiting qualities such as temperance and restraint. In Korea, Confucianism arrived early, and Korean society sought to incorporate the five imperatives of Confucianism into daily life. These are often described as righteousness between king and subject; properness between father and son; separation of function between husband and wife; respect between elder and younger; and faithfulness between friends. Inherent in Confucian teachings is the belief that a person's worth is measured in part by age (older is better) and gender (male is better).

In Korea, Confucianism took root in ancestor rituals and the institutions of education and civil service. Only boys went to school, and usually only a family's eldest son. Even when the Korean alphabet was developed in 1444, Korean students learned Chinese writing and studied Chinese history and literature. The Korean civil service exam lasted hours or even days, and included Confucian themes such as poetry or essays in Chinese characters based on themes of government, statecraft, and ritual. Neither education nor civil service was open to women, and a woman's role was to obey her father as a child, obey her husband as a wife, and obey her son when she grows old.

Confucianism came to Korea in 1392. Prior to this time, the Korea peninsula had consisted of roughly three kingdoms until about 950, and was thereafter consolidated under one rule. Until the late 13th century, patrilineage was an important part of Korean life. For example, a young man who wanted to take the civil service exam would have been required to prove that his father, both grandfathers, and his father's grandfathers all held important positions in Korean society. Even so, prior to 1392 women also played a role in family and civic life. Sons and daughters had equal inheritance rights with respect to such things as land and slaves, and entire families took part in traditional ancestor rituals.

When the leaders of the new Choson dynasty took control of the Korean peninsula in 1392, they looked back at the earlier dynasty and saw too much decadence. They decided to adopt Confucian principles as a means for improving Korean social and civic life. New laws and customs emphasized the five Confucian imperatives and generally abridged personal choice and the rights of women.

In the first 20 years of the Choson dynasty, women progressively lost many of the freedoms they had previously enjoyed. Early laws required the separation of girls and boys from age 7, and restrictions on women riding in open palanquins, going to Buddhist temples, or even going outside during the day. After 1412, women had to cover their heads when going outside the home, and in 1413 women were forbidden from taking part in ancestor rituals.

For the next 200 years, the erosion of women's rights in Korea continued. In 1450, women were confined to the inner rooms of tile-roofed houses. (This practice led to a new pastime among Korean women - swinging from swing sets - which may have become popular as a way to see over the walls that kept them inside.) After 1462, women could no longer ride on horseback, and around 1500 women lost all property rights. Later, official genealogies stop listing the names of daughters alongside those of sons; females are mentioned in the lists only by the names of the families into which they married.

These differences continued into the 20th Century, when some restrictions began to be lifted. By the late 1800s some women had begun to write, and after 1900 a few girls were allowed to go to school. The end of the Confucian dynasty is generally given as 1910, when Korea moved into the modern era that continued through partition and to the present day. Vestiges of the Confucian era remain, however, as women are treated as second-class citizens by many Koreans, particularly those of older generations. For example, the principle of respect for one's elders often forces new brides to become servants in the house of their mothers-in-law, and there remain very few women in important positions in government, law and industry.

When foreigners travel to Vietnam, they see a society of overwhelming print media, with newsstands and bookstores everywhere. Vietnamese people read all the time, often about the same topics as Americans - gossip, international events, local activities, pop culture. On the surface, Vietnam looks like any other country, with freedom of press and a vibrant civil society. Cam Nguyen's talk described how this impression can be misleading. She described the history of literary censorship in Vietnam, and introduced some of the most important Vietnamese writers of the modern period.

Vietnamese writers know there are invisible boundaries that cannot be crossed. These boundaries are very loosely defined; the basic understanding is that one can write about anything as long as it doesn't cause damage to the Socialist Republic of Vietnam. What might cause damage? One recent example was the Clinton memoir, which was almost completely ignored by Vietnamese writers, despite widespread fascination among the population. This was because, buried it the book's 900+ pages, there are a few lines that might offend Vietnam's political and cultural leadership. This case provides an example of a form of self-censorship exercised by Vietnamese writers and publishers. Editors know that these few lines could cost them their jobs or even endanger their families. This doesn't mean the Vietnamese people have no way of knowing about memoir; other forms of access are available, such as reviews and summaries sent via email, photocopied versions passed quietly among friends, and gossip on the phone and in the street.

Modern history of literature and censorship in Vietnam

Modern Vietnamese literature is written in a Romanized script, which was invented in the 16th century and adopted widely in the early 20th century; prior to this Vietnam used a Chinese or adapted Chinese script. Vietnamese is a monosyllabic tonal language: it includes six tones that can change meaning of word, making English translation a challenge.

1900-1945

Vietnamese modern literature began in the early 20th century while the country was under French colonial rule. Vietnamese writers often dealt with the colonial legacy of widespread censorship by attacking local government, since they couldn't attack the ruling French government. They also created mysterious literary characters to stand in for revolutionary figures. In one famous example from the 1930s, the male protagonist of a novel is described as doing something romantic, dangerous, and mysterious in the jungle; readers knew that he was obviously an anti-French revolutionary, yet the story avoided any obvious mention of the French that might have led to censorship.

1945-1954

This period marked Vietnam's war of independence against the French. Most writers joined with the Communists in fighting the French, until the 1954 Geneva accord divided the country into North and South Vietnam.

1954-1975

This period was marked by the war against the United States. During this time, literature in the North served only one duty: to promote the government and produce propaganda to support the war. (The government rallying cry was "all for the front!") Writers were forbidden from writing about death or the realities of war, such as stories of women who were unfaithful to their men at the front. A small group of writers felt that censorship was too tight and asked for modicum more freedom. They did not want to write against the government, they said, but merely wanted to write about everyday happenings and human emotions. These overtures were refused, and when writers strayed into forbidden topics anyway, they were punished. Some of these authors were abandoned by their families for decades. Most writing in North Vietnam was effectively silenced until the 1980s.

Writers in South Vietnam were subject to censorship too, but at least they could choose to write about non-political issues. Some risked their lives by writing about politics; others experimented with the different writing forms that were coming out of the West. This period produced some interesting works, although many of these were banned after 1975 when Communists took control (and are still banned in Vietnam to this day).

1975-1986

Many soldiers who fought in the wars from 1945-1975 began to demand more freedom of literature after 1975. Now that the major wars were over, they argued, Vietnam could afford some freedom of expression. During this period Vietnam was extremely poor, the result of three decades of war and a continuing series of disastrous economic and social policies. Calls for change grew louder as Eastern Europe begins to liberalize in the mid-1980s.

1986-1991

In 1986, the Vietnamese government declared that the country will follow a market economy and will allow more freedom of expression for writers and artists. Authors could now write about "whatever truth they can see." This caused great excitement among students and intellectuals, and newspapers began testing their new freedom by pointing out instances of official corruption.

Four authors arose during this period as Vietnam's greatest modern writers:

Nguyen Huy Thiep (m) wrote about the naked and dark eternity of post-war life, and asked what happens when 30 years of ideology end. He wrote of a "time of hardship and suffering . . . building life anew," and asked, "is there any value to the things we left behind?"

Duong Thu Huaong (f) investigates the aftermath of the many policy problems of Communists, especially land reform that included execution of the rich by poor, the denunciation of fathers by sons, etc. These topics had been strictly forbidden as taboo; having been a female soldier during war, she was one of first to reopen these wounds, and became one of most outspoken policy critics in Vietnam.

Bao Ninh (m) became a soldier at age 17 just after high school, and was one of the first troops to enter Saigon in 1975. As a clear product of the Communist regime, he is maybe the only one to write about the war from this perspective. Later generations were brought up on the propaganda of the government and had a different outlook (for example, many Vietnamese children learned math using problems such as this one: Your mother killed 4 U.S. soldiers, while your father killed 5. - How many U.S. soldiers did your family kill?). Bao Ninh's book The Sorrow of War (1991) is about the loss of beauty in humanity. It describes the war as a civil war rather than an anti-US war. Many in Vietnam say he betrayed the country with this book; after such criticism he became depressed and alcoholic, and stopped writing for long periods of time.

Pham Thi Hoai (f) was educated in East Berlin during Communist rule. She was the first Vietnamese writer under the Communists to write about the forbidden topics of romance and sex. She went beyond the official line that described marriage as a tool to produce more fighters, and addressed day-to-day thoughts about sex, along with the more plain but important aspects of marital life.

1991-present

All four of the above writers introduced their first major works between 1986 and 1991, and they have followed different paths since then. Duong Thu Huaong was jailed for six months in 1989. She was released only after Mme. Mitterand of France petitioned on her behalf, and she has spent most of the intervening years on official or unofficial house arrest. Her later works are not allowed to be produced in Vietnam, but some are shipped out and translated into English directly. Pham Thi Hoai moved back to Berlin so she could publish again, and founded the internet journal www.talawas.org ("who/what am I?"). It is the only internet journal to draw intellectual discussion about Vietnamese society from all sides and from around the world. Talawas also introduces Vietnamese to additional writings in translation and about Vietnam, and it has become the main source of intellectual discussion in Vietnam. (The site was firewalled on 5/27/04, in part because it supported recent writings by Nguyen Huy Thiep. Due to this official sanction, some who had been contributing to Talawas stopped, and Talawas decided to begin sending an email newsletter instead. This newsletter is sent every day and forwarded around Vietnam; the censorship of Talawas has also led many Vietnamese to learn how to hack through firewalls. Nguyen Huy Thiep turned to different topics (Buddhism, Taoism) to avoid controversy, though he recently published a short piece attacking the Vietnamese Writers' Association, which is closely tied to the government. He was widely criticized for this, and perhaps in response he became very sick. Despite his recovery in May 2004, he has yet to publish any new writings.

During the discussion period, program attendees had several questions for Cam Nguyen:

Q. Do people have trouble coming in and out of country?
A. Yes, sometimes. It's not always clear why. The presenter has not had much trouble - when she visits, police will take her passport for an hour and make her wait, but will not harass her too much. Still, she could not, for example, dare to meet with Duong Thu Huaong, since she might be forbidden from leaving or coming back. She has had some trouble - being fired from job, interrogated - for translating. Now that she is outside country, however, she is seen as less of a threat.

Q. Is there any school instruction in English in Vietnam, since it might become subversive?
A. Yes, they teach it, but at very basic level (easy dialogue, etc.). The instruction doesn't tend to touch on political vocabulary or topics. There is no official order not to teach certain things, but there is informal pressure - for example, students and teachers who are assigned to keep an eye on other people and report to authorities.

Q. Why is literature seen as such a vehicle for change in Vietnam?
A. Vietnam is the kind of society in which literature has a very strong influence, which is why censorship is strong (as opposed to film, which may be the opposite of the United States). It is not really official, explicit censorship; rather, a publisher will lose his job and an offending book will be quietly withdrawn.

Q. What about music?
A. Music is not censored much for content, but the dress of singers is controlled (no long or shaved hair for men, no revealing clothes for women). This is big topic of conversation right now in Vietnam.

• Trevor Nakagawa, Department of Political Science, "General Yamashita and the Theory of Command Responsibility: Tragedy or precedent?"
• Louis Freedberg, San Francisco Chronicle, "Truth and Reconciliation Commission in South Africa: How much truth and how much reconciliation?"
• Darren Zook, Department of Political Science, "Justice Is Elsewhere: The violent consequences of ineffective remedies in South Asia"

Trevor Nakagawa, "General Yamashita and the Theory of Command Responsibility: Tragedy or precedent?" (bd)

Trevor Nakagawa presented the case of Lt. General Yamashita of the World War II Japanese army, whose post-war military trial was the first to establish a precedent for "command responsibility," or assigning responsibility for soldiers' behavior to commanding officers and political leaders. This important case, which addressed the killing of approximately 35,000 civilians during Japanese invasion and defense of the Philippines, set the stage for later war tribunals, from Nuremburg to the present day. Language from Justice Rutledge's dissent in an appeal before the U.S. Supreme Court, In Re Yamashita, also became part of the language of the Geneva Conventions. Even so, Nakagawa argued, the Yamashita case was a tragic one, in which haste and poor preparation for the trial led to a denial of due process for the accused.

Lt. General Yamashita was known as the "Tiger of Malaya," a moniker he earned when his 60,000 troops captured Singapore from Lt. General Percival's 130,000 British troops. Due to his reputation as a brilliant tactician and strategist, the Japanese war department called on Yamashita to lead Japanese troops in what many felt would be the decisive battle of the war. The general realized quickly that success was not likely: General MacArthur's invasion of Luzon (the main Filipino island) was imminent, and the Japanese expected to be outnumbered four to one.

Against these odds, and with very little help from others in the Japanese command, Yamashita chose to withdraw troops from Manila and establish defensive strongholds in the mountains. When commanded by his field commander to fight in the Leyte Gulf and Manila first, Yamashita decided to disobey the orders and set up mountain strongholds in the North, East, and South. Yet when Yamashita ordered all but 15,000 supply troops out of Manila, the Navy refused. Rear Admiral Iwabuchi told Yamashita he would leave 4,000 of his 20,000 troops in the city; in fact, all 20,000 stayed with orders to "fight MacArthur to the death." As MacArthur advanced on Manila with 400,000 troops, Filipino guerrilla activity at the port and throughout the city picked up. With Yamashita 150 miles away in the mountains, effectively cut off from communication with those in the city, Japanese troops in Manila initiated a war against Filipino "guerrillas" that left 25,000 civilians dead in two weeks. The city troops eventually were forced to retreat from the city; when they found their path blocked by U.S. forces, they reentered Manila and killed another 10,000 civilians. Finally, by August 1945, almost all Japanese forces had surrendered to the Americans.

The U.S. War Department decided to leave responsibility for war crimes prosecutions to General MacArthur, excepting those for the highest-ranking Japanese military officials. Yamashita's trial began in October 1975. Military prosecutors presented 64 individual charges of atrocities, although none of these mentioned any direct link to Yamashita; after Yamashita's military defense team argued for dismissal due to the lack of specific charges, 59 new charges were drawn up directly against Yamashita. During the trial, 286 witnesses were called, most of whom presented hearsay evidence against Japanese troops, and only two of whom linked Yamashita to any knowledge of atrocities. (These witnesses were so discredited that they were not even mentioned in prosecution's closing arguments.) Japanese naval officers admitted to going against Yamashita's orders, and to responsibility for the Manila atrocities. The prosecution argued that the atrocities were so widespread that they must have been ordered by the Japanese military leader, Yamashita; they argued further that leaders can be held responsible for failing to act if they should have known about atrocities. This claim became the basis for an appeal to the U. S. Supreme Court. Even though the Court decided not to question the rules of evidence or due process in the case (they considered only the authority of tribunal, which they affirmed), Justice Rutledge argued that the central question had not been addressed: is there not a burden on the prosecution, he asked, to prove at least some knowledge that atrocities were happening? Justice Murphy's dissent also pointed out that a guilty finding based only on failure to control troops was unprecedented in the laws of the U.S. or any other country. At worst, he argued, the failure of Yamashita was that he was negligent in failing to seek out knowledge of atrocities, which should not have been the basis for a capital decision. Nonetheless, the Supreme Court appeal was denied, and Yamashita was found guilty and hanged on February 23, 1946.

The aftermath of the Yamashita case led to the "knowledge requirement" for command responsibility, which maintains that commanders must have knowledge about atrocities to be held responsible for the actions of men under their command. This standard has been upheld in tribunals since: knowledge of atrocities is necessary for command responsibility, along with an opportunity to do something to stop them, as well as the intent to destroy a designated group of people. Following In Re Yamashita, judges and scholars around the world read the Rutledge and Murphy dissents and incorporated their concepts into other laws, including the Geneva Conventions of 1949, which state that due process should apply to all soldiers equally.

Louis Freedberg, "Truth and Reconciliation Commission in South Africa: How much truth and how much reconciliation?" (bd)

Louis Freedberg described a very different system of post-conflict legal restitution. The Republic of South Africa's Truth and Reconciliation Commission is often upheld as a model of transitional justice that has worked well. The Commission was set up as a mechanism to uncover what actually happened during Apartheid. A key part of the negotiations was amnesty for anyone who came forward and told the entire truth about political crimes committed during the Apartheid period. Even though thousands of South Africans had been killed during Apartheid, most of the country agreed on the amnesty. In 1995, after Nelson Mandela was elected president of South Africa, the Commission was set up. The principle was straightforward: if perpetrators of violence and came forward and gave the whole truth of what they had done, and proved that the violence was politically motivated, they would get amnesty. Approximately 7,000 applied for amnesty, and 20,000 people testified as victims. (Eighty percent of the amnesty applications were from black police officers who had served in homelands, where 60% of the police force had been black.) Only about 1,400 whites applied for amnesty, including no one from among the top leadership.

Freedberg shared three specific cases with which he has a personal connection.

The first case involved Steve Biko, one of South Africa's most celebrated anti-Apartheid activists. Biko was the leader of Black Consciousness, and underground group active during the 1970s. After Biko was arrested in 1977, the South African government announced that he had died during a hunger strike. Few activists believed the government's story, especially after journalist Alistair Sparks published a report based on a leaked government paper that Biko had died of brain damage. The government then changed its story, acknowledging that Biko had died after a struggle in which he hit his head on a wall. Later reports showed that Biko had been comatose for days before his handlers threw him in the back of a truck and drove him 750 miles in shackles. He died at some point during or just after this journey. An official inquest into the incident was called, and a magistrate ruled that no one could be held responsible for Biko's death

When Steve Biko's case came before the Truth and Reconciliation Commission, members of his family went to the South African Supreme Court to block amnesty for his killers. Their efforts were unsuccessful, but during the Commission hearings more details of his death came to light. In fact, there had been no scuffle; Biko was beaten for refusing an order from his guards. Ultimately, the Commission denied amnesty in the Biko case because each of the defendants tried to blame someone else, and thus did not fulfill the Commission's requirement of full and truthful disclosure

The second case came from 1985, when Freedberg was in South Africa documenting the forced removal of 3.5 million black South Africans from white areas. He was told to avoid a certain road at night, since three anti-Apartheid activists and their friend had been killed their three weeks before. The most prominent of the activists was Matthew Goniwe, a member of Cradock Residence Association. Goniwe had been a well known teacher, and 40,000 South Africans showed up for his funeral. Following a meeting in the same area, the police stormed in and confiscated Freedberg's notes. The police then followed him as he drove along the same road where the activists had been killed; perhaps because of his U.S. passport, he was allowed to pass safely.

The perpetrators of the 1985 killings came forward for the first time to testify before the Truth and Reconciliation Commission. Ultimately, they were denied amnesty because one of the four they had killed had not been an activist, and amnesty was reserved only for political crimes.

In 1993, the political atmosphere in South Africa was taking a positive turn, including the release of Nelson Mandela from prison. Despite the hope that had begun to spread throughout the country - or perhaps because of it - a young American student named Amy Biehl was killed by radical members of the militant Pan Africanist Congress whose motto was "One Settler, One Bullet." They were caught and tried, and received 18 years in prison for Biehl's murder. Later, Biehl's parents went before the Truth and Reconciliation Commission in support of an amnesty application for their daughter's killers. The men were granted amnesty, and were then hired to work for a foundation set up by the Biehl family in Annie's name.

Even with results such as this, which seem to live up to the goals of the Truth and Reconciliation Commission, much of the Apartheid legacy remains unresolved as long as the government fails to prosecute those who decided not to pursue amnesty. The Commission closed in March 2003, issuing a final report that ran to thousands of pages. Despite many successful cases, virtually no one from the command structure of the Apartheid regime - members of the top police, army, and security forces - appeared before the Commission. Some, such as former premier F.W. de Clerk, issued complete denials of any wrongdoing.

Darren Zook, "Justice Is Elsewhere: The violent consequences of ineffective remedies in South Asia" (bd)

Darren Zook discussed what can happen when a state fails to ensure the rights of its citizens following incidents of communal violence. In South Asia, state failures often lead people to take justice into their own hands - not in the classic American image of vigilante justice, but rather in forms that might include the establishment of paramilitary forces and even civil war.

The first example comes from India. In the state of Gujarat, the ruling party is the BJP, which promotes a Hindutva form of Hindu ethnic and religious rule. When a train carrying Hindu pilgrims was allegedly attacked by a Muslim mob, with 59 passengers reported killed, riots broke out across the state. In the end, approximately 2000 Indians were killed, most of them Muslims. Local Muslims and international observers found that the attacks had been centrally orchestrated, with access to government voting lists that showed where Muslims of Gujarat lived. The state did nothing to intervene during the riots, and some believe that state minister Narendra Modi wanted to show Muslims that they would have no protection if they attacked Hindus. Despite international pressure to prosecute Hindus for the deaths, locals officials have only sought to prosecute the Muslims accused of attacking the train.

Dr. Zook's second case study was drawn from the island nation of Sri Lanka off the southern coast of India. Sri Lanka has been struggling with an ongoing civil war and ethnic conflict for fifty years. The two sides comprise a Tamil (Hindu) minority in the north and a Sinhalese (Buddhist) majority in the south that controls most of the instruments of the state. Post-colonial democratization brought about Sinhalese majority rule, and in 1954 many Tamils rioted after the government declared that Tamil would no longer be an official language of schools and government. Continued efforts by the Sinhalese majority to deny constitutional rights to Tamils led to continued conflict and a small insurgency in the north. When several Sinhalese soldiers were killed by Tamil rebels, the government brought their bodies back to the capital city Colombo and displayed them on TV. Continued government propaganda, assisted by access to voting lists, led to Sinhalese riots that killed many Tamils throughout the country. As the government showed that it would not protect from rampaging Sinhalese, many Tamils became radicalized, and soon the rebel Tamil Tigers organization was formed. Since 1983, more than 100,000 Sri Lankans have been killed in the civil war between the Tigers and the government.

Dr. Zook's third case was drawn from Bangladesh. Bangladesh has been consistently ranked as the most corrupt country in world by the watch group Transparency International. A movement has arisen in the last 15 years to "Islamicize" Bangladeshi law, as a means of undermining the corrupt institutions of the state. Yet not everyone in Bangladesh is Muslim, and Islamic law has caused its own tensions in Bangladeshi society. For example, the author Taslima Nasreem documented the poor treatment of minorities by Muslims in her novel Shame. In 1995, Muslim clerics issued a death sentence (fatwa) against her for insulting Islam, forcing her to flee to Sweden. Even though the fatwa was clearly against existing Bangladeshi law, the state could not even denounce the clerics for fear of seeming anti-Islamic. In essence, the state has too weak a political standing to stand up to non-state actors that challenge its authority within its own borders.

These three cases show the civil costs incurred when governments fail to protect the rights of all their citizens. But not every instance of disobedience has the same tragic results. In some parts of South Asia, people are working to find new forms of justice. From 1975-77, Indira Gandhi declared "the Emergency" and suspended the Indian constitution to keep from losing power. The Indian Supreme court signed off on the move despite the widespread belief that it was outside the bounds of Gandhi's constitutional authority. Many Indians decided they could no longer support the justice system, and some activist judges began attempting to rebuild the legal system using what came to be called Public Interest Litigation (PIL). These judges decided to open the legal system to everyone, including the illiterate and poor, by revising and relaxing the rules of legal standing. No longer would petitioners have to be directly aggrieved for the court to take a case; law professors and other civic-minded activists could bring cases to court on behalf of others. The standards for petitioning and other documentation were also lowered (in one case judges accepted a documentary film in place of an official petition). These efforts have begun to restore public faith in the Indian judicial system, and have given millions of Indians access to the courts despite official government laws that may exclude them.

Rabbi Yair Silverman of Congregation Beth Israel discussed Jewish law and the tradition of Tzedakah, which has been translated as "charity" but which is nearer to the Hebrew word for justice (tzedak).

Silverman began his talk by highlighting the close connection between human law and religious law in the Jewish tradition. The belief that humans are created in the image of God had a crucial impact on the development of Jewish law. Since all people share the same divine legacy, they likewise share a communal responsibility for fulfilling God's commandments. These commandments represent a covenant with God, not a social contract with other humans; consequently, they are based on responsibilities rather than rights. Jewish law is spelled out in the five books of the Torah: Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. Most Jewish scholars consider these to represent conceptual - not literal - truth, and the Torah is not widely viewed as a book of factual history. (Later religious texts and the oral Talmudic history are also important in Judaism, but they do not carry the same legal weight as the Torah.) Many of the Torah's 613 laws are particular to the agrarian Jewish societies of ancient times; even so, scholars have derived lessons from even the more obscure and opaque commandments. These form the basis for Jewish law.

At its most basic level, Silverman explained, Jewish law is interpreted as providing the guidelines that allow society to function. At its best level, however, Jewish law is a means for restoring the kingdom of God through the recognition of other human beings. This recognition comes in part through Tzedakah. To illustrate this tradition, Silverman offered an analysis of Deuteronomy 15:4-11, which presents commandments for the provision of charity to the needy. This passage includes language that has been subject to a range of interpretations; for example, lines 7 and 8 require that "you shall not harden your heart, nor shut your hand from your needy brother; but you shall . . . surely lend him sufficient for his needs, that which he is lacking." Such commands have at times been contentious in Jewish law, as scholars have questioned what these needs are and who shall decide how they are fulfilled. Silverman used this example to stress the importance of hermeneutics in Jewish law, and presented one important interpretation of Tzedakah. Maimonides (1135-1204) was the first person to compile a comprehensive code of Jewish law (the Mishneh Torah), and in this he outlined the 8 degrees in the giving of Tzedakah. These range from the lowest form of giving - "to give grudgingly, reluctantly, or with regret" - to the highest: "to help another to become self-supporting, by means of a gift, a loan, or by finding employment for the one in need." Thus, the tradition of Tzedakah highlights the communal basis of many Jewish laws, and as well as the evolutionary nature of Jewish legal scholarship.

Alexander Von Rospatt: "The Hindu Caste System and Its Legal Implications" (bd)

Alexander Von Rospatt explained the Hindu caste system, which has been an important aspect of Indian society for thousands of years. While caste is less important in India than it was 200 years ago, it is still an important factor for understanding many aspects of society throughout South and Southeast Asia.

Two aspects of Indian culture provide perspective on the caste system. First is the idea that not everyone is equal before the law. One's legal rights depend on caste, gender, age, and other personal characteristics, as well as on the characteristics of the aggrieved parties in a criminal or civil case. Second, any offense traditionally has a religious undertone. Not only is a crime an offense against others, it is an offense against oneself. This belief is rooted in the concept of dharma, or "that which upholds the cosmic universal order." Dharma, a form of natural law, dictates that the entire community benefits by conforming to dharmic principles, and everyone is harmed when someone acts in an anti-dharmic ("adharmic") manner.

Dharma's duties and penalties depend on caste, which is divided into three main groups: the high-priest class, or brahmin; the warrior class, or kshatriya; and the vashiya, who are occupied with the arts, agriculture, and business. The caste system was imported to India around 1500 BCE, when the Aryan people arrived on the subcontinent from Central Asia. When the Aryans arrived they found darker-skinned natives, whom they dubbed shudra and made separate from the existing dharmic classes. The four groups were considered to have come from different parts of a divine being: the brahmin from the mouth; the kshatriya from the arms; the vaishya from the thighs; and the shudra from the feet. While these classes represent the main caste categories, there are in fact thousands of traditional caste categories in India. These are called jati, and are typically tied to hereditary professions.

Individual worth in dharmic societies is tied to purity, and one's level of purity depends on caste. Thus, the brahmin class is the most pure while shudra are least pure. To maintain purity, people must avoid interacting with members of lower castes. This is true for physical contact, marriage, eating and drinking, and other social activities. (For example, a brahmin should avoid eating food that has been prepared or even carried by a shudra.) When one commits an adharmic act, that person becomes polluted, and must purify through confession and physical and material sacrifices. This reflects the communal aspect of individual behavior in dharma. When one person becomes impure he causes an imbalance of dharma, and pollutes everyone with whom he comes in contact before he is purified. Thus, the entire community has an interest in ensuring that individuals atone for their misdeeds.

While dharma law holds that purification should be voluntary, in practice it was often enforced by the community. Offenders who failed to purify themselves were cast out from society for a period of time consistent with their offense, which was itself tied to caste. Manslaughter committed against a brahmin was punishable by a 12-year exile, while manslaughter of a shudra led to a one-year exile. Purification was also related to how much purity the offender had to lose. For example, if a shudra steals an apple he must return only 8 apples; if a brahmin steals an apple he must return 64, since more purity is expected of him.

Despite the importance of dharma in traditional Indian society, some aspects of life are considered outside of the caste system. One of these is ashram, or "stage of life," which dictates behavior and relationships based on age. People are taught to respect their elders, and children are not officially inducted into their caste until they undergo an initiation, usually when they are between 5 and 10 years old. Until this time, the rules of caste apply much more loosely, and an upper-caste child may be taught to be respectful to lower-caste adults until he has been officially initiated. Hindu texts also identify three alternative goals in life, in addition to dharmic purity. These are artha (wealth/power), kama (lust), and moksha (liberation from the cycle of births and rebirths). Individuals may choose to focus on improvement of these functions rather than on dharma. Priests of Buddhism and Jainism, for example, are believed to be separate from the dharmic system because they are pursuing moksha. Finally, India also has a system of civil and penal law that falls outside the bounds of dharma. This has been true for centuries, as kings have traditionally designated certain aspects of culture and society to be outside dharma because they related to government function and social stability.

When talking about an Arab family in the West, generally the image that comes to mind is of a multigenerational family living in a common compound, headed by a patriarch while the matriarch takes care of the day-to-day business of running a large household. The image of a "traditional Arab family," like that of the extended Chinese family, was largely an invention, created early in the twentieth century. Although our knowledge is quite limited, in part due to a lack of research, we can be sure that the Arab family was diverse, with about a fifth of all families living in urban settings, while others lived in rural areas and as nomads. By looking at two towns in the Middle East, Tripoli (north Lebanon) and Nablus (West Bank), and at the rich records of Islamic courts, we can begin to see a more complex picture of Arab family life that departs considerably from the image of the "traditional family."

Islamic Courts in the Ottoman Middle East: In the Ottoman Empire, Islamic courts preformed an exceptional variety of tasks, including those of public notaries, but also handled lawsuits, endowments issues, and were the only place for arbitration available to both the Jews and Christians. These courts applied both Sharia law, as well as the administrative law developed in Istanbul, the capital of the Ottoman Empire, as well as customary law that prevailed in a specific region. The courts also dealt with inheritance issues. Inheritance records reveal how one generation in a family attempted to shape and influence the future development of the family. Looking at the court records from Nablus and Tripoli from about 1800 to 1860 tells us how several generations tried to distribute family wealth.

We might expect little difference to be detected between the inheritance practices of Nablus and those of Tripoli for several reasons. Both towns viewed themselves as a "little Damascus" and not as provincial backwaters; both traded actively with the surrounding smaller, countryside communities; and in both towns traditional authority structures, such as the Islamic courts, played key roles. However, despite these similarities, inheritance practices differed significantly. The key difference turns out to be - gender. Daughters received very different parts of the family endowment. This pattern seems revealing because an endowment is a unique tool used by parents to shape a very fundamental part of the family's future.

Types of Endowments and Their Prevalence in Nablus and Tripoli: A waqf is a religious or charitable endowment, typically consisting of immovable property such as land or buildings. In traditional Islamic estate law, ownership of all immovable property reverted back to the ruler once the owner passed away, unlike in other traditions where descendents inherit property. However, by donating property to a worthy religious or humanitarian purpose, the donor effectively prevented the property from reverting back to the ruler by naming children as trustees; by naming various trustees over a number of generations, the current owner, typically a man of means, provided a secure source of income for his descendents, relations, and other beneficiaries.

So, how does a person decide what part of the waqf goes to whom? The most inclusive way of naming trustees would be to name all children, both male and female as trustees for one or more generations (Pattern One). A somewhat less inclusive option would entrust male children and their descendents with a greater proportion of the property than the share entrusted to the female children and their descendents (Patterns Two and Three), while the least inclusive case would provide only males as beneficiaries (Pattern Four).

Interestingly, in Nablus fewer female children benefited from waqfs than in Tripoli, and in both Nablus and Tripoli traditional Islamic inheritance practices were not followed, leading to very different distributive outcomes. The results appear in the table below: