1. Introduction
It is no longer accurate—if ever it was—to conceive of academics as securely ensconced in an ivory tower that enables them to pursue their scholarly inclinations at leisure, oblivious to the practical demands of the world that they live in. On the contrary, academics are not completely unbounded in conceiving, designing, and executing their research: institutional imperatives such as rankings, funding opportunities, and ethics review board conditions may all create fetters on the feasibility or implementation of academic projects. Yet, among the core factors that shape the space available for scholarly inquiry are exogenous ones—those outside of the university environment (Lackey, Reference Lackey2018). Such pressures may stem from the state and its institutions, as well as from the media and society at large, for instance, in the form of certain topics being perceived as contentious or even completely out-of-bounds for academic exploration and discussion. Those pressures appear to be increasing. The rise of nationalist-populist tendencies and the role of social media in spreading misinformation and fake news have complicated the environment in which academics fulfil their role. The Academic Freedom Index, which surveys the state of academic freedom across the globe, found in its 2023 update that this freedom “is in retreat for over 50% of the world’s population,” with academic institutions and their members in 22 countries or territories enjoying “significantly less freedom today than 10 years ago” (Kinzelbach et al., Reference Kinzelbach, Lindberg, Pelke and Spannagel2023, p. 1).
Given these realities, this article aims to explore the nature of the external pressures faced by a certain sub-group of academics—public law scholars, whose work focuses on Asia—as well as viable coping strategies that can be, and have been, adopted by these scholars in response. Our focus on public law scholars follows a line of thinking that theorises a positive relationship between academic freedom and democracy (Cole, Reference Cole2017; Council of Europe, 2020; Daniels, Reference Daniels2021). In a democracy, there is a particularly salient role for scholars whose research is devoted to the study of the legal system as it governs the state and its functioning. Arguably more so than other legal scholars, those working on public law issues are well placed to comment on (corrosive) democratic or constitutional developments and effect some form of accountability vis-à-vis the government. In a related vein, they can perform an instrumental role in educating members of the public about the importance and content of public law doctrines, concepts, and principles so that the latter can make informed decisions at the ballot box and meaningfully participate in the public square. This ties in with recent works that conceive of those belonging to the public law community as “constitutional actors” (Lazarus, Reference Lazarus2020) and a vital part of the “knowledge institutions” (Jackson, Reference Jackson2021) that are crucial for supporting, if not strengthening, constitutional democracy. Our geographical lens is partially accounted for by the fact that Asia is often understudied in discussions about academic freedom, including for legal scholars, with North Atlantic contexts often being prioritised (e.g. Reichman, Reference Reichman2019). In addition, we recognise that the pace of public law development in Asia is relentless and dynamic, which serves to make the work of academics working on such developments both imperative and challenging. This challenge is exacerbated by the pluralism that characterises many Asian societies (Neo and Bui, Reference Neo and Bui2019; Harding and Shah, Reference Harding and Shah2020), which means that points of friction are common among state organs as well as between the state and (parts of) the population, leaving it to public law scholars to engage in delicate ridge-walking between law, politics, and society in studying and commenting on those points of friction.
Our principal contribution is to the burgeoning body of literature on academic freedom, including in authoritarian or populist settings. We aim to add to that literature in a twofold manner. First, by focusing on scholars working on topics that directly involve the role of the state in regulating itself and society and the interplay between these forces. Precisely because of the focus of their work, public law scholars are especially prone to having their ability or willingness to conduct research curtailed or hampered—deliberately or otherwise. The threats to and limits on the work of these scholars are particularly important because of the unique role they play in relation to government and the link between academic freedom and constitutional values that are protected, limited, or denied by constitutional and administrative law measures. In this regard, our focus is on non-coercive external constraints as these may be less obvious yet equally nefarious. At the same time, such constraints allow scholars a certain room for manoeuvre that is unavailable, or to the same extent, in the face of direct violence, threats to their physical integrity or outright retaliation, which have moreover been well documented by human rights watchdogs, the press, and, increasingly, social media (often located outside the state in question where it can avoid censorship). Second, by going beyond an examination of the type of constraints faced by the public law academy and the potential damage to the pursuit of knowledge to an examination of creative approaches that can be or have been adopted to alleviate the impact of such pressures.
This article unfolds as follows. We begin, in Section 2, by positioning this project in the literature on academic freedom and contemporary debates about the role and responsibilities of public law scholars vis-à-vis society at large. This is followed, in Section 3, by a discussion of the data and methods used to collect empirical data about non-coercive constraints faced by public law scholars who work in a diverse range of Asian jurisdictions. Their experiences, sentiments, and approaches to scholarly work are surveyed in Section 4. We conclude by highlighting the need for greater self-reflectivity within the academy.
2. The public law academy under pressure
There is no single universal definition of academic freedom, as the notion is to some extent culturally and historically conditioned, with variations across time and space. For our purposes, the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel offers a helpful definition as far as its relationship with conducting research is concerned, with academic freedom conceptualised as “the freedom in carrying out research and disseminating and publishing the results thereof.” Its importance can be linked to truth-seeking, the dissemination of knowledge, and the cultivation of critical thinking, all of which are boons that allow democracy to thrive. In that vein, in many societies, the university is understood as playing a critical role in aspiring, established, or perhaps even more importantly today, backsliding liberal democracies. In his book, What Universities Owe Democracy, Ron Daniels makes a case for this understanding of the university and the value of academic freedom. In particular, he argues that “universities should be understood as standing firmly among the institutions critical to securing the full promise of liberal democracy and sharing in the responsibility to protect it when its legitimacy and durability are at risk” (Daniels, Reference Daniels2021, p. 20).
In some respects, the challenges to academic freedom in the established (and, in some cases, backsliding) liberal democracies in the Global North, and particularly in the United States, where Daniels is based, are particular to that context. While many societies face political polarisation, threats to academic freedom in the United States arise from that society’s partisan “culture wars” (Marris, Reference Marris2024). Although some of these tendencies are unique to the particular context of the American academy and its political context, other pressures on the academy extend beyond national borders. For example, layered onto domestic political threats to the academy is the geopolitical context in the third decade of this century, which finds a growing cold war between China and the United States and their allies. The implications of these tensions for academic freedom are still unfolding, but early indications suggest that governments in the Global North, particularly in North America, parts of Europe, and Australia, are increasingly wary of international research cooperation with China and are putting in place mechanisms to scrutinise research projects with geopolitical rivals ostensibly on national security grounds—often with a chilling impact on those projects.Footnote 1
The scholarship on academic freedom—along with the professional associations and institutional norms designed, in theory, to protect it—has long been concentrated in the liberal democracies of the North Atlantic world (e.g. Lee, Reference Lee2014; Rabban, Reference Rabban2024; De Gennaro, Hofmeister and Lüfter, Reference De Gennaro, Hofmeister and Lüfter2022). However, with the rising authoritarianism and democratic backsliding in Asia (Kasuya and Tan, Reference Kasuya and Tan2024), recent scholarship on this topic has sought to correct this imbalance. For example, a collection of essays edited by Dimitar D. Gueorguiev, New Threats to Academic Freedom in Asia, provides a survey of constraints generally faced by scholars in Japan, Singapore, China, and Indonesia (Gueorguiev, Reference Gueorguiev2022). However, most of the work on academic freedom in Asia is generic, rather than focused on the unique position of legal, much less public law, scholars in Asia;Footnote 2 of that body of work, many studies are jurisdiction-specific;Footnote 3 few grounded on ethnographic research.Footnote 4 Beyond the academy, other work on academic freedom can be found, directly or indirectly, in the work of human rights watchdogs and civil society organisations such as Scholars at Risk, which seeks to protect, defend, and relocate scholars in oppressive political contexts, whose lives or professional work are threatened by the authorities.Footnote 5 While many of the individuals whose lives and professional work have been threatened because of the nature of their work are public law scholars, we have not been able to find any study that specifically focuses on the threats to and limits on the work of public law scholars in Asia.Footnote 6 This article aims to extend the scholarship in this new direction.
Public law is, in many ways, the area of law closest to government. Constitutions form the legal foundation of the modern state, empowering organs of government, placing constraints on their power, and, in federal contexts, dividing power between the central and state or local governments, and even quasi-autonomous regions; administrative law governs the executive—the bureaucracy—as it implements laws and regulations, including the adjudicative and quasi-judicial functions of government agencies and regulators. Law professors and legal researchers in the academy who work on public law often find themselves conducting research on topics that are publicly visible and politically contentious. These scholars might be concerned with the distribution of scarce public goods or benefits such as social security type payments, tax incentives, education, health services, vaccines, agricultural subsidies, or research funding. Or they might focus on restrictions on individuals, communities, organisations, or businesses—whether by means of business licences or environmental standards to more politically charged policies such as restrictions on protests, censoring of information, or the detention of individuals deemed a threat to national security. In many of these situations, constitutional or human rights issues will be central—as will charges of abuse of power and calls for public accountability. Given these realities, public law scholars, it could be said, are part of the collective consciousness of the state, poised to critically analyse, reflect, and comment on governmental action. One important precondition for these scholars to fulfil their role satisfactorily is of the protection of their academic freedom.
In approaching this topic, we note that the region we are studying is highly heterogeneous and pluralistic, including in legal terms.Footnote 7 While some jurisdictions can be considered liberal constitutional democracies (such as South Korea or Taiwan), there is further a medley of other forms of constitutionalism. Thio Li-ann identifies three such forms: communitarian constitutionalism in which “the state actively espouses a public conception of the good which underlies the national identity” (Thio, Reference Thio2021, p. 303), religious or theocratic constitutionalism, mainly practised in Islamic or Buddhist polities such as Malaysia, Pakistan, Sri Lanka, and Thailand, and socialist constitutionalism, as found notably in Vietnam, Laos, and China. These alternative models conceive of the state and its institutions as committed to a particular substantive version of the common good, with ramifications for the leeway for scholars to question the desirability of pursuing those ideals. In addition to legal diversity in Asia, the many political ideologies and government systems run the gamut from fully fledged democracies to communist states to countries with strong militaries to quasi- or absolute monarchies. This regime diversity multiplies the challenges for scholars as they contend with forces that are more or less absent in the Western liberal democracies that have so far been the focus of academic freedom discussions. In addition, the global trend towards authoritarianism also plays out in Asia, affecting countries such as India (Joshi, Reference Joshi and Widmalm2021) and Cambodia, rendering public law academic scholarship on the region both more salient (Jhaveri, Khaitan and Samararatne, Reference Jhaveri, Khaitan and Samararatne2023) and precarious, as will become clear below.
Our article further contributes to an emerging literature on the professional ethics of public law scholars, notably when they engage in social, political, or legal activism alongside their academic work. Some scholars are wary of such conduct, arguing instead for a clear separation between scholarly and non-scholarly roles (Jakab, Reference Jakab2020) and adherence to a position of strict neutrality beyond the academy (Komárek, Reference Komárek2021). In a thoughtful and provocative editorial, Tarunabh Khaitan argues that the academy is better able to contribute to the realisation of ideals of justice indirectly through rigorous research and an associated strong culture of research integrity rather than through “scholactivism,” which he understands as “the existence of a motivation to directly pursue specific material outcomes through one’s scholarship” (Khaitan, Reference Khaitan2022, p. 2).Footnote 8 Others are more accepting of scholars contributing to social or political causes and agitating for constitutional change. Thus, Adrienne Stone has suggested that doing so may provide epistemic benefits. She explains that rather than suspending emotions such as anger in the face of injustice when conducting research, these could be harnessed as an energising force as well as leveraged as valuable sources of understanding (Stone, Reference Stone2023). Moreover, Cora Chan observes that in an authoritarian setting, the related sense of perseverance “may be needed if scholars are to make a contribution” (Chan, Reference Chan2023, p. 15). As we discuss further in these pages, Asian public law scholars disagree on the desirability and feasibility of engaging in activism, with some justifying the need for greater engagement on account of the fragility of many of Asia’s democratic regimes.
3. Data and methods: conducting fieldwork against the rise of authoritarianism
The data for this project were collected entirely online during the Covid-19 pandemic between November 2021 and August 2022. We conducted thirteen interviews with a total of 29 public law scholars, and we received one written response from another scholar who did not feel comfortable conversing directly with us. Most of our interviews were conducted in a small group setting, while one had only a single participant. Among our 30 participants, not quite half of them are based in Asia. The rest were affiliated with research institutions overseas but conducted research focused on Asia. We managed to recruit scholars from across the region, including Cambodia, Hong Kong, India, Japan, South Korea, Singapore, Sri Lanka, Taiwan, and Thailand, as well as colleagues based in Austria, Australia, Canada, and the UK. The geographic focus of their research covers Bangladesh, Bhutan, Cambodia, mainland China, Hong Kong, Taiwan, India, Indonesia, Japan, North Korea, South Korea, Malaysia, Myanmar, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam.
Given the sensitivity of our research topic, we recruited research participants entirely through professional networks and snowball sampling and did not issue a public call for participants. We started by compiling a list of potential participants based on our understanding of the circumstances in the region and the professional connections we have built over the years. We carefully evaluated the risk for each of our potential participants before reaching out to them and arranged the interviews strategically. Our decision to cover several jurisdictions across the region, rather than focusing on a specific country or two, resulted from rounds of discussions among the research team members. While we are most familiar with the legal and political environments in Singapore and China and could potentially focus on these two countries, we were aware of and concerned about the fact that voices from scholars in other Asian jurisdictions are also marginalised in scholarly discussions, including at a time when they too are struggling in terms of funding, surveillance, and other barriers in relaying accounts of public law developments in their jurisdiction. Pertinently, the latter are often more easily identified, given that in some of those countries, there are only a couple of public law scholars with the skills to conduct research in English and participate in the global discourse. By keeping our focus broader, we accordingly also aim to protect the identities of scholars who trusted us with their stories and experiences in those jurisdictions, as we could group them with people from other countries that shared some similarities in our presentation and discussion of the data.
We carefully arranged our groups and selected interviewees for each group, with attention to diverse backgrounds, academic ranks, country of residence, power relations, and employment and privacy risks. We avoided putting scholars from the same country of origin or residency in the same group. Only one interview had only one participant; the others had two or three. We also offered one participant the option of written responses to our questions. After identifying prospective groups, we sent out invitations to potential participants, providing them with our interview guide to assist their decision-making process. Despite our close connections with the community of public law scholars and the high level of trust from our colleagues in Asia, we faced some challenges in recruiting participants, in part because of the very nature of the subject matter, that is, the lack of space to engage with and conduct politically sensitive research. For example, one prospective participant in our research, based in Hong Kong, declined to participate in an interview citing constraints imposed by China’s National Security Law for Hong Kong.Footnote 9
While group interviews had the potential to increase economic and social risks (i.e. employment and privacy), we concluded that inviting public law scholars to join small groups of two to three participants was beneficial for the following reasons. First, we strived to create a relaxing environment within which people could converse with each other and share experiences. Second, we surmised that participants would feel safer in the small group setting, especially with colleagues from other institutions and regions. Third, it was our hope that our research participants would develop a sense of solidarity and possibly connect with one another after our sessions, given the difficulties for public law scholars to navigate the complexities of conducting their research under challenging political conditions.
Our interviews were all conducted by videoconferencing, apart from one written response. Each interview lasted one to two hours. One of us facilitated the discussion, with two other authors conducting observations and asking additional questions towards the end of each interview. We invited participants to discuss the impact of the following factors on their research: the larger political and societal environment, the status of their institutions, the relationship between their institutions with both the public and private sectors, the university environment, sensitivity and censorship of research topics, strategies to protect their own research participants and communities, among other things. We recorded our interviews for transcription purposes and deleted the recordings once our research assistant completed the transcription. Each member of the research team hand-coded our interviews and identified themes, after which we compared and combined themes. We have lightly edited quotations in this article for length and clarity.
Inevitably, there are limitations due to the broad coverage of jurisdictions of this study and the sensitive nature of the topics discussed. Our decision to recruit participants through our professional networks and snowball sampling limited the scholars we could potentially reach. Consequentially, our participants cannot represent the full panoply of experiences of public law scholars in Asia. Rather, the primary objective of our in-depth interviews is to reveal the complexities of factors that public law scholars face in the region and serve as a springboard for future studies. Despite our small sample, we were able to collect sufficient data to outline key common barriers and coping mechanisms shared among our participants. Throughout this article, we chose to foreground the narratives of public law scholars and let the data speak for themselves as much as possible, rather than diluting it with lengthy discussions of the literature on academic freedom in general.Footnote 10 This emphasis on telling the stories in their own words opens up some space for our readers to interpret those stories based on their own experiences as (public law) scholars and with reference to their prior knowledge of Asia.
4. Findings
Three themes emerged organically from our interviews. The first was the wide range of constraints—both within and beyond the institutional context of the university—that affected academic freedom. The second theme concerned the ways in which universities and the scholarly agenda in the Global North created pressures on several public law scholars in terms of individual research agendas and theory-building. The third set of themes concerned the challenges of and innovations needed to manage the space for academic freedom. How scholars managed this space was affected by their identity and how they identified as or were perceived by others as insiders, outsiders, or some kind of hybrid. The space for manoeuvre was also affected by or inspired by a scholar’s decision to engage in activism beyond the academy or to be more public-facing in their work, and the use of language figured in many scholars’ efforts to manage constraints on their academic freedom. In this part of the article, we consider each of these themes and sub-themes in turn.
4.1. Institutional constraints within and beyond the academy
The space available for scholarly inquiry for those working on questions of Asian public law is shaped by pressures from within the university and outside of it. Internal pressures notably related to the growing imperative to publish,Footnote 11 typically in high-ranking or recognised international journalsFootnote 12 (especially those with a citation indexFootnote 13 ). These pressures can be attributed to the importance Asian law schools increasingly place on rankings.Footnote 14 Despite the premium placed on research output, the time that scholars can dedicate to this activity and the institutional support provided may be limited. These limitations are due in part to the demands of teaching and service (administration), which may be significant, especially for younger law schools or those with scarce resources. State funding or alumni donations are typically less generous or less well developed than those in Global North institutions. In some cases, internal pressures and priorities lead researchers to leave the academy. In Sri Lanka, for instance, one researcher remarked that some of the brightest scholars in the academy would leave the university to work in externally funded or endowed think tanks or foundations.Footnote 15
As for external pressure, at its most foundational, scholars may be inhibited in their choice of research topics. In several jurisdictions, particular issues are considered too sensitive for scholarly examination and debate. These topics often relate to the regulation of social fault lines or the configuration of the political settlement—issues at the heart of what public law scholars would ordinarily be expected to engage with. Examples include the role of religion and the relationship between ordinary and Shariah courts in Malaysia, the treatment of ethnic minorities in China and Bhutan, the promotion of human rights in Cambodia, and the position of the monarchy in Thailand. Scholars that we spoke to perceived adverse legal or professional consequences if they were to conduct research on such topics.
One scholar working in Thailand mentioned possible negative repercussions for academic promotion. He spoke to us about a colleague who had published critical views on the law and history of the Thai monarchy and faced significant delays in his application for promotion. That colleague should have been promoted according to the “normal standard” but his application was held up “for more than five years without explanation.”Footnote 16 The average time for evaluating the application was two to three years, so the delay—particularly with no explanation given—was seen as excessive: “The only thing that we as colleagues can think about is because of his writing about monarchy.”Footnote 17 Another scholar (based in Asia) highlighted diminished possibilities to secure financial support from government fundings for empirical research regarding sensitive topics such as monarchical reform and judicial networking in some jurisdictions.Footnote 18 Yet another researcher, working in South Korea, highlighted political division, including within the media, as an important background condition that had to be handled carefully while conducting research. According to her, Korea is an ideologically divided society with a hostile media environment, and thus, her scholarly arguments regarding Korean constitutional history would sometimes be misunderstood as too political, partisan, or radical.Footnote 19
Other constraints emerged more directly from governmental policies, both in Asia and overseas. For example, formal legislation can exert a chilling effect on a scholar’s decision on whether to work on a given topic. One scholar working in Bangladesh explained that “we have a law that says you cannot criticize the father of nation and his family members. So … you can’t talk about that.”Footnote 20 Similarly, another scholar noted that “scholars working in Malaysia writing in those areas [religion and ethnic division] would have to well tread cautiously in order not to fall foul of the sedition laws.”Footnote 21 In Myanmar, a new kind of law that functions similarly as a powerful disincentive to work on entire jurisdictions, rather than specific topics, concerns foreign interference. Such laws typically set up wide-ranging reporting structures pertaining to overseas activities that include both internal reporting duties within the university and may even extend to the need to provide a justification to the government if so requested. One Australia-based scholar explained that researchers have to report to the Australian government if they want to engage in empirical research or collaborations, noting that “of course, the focus is on China” but that it affects research elsewhere in Asia.Footnote 22 This scholar noted that his university has a “Foreign Interference Act Committee,” which researchers have to report to on their overseas activities, including their overseas partners, research projects, consulting projects, and collaborations with scholars on the ground. This information will then be used for risk assessment at the university. The worst-case scenario, according to the scholar, is that the Australian government may be in touch for further discussions.
Those based outside the jurisdiction that they intend to study might also face an additional complication in the form of securing a visa and being able to enter the host country to conduct their fieldwork. This administrative obstacle can effectively give the government of the host country a kind of veto power over the research a scholar can conduct. One scholar writing on Bhutan did not feel able to write about issues concerning the “Nepali” minority living in southern Bhutan out of the concern that it would be difficult to get a visa to go to Bhutan in the future.Footnote 23
On occasion, governments in Asia go further still, actively monitoring the activities of public law academics inside their jurisdiction. Thus, a scholar working in Sri Lanka recounted how this reality meant that they had to find an alternative accommodation for conducting the interview and more generally, how they are keenly aware of when, and whether, to speak their mind: “Now you are in this situation where you assume that your phone is tapped, you assume that what you are doing is being tracked so you only say what you think you can say.” Aware of the risk of being monitored by the regime, the scholar had to go to a friend’s office to participate in our interview rather than speaking to us at home or the university.Footnote 24
Another scholar, who conducts research on Myanmar, spoke about the government’s use of informants and their constant balancing of whether to address a given topic:
[O]ver time you develop a sense … I call it spider sense, about what is going to cause trouble, and what’s not going to cause trouble … and it’s actually kind of a game … it’s like playing with fire. You know that you’re going to touch on something which is going to be delicate … and sometimes you do it because you know what the results are, and other times you don’t do it because again, you know what the results are going to be.
Unsurprisingly, what the scholar refers to as the “spider sense” is crucial to many other scholars working on authoritarian regimes when they are constantly testing the red lines.
Conversely, there may be less direct, less visible ways in which the government can constrain public law research. These tools include the power of the purse strings and its effect on the selection of priority areas for exploration and even the desired findings. Some scholars (e.g. in Taiwan) remarked that government research funding often required a focus on specific policy issues and preferences—noting that although they were “independent,” they were nevertheless “policy confined.”Footnote 25 Crucially, such effects can be felt not only domestically in Asia but also when funding is provided in the Global North for the study of Global South jurisdictions. According to an Australian-based scholar who relied on funding from Australian foreign affairs agencies to conduct research on Asia, when the Australian government supports a poorer country, including research regarding this country, it always expects “something in return” and some sort of benefits for Australia. The upshot is a “very transactional” relationship that is forged through such external funding.Footnote 26
Private funding may similarly come with certain strings attached, including when it comes to the precise geographic focus of the research to be conducted. Thus, another researcher noted a lack of interest in funding research projects on “poorer countries” such as Myanmar: “The response is usually it’s, like, well who cares about Myanmar? … They’re poor. That’s usually the response I get from a lot of donors. … It’s like these are poor countries, why do we care about poor countries? They can’t do anything for us.”Footnote 27 The difficulty in securing financial support was particularly challenging for those interested in carrying out socio-legal research, as they would not as easily be able to collect empirical data without funding.
One researcher working in a CMLVFootnote 28 country described the relationship between the government and the NGO sector as a “toxic” one. The scholar noted that although government researchers provide some rudimentary research support to parliament, some members of parliament pay little attention to those reports and instead focus only on their political agenda.Footnote 29 The researcher added that they sometimes felt constrained by the priorities of some of their own donors and the practical need to align their research agenda to the donor’s interests.Footnote 30
Taken together with the preceding observations, the picture that emerges is one of academics who face a combination of obvious and pernicious pressures. Some emanate from the state and an often nationalist agenda (Hammond, Reference Hammond, Kapur, Kong, Lo and Malone2023); other, more subtle constraints, may shape decisions as to topics and jurisdictions that are viable to explore. Indeed, an important assumption when it comes to external resources made available by those based in or funded by Global North institutions is often that Asia as part of the Global South has little of interest to offer the Global North, including in terms of the design of, or attitudes towards, public law. We unpack this theme in greater detail in the section that follows.
4.2. Global North/Global South hierarchies and influences
Modern public law ideas and concepts have predominantly been theorised in and with reference to experiences in the Global North, with the (silent) expectation that jurisdictions in what used to be known as the developing world would, and should, inexorably follow suit and emulate Global North standards, principles, and approaches. “Asia’s coevalness with Europe” (Ruskola, Reference Ruskola2011, p. 885) and North America has typically been denied. This worldview continues to shape the environment in which public law scholars focusing on Asia conduct their research. There appears to be a clear academic hierarchy and, in some cases, resource inequities between scholars and institutions in the Global North and Global South, even as we acknowledge that there are also intra-regional disparities, including between public and private universities. These patterns are found in attitudes towards theory-building and illustrative case studies, intellectual deference, and ways of thinking about and understanding the nature of law itself. Academic hierarchies also have a more insidious side, relating to experiences of colonialism and race. This section explores the nature and implications of such hierarchies.
4.2.1. North/South academic hierarchies
A common theme that emerged in many of the interviews concerned the relationship between research developed with reference to experiences in the Global North and research emanating from, or focused on, Asia. The former is conceived of, and treated as, suitable for establishing new theoretical constructs that can easily—and obviously—be generalised to a host of other jurisdictions, including those in the Global South. The latter is thought of as inevitably applied in nature and outlook, confirming that the notions constructed by Global North-centric scholars indeed have purchase beyond that setting. One Filipino researcher described being invited to comment on a forthcoming book by a leading academic publisher. The scholar noted that while it was not expressly stated in the invitation, “it’s always implied in the invitation that you’re invited because we want you to apply the book to the Philippines. … it’s implied that if you’re an Asian scholar, then just stick to applying the theory to your case. Don’t advance theory.”Footnote 31 The scholar described a situation in which his colleague developed a constitutional theory drawing on insights from the whole of Southeast Asia but received little recognition from American scholars who called it “a mid-level theory” due to the fact that “it is just Southeast Asia.”Footnote 32 The scholar added that, if someone wrote a paper commenting on how the US Constitution doesn’t live up to the Marxist standard, “people would laugh it out” and no one would publish it; but if the article is about a constitution in Asia that does not live up to certain Western standards, then it is likely to be published in a top journal.Footnote 33 The idea that the Global North provides the dominant paradigm and Asia the empirical illustration resonated with other academics. Some questioned whether well-known and generally accepted concepts are truly shared or universal in meaning and whether this should be the case. Should there be room for scholars in Asia to articulate alternative understandings of such concepts as the rule of law? As one scholar powerfully noted,
Asia is often seen as an empirical illustration of the theory that has been developed somewhere else. And when I say somewhere else, I mean predominantly in the United States and to a lesser degree Europe. And I think the question that can be raised is to what potential does Asia [have to] deliver on the potential of theory-building. … [For example] the rule of law discourse is a very European, American discourse.Footnote 34
Along similar lines, a Taiwanese researcher expressed concerns about the non-critical deference to Western influence: “I think Taiwan has always considered the West, especially the United States as an ally. You know, in the physical, in a literal sense, and also intellectual sense. I think Taiwanese academia are very receptive of, and even non-critically receptive of, Western influence.”Footnote 35 However, that deference to Western values was seen as more common in the previous generation of legal scholars. In contrast, this researcher noted that “in my generation there is a growing sense that Taiwan has developed to … an extent that … we should not make our legal arguments simply just pointing out the difference between Taiwan and advanced liberal Western liberal democracies.”Footnote 36
Some scholars suggested that the theoretical approach to law might itself be particularly “Western” in its epistemological approach. For instance, when asked about whether the Asian experiences were typically used as case studies or to generate theory, one scholar working on China from abroad identified similar themes in Chinese legal scholarship, observing that “all the theories, all the principles, all the precepts are from the West, or are supposed to be Western theories. Otherwise, they are not theories. They could be civilizations, could be cultures, could be traditions, but they are not theories.”Footnote 37 She suggested that “even Chinese scholars believe that we don’t have theories, we only have incidents, and we can only explain or interpret what happened in China with Western theories.”Footnote 38 But she posited that there might be some truth in these claims: “when it comes to theory as a concept, logic as a concept or as a system, they are Western. They’re not Chinese. Chinese people have a more circular view of the world … There’s nothing like categorically bad, there’s nothing categorically good. … I think that the Western tradition, or the Western tradition that we are familiar with, is more one-dimensional. … It’s right or wrong. It’s authoritarian regime or it’s liberal democracy. It couldn’t be something in between.”Footnote 39
These epistemic concerns might also be exacerbated by the differential treatment of Asia, in particular by those in the Global North. As one scholar observed, “certain countries in Asia that get a disproportionate amount of interest over others;”Footnote 40 by way of example, that “in Britain, South Asian studies is a synonym for Indian studies often, and I imagine there’s probably similar things about East Asia, where China dominates, for admittedly natural reasons. So I think when you’re not doing one of those big parts of Asia, it’s sometimes difficult to get the same amount of attention in either conferences or journals.”Footnote 41 This means that to the extent that there is, or will be, a correction to what Ran Hirschl has called the “usual suspects” (Hirschl, Reference Hirschl2014, p. 192), caution should be exercised to avoid India or China being used as proxies to understand the whole of Asia, as this would gloss over—in a deeply problematic manner—the incredible heterogeneity, including in public law thinking, that characterises this vast region (cf. Dann, Riegner and Bönnemann, Reference Dann, Riegner and Bönnemann2020).
4.2.2. Colonialism and racism in the academy
North–South tensions also manifest in other ways, notably when it comes to attitudes and approaches towards colonialism. These tendencies are evident in relation to legal education, with fellow academics and other stakeholders continuing to defer to Western-educated scholars. One scholar from Southeast Asia suggested that an observation about politics made by someone who attended an elite US university would be taken to have more authority than the same observation made by someone who had not attended that university: “because it’s in the US, they have more authority. … They tend to listen more to … people who come from their former empire that colonized us.”Footnote 42 At the same time, it can be ill-advised to uncritically teach theories developed in the Global North to an audience of individuals hailing from the Global South. Why? Because such theories might unwittingly become tools to consolidate a particular political agenda. One scholar described a conference in Europe where three white European professors were teaching postcolonial studies to 20 Indian students who did not come from the top law schools and had very legitimate grudges against the system.Footnote 43 Over three days, the professors were describing British colonialism as only the second wave of colonisation, with the “first being, no prizes, but I’m guessing Islamic colonialism.”Footnote 44 The professors, who argued that decolonisation had to involve both varieties of colonialism, “unwittingly providing the arguments in the vocabulary to legitimize Hindu majority in India.”Footnote 45
One South Asia-focused scholar remarked on the challenges faced by some colleagues in trying to show the complicated nature of colonial legacies, with some fearing that they might be called racist for doing so.Footnote 46 Another scholar also stressed the acknowledged importance among historians of studying empire, but noted that in the legal academy, “the moment you talk about the commonwealth, it’s so difficult to get through [i.e., to overcome—eds.] the assumption that you’re talking about empire” and that this kind of research was seen as “very regressive.”Footnote 47 In this scholar’s view, a study of this sort is a “contemporary project of comparativism, not … imperialism of Asia, but you have to … frustratedly, try to explain this every time.”Footnote 48 The corollary is that for public law scholars based on Global North jurisdictions, who focus on Asia, some topics can be seen as presumptively off-limits because academic administrators fail to distinguish between research on empire and an endorsement of colonialism.
Considerations of xenophobia and racism entered the academy in more direct ways too. For example, one Muslim scholar in a Western country described a personal encounter with a senior colleague in this way:
[One specific area] I teach is Islamic law. I remember that when I apply for a job in one university, a senior professor deliberately asked during the job talk, ‘Tell me […], are you a Muslim fundamentalist or no?’ I explained about my book to demonstrate how progressive I am. And then the Dean stopped me, ‘No […] the question is are you a Muslim fundamentalist or not? Just answer that question.’Footnote 49
It should be clear that the North–South dynamic can have a formative impact on the conditions under which public law scholars working on and in Asian jurisdictions conceive of and design their research. It helps determine the extent to which Asia-centric theory-building is deemed possible, appropriate, or even necessary, including by members of the scholarly community whose work does not focus on Asia. It further nudges those within the academy to reckon with what has been identified as a core factor that has moulded public law in the Global South, namely colonialism, and its enduring impact on the legal system. Going forward, it can be suggested that the realisation of an expanded and more inclusive approach to public law research on Asia, carried out from within and outside of it, will in large part be dependent on a change in the mindset of scholars and administrators. It would require viewing Asia as a worthy subject of exploration in its own right, prioritising the issues and concerns that emanate from the countries and societies in the region.
4.3. Managing the space for academic freedom
The leeway that Asia-focused public law scholars have to conduct their research is constrained in numerous ways: through legislation, strings attached to funding, institutional and structural imperatives within the university, as well as conceptions about the kind of research that is considered germane with reference to the wider scholarly discourse. At the same time, researchers are not necessarily cowed by the various limitations. They persist in identifying available room for academic exploration or become creative in working around barriers. This section explores the agency that academics have, even in the face of structural constraints, to carve out, and navigate, space to embark on and communicate public law research. Our interviews suggested that there are three key factors at play: one’s positioning as an insider or outsider; attitudes towards social or scholarly activism; and the deliberate use of language.
4.3.1. Insider/outside situations
Many Asia-focused public law scholars are living under the constitutional order that forms the object of their academic endeavours. Having experienced the system from within means that these scholars are well positioned to provide first-hand accounts that are not only steeped in local knowledge of relevant legal materials but also illuminate the historical, political, cultural, social, and economic context of the law. In contrast to these quintessential local insiders, we can identify a range of other forms of positioning that exhibit varying degrees of being an outsider of sorts. The first type is scholars who hold foreign citizenship—and have usually been legally trained abroad—but who have been residing in their host country for several years and feel comfortable exploring and commenting on its constitutional order. Next are members of the diaspora who follow and scrutinise developments in their native country from abroad. Finally, public law research on Asia can be conducted by scholars with a non-Asian passport who conduct their research from a base outside the region. For our interviewees, the scholar’s nexus with the jurisdiction can shape their willingness and ability to become acquainted with the jurisdiction’s public law issues. As one scholar stated: “It is not my place, I’m not from Hong Kong … it’s sort of how I felt initially.” A similar concern was expressed by another scholar in terms of being able to correctly read the situation and advance the local discourse: “[W]hat are the sensitivities here? And am I able to understand, am I equipped to do a good job would be more the question I would be asking.”Footnote 50 Yet another scholar expressed apprehension about the value of conducting fieldwork and their ability to uncover genuinely held attitudes towards the law and government: “I’m not even looking Asian, and so as a result I think I will be treated differently, positively and negatively and that really means I don’t hear the right stories or I get a particular narrative presented that is probably one presented to a foreigner but not to a local.” The calculus seems somewhat different for diasporic scholars. One scholar explained that he had made a deliberate decision to refrain from addressing local developments after moving abroad, due to a perceived loss of authority to do so. While the scholar continued to follow political news from abroad, he felt that it was no longer his place to comment on developments in his home country since he was not on the ground having the conversations directly with people anymore. He said, “I don’t have as much authority as I once did to speak on these things just because I’m not there.”Footnote 51 For this scholar, physical proximity to local stakeholders and events was crucial to being able to arrive at a properly informed view of the situation. Forfeiting his proximity meant losing the right to act as a critic.
Others believe, conversely, that being an outsider brings advantages, even compared to home-country-based scholars. One benefit is that geographical distance can make it easier to try to evaluate the local situation from a more objective stance, producing more effective and incisive observations. According to an Indonesian scholar based abroad, being away from their home country creates opportunities for an objective analysis of what happens at home. A further advantage is that outsiders may be more audacious in navigating local sensitivities. As one scholar attests to their relative boldness in choosing whom to approach as part of their fieldwork: “I think being an outsider allows me to do work that many local academics would shy away from due to political sensitivity—for example, with prominent opposition political figures or with dissidents.” If the research is conducted successfully (which may hinge, among others, on the visa and other legal requirements detailed earlier), the corollary is that accounts about the local public law scene become more diversified and comprehensive. The work of outsiders may thus complement that of local insiders.
Finally, the question of available resources may explain why some diasporic Asian scholars decide to become or remain outsiders. One scholar explicitly connected developmental considerations to continued participation in local debates on public law issues. When confronted with the attitude that “you don’t live here, so … you can’t talk,” he took the view that “the only way to deal with it as far as I was concerned was to do more and more and more good work, which demonstrated that it is they who don’t know what they’re talking about.”Footnote 52 And since this scholar was based abroad, at a well-resourced institution, he felt he would “bring to bear in a functioning university environment … a degree and quality of research that they can’t match” and so the “the whole you-are-not-here thing just sounds very hollow and then they shut up.”Footnote 53 This scholar’s experience draws attention to the importance of financial support and university organisation in one’s ability to conduct research that is considered “good” or can generate impact within the field and beyond. In this regard, it should be pointed out that numerous Asian jurisdictions continue to qualify as developmental states, with ramifications for the way their universities can, and do, operate and the extent to which these can empower—financially, logistically, and otherwise—their faculty in the study of public law questions.Footnote 54 The economic divide between universities in the Global North and those in the Global South may also have repercussions for the quality and kind of research that is expected of scholars associated with the latter as well as with what is actually carried out.
4.3.2. Scholar activism: imperatives, means, and limits
Public law scholars respond to external pressures in different ways. For some, their role as academics is to articulate and interpret the law as it is. In most legal contexts, however, public law is contextual, and words and principles can be understood and applied in different ways. The role of the public law scholar, at a minimum, involves interpreting the law in its linguistic, historical, social, and political contexts. Some scholars might be content to view their role in this way—using the tools of legal and contextual interpretation to articulate and expound the law in their publications, while acknowledging the often-contested nature of this exercise. For other public law scholars, however, it might not be enough to stand by and debate the meaning of law—particularly, when the government uses the law instrumentally to oppress individuals, communities, or political opponents. Some might therefore go further, taking a public stand on issues in “op-eds,” commenting on social media, appearing in interviews, or even joining a protest. This section explores the considerations that might prompt a legal scholar to take on a more activist role—or to be a more public-facing figure.
Many of the researchers we spoke to had strong views on the duty of academics to engage in critical or controversial public law issues. One scholar, for instance, explained that “there’s almost like a moral duty that I have” because “there are so many people who are looking to me for some kind of leadership or guidance if nothing else.”Footnote 55 Another explained that in his country’s political context in South Asia, “it’s very difficult not to be a public facing figure” in contrast with the “compartmentalized world within which academia, activism, and policy and the political process operate in the West.”Footnote 56 This sentiment was echoed by a scholar in the Northeast Asia, who noted that, “considering political culture, level of legal development, and the rule of law, and the patterns of interaction between law and politics, and even political, public conception of law, power, democracy and politics, of given countries, legal scholars feel different kinds of pressure from Western established democracies.”Footnote 57 Another researcher highlighted that researcher’s discomfort in focusing on academic work alone:
[T]here are times where [I have] certain conversations about something or another in constitutional law and come back feeling extremely frustrated because I feel like we are just talking to each other. We read our work and where is this taking anybody? And well, we get published. Yeah, so what. … I love my academic work and … it motivates me enough to make me get up in the morning and do it and if I don’t do it, I miss it, but I also feel like there’s something else that’s missing. I can’t really articulate it, but I feel that that’s important and I need to see to it that missing part as well as I continue because I feel like I can shut out a lot of what’s happening here and continue to publish, because once you figure it out you can keep doing it, but I feel like that’s just not right.Footnote 58
For some researchers, the broader political context was cited as an important factor influencing their engagement on contentious public issues. In Sri Lanka, for example, one scholar noted that many academics who engaged in “activism” eventually left the academy and stopped publishing. That same scholar expressed a concern not about those individual choices, but generationally for the academy:
I’m not saying it’s a good or bad thing, but if we continue to do that generationally, the field is suffering as a result of it. I’m not expecting those individuals to take the onus to come back. But here again is where we need to think beyond political boundaries and think beyond individual institutional boundaries, to ask ourselves what is our collective responsibility in helping the academics to occupy these spaces, maybe at different times in different ways.Footnote 59
Another scholar, based in Thailand, observed that student activism and involvement in protests created more critical space for academic researchers. Before the youth protests, researchers would have to “think hard” before touching on the monarchy in their work.Footnote 60 However, the protesters broke “a lot of cultural taboos,” allowing scholars to begin to talk more and do more research on the monarchy reform.Footnote 61 The scholar acknowledged that the government is trying to crack down on the protesters, but observed that “I don’t know if it’s become more dangerous but at the same time it’s become freer. … So, when you talk about a reform, actually this is a very modest view to talk about, this very modest option because on the street people talk about like abolishing the monarchy, right…we are actually very modest indeed.”Footnote 62
Several researchers, however, expressed concerns about ensuring that activism or engagement outside the academy did not compromise their duties as academic researchers. One expressed concern about activism, drawing a “strong” distinction between activism, which he avoided, and engagement, which he said was “really important.”Footnote 63 Another warned that “scholars should not get directly involved in specific cases or act with the motivation to directly pursue specific material outcomes, it’s against the moral ethics of scholarship.”Footnote 64 Other researchers were even more direct about the importance, within the academy, of maintaining objectivity. One researcher, while enumerating interviews with international news media, expressed the point that a scholar should criticise or praise whenever it is necessary, as “we all build our academic reputations” and we have to take the trust in scholars seriously.Footnote 65
At the same time, activism is not always an option. Several interviewees stressed the importance of keeping a low profile to avoid attracting attention from the authorities. One scholar at a research centre committed to promoting human rights education in Southeast Asia often had to keep the centre’s annual academic conferences at a low profile, even if they involved leading researchers in the area. The scholar had to deliberately reduce the impact of their events to “continue to work in the academic field in human rights.”Footnote 66 As he explained, if he and his colleague weren’t careful, they would lose the [research] centre and its academic role at the University. And as a result, “no one will continue to do the work, and it would have a large impact on general education… We do not want to risk anything to lose the centre.”Footnote 67 For this scholar, ensuring the sustainability of the centre was more important than promoting their events at this stage. This scholar was conscious of the lack of institutional support and protection for their researchers and the fact that they would have to bear the consequences if they were targeted by the government. At a time when the younger generation of researchers is reluctant to get involved in this type of work and when the general public looks down on human rights researchers in the country, attracting attention to the centre and its researchers may make it even more difficult to attract researchers.Footnote 68 Keeping a low profile sacrifices short-term social impact for long-term human rights education in the region.
Keeping a low profile is also an important strategy for scholars to protect themselves and cultivate space for their own work. Several scholars we interviewed had deliberately reduced media exposure and turned down public speaking events, with some others intentionally avoiding attracting attention from the authorities by carefully planning immigration and social activities. One Australia-based scholar has been turning down media engagement invitations since his contacts in Southeast Asia warned him of the sensitivity of his work and asked him to remove statements on the Internet that made the authorities uncomfortable.Footnote 69 Another Australia-based researcher avoided public engagement in the media whenever she could for similar reasons.Footnote 70 The framing of questions by journalists also makes it extremely difficult for public law scholars who touch upon sensitive issues to stay safe, which these two scholars both found concerning. In a group interview, one of them shared: “There were invitations from BBC and CNN. But I just had a feeling that they were going to try and fish for answers about certain issues that I just was not willing to do that, not in a 30-second sound bite. There are certain things that are incredibly complicated, and they really deserve much more than what news media is willing to provide.”Footnote 71 The other scholar had the same impression based on her previous experiences with the media: “They may have an agenda and thus they try to push on me. The format is not really appropriate for the questions that we are exploring.”Footnote 72 The lack of attention on the part of some members of the news media to ethical practices and the protection of scholars working in authoritarian regimes is a concerning issue. It not only offloads the risk of criticising the regimes to individual scholars but also actively exposes them to scrutiny by the regime. How and on what terms public law scholars in authoritarian regimes should interact with journalists and media organisations deserves more attention in future scholarship.
Possible surveillance, including by proxies in diaspora communities, is another concern that pushes overseas public law scholars to stay away from their communities to avoid attention from the authorities. One scholar based in Canada received emails and invitations from the Chinese embassy to attend events organised by organisations affiliated with the Chinese government.Footnote 73 She chose not to register for or attend those events out of fear of being monitored. In some contexts, a researcher’s citizenship was also a relevant consideration when conducting in-person empirical research. For example, since in-person interviews by foreign citizens in China tend to attract more attention from the authorities,Footnote 74 a scholar decided to keep her Chinese citizenship as a way of facilitating her in-country fieldwork on sensitive issues:
I am always considering whether I should change my nationality, but I am hesitant because I don’t know what’s going to happen next. In China, foreigners are not treated in the same way as Chinese. They are not even allowed to go to hotels without showing their ID. There are a lot of restrictions, especially in recent years… As a result, I haven’t changed my nationality. It’s mostly about whether I can have access and whether I would potentially draw attention from the authorities.Footnote 75
This opinion was shared by a foreign scholar accustomed to conducting research in China, who suggested that while foreigners writing on China about a decade ago had a higher level of security than Chinese scholars, it was far more complicated these days (in the early 2020s) because foreign scholars needed to consider the political bilateral relationship.Footnote 76
Some might argue that public law scholars should not engage in self-censorship. In this section, however, we show how some forms of self-censorship can be used by researchers to create more space for academic research in authoritarian regimes that rule by fear and uncertainty. It is a strategy our interviewees working in authoritarian regimes adopted to cultivate space to have an impact on society in a non-confrontational way.
4.3.3. Deliberate use of language
To generate impact, academically or socially, public law research needs to be communicated. This privileges the role of language, which is “law’s way of existing in the world” (Gaakeer, Reference Gaakeer and Monateri2012, p. 253). Many of our interviewees made deliberate choices when it comes to their use of language, whether to convey findings, engage with members of the public, or effect some form of accountability vis-à-vis the state. One technique is to engage in linguistic pirouettes to convey meaning by using concepts that are palatable to the authorities rather than the typical nomenclature. This option is primarily attractive for scholars whose work touches on sensitive issues in authoritarian states, such as those whose research focuses on mainland China, Hong Kong, and Cambodia. For example, notions such as constitutionalism and judicial independence are considered extremely sensitive in China. One Chinese scholar we interviewed, therefore, uses deliberate word choice in their published work on judicial activism, reframing the concepts to convey the same ideas and arguments: “I think it is a game of language. You don’t use judicial independence, but you use judicial non-interference from the administration or political interference… I think everybody knows that the government is trying to screen some words, so if you use these words then the journals won’t be able to publish your article. But you don’t need to use these words.”Footnote 77 The researcher elaborated:
And even today, I think in China many people will use code, for example you don’t say Xi, you say X, or “someone.” Everybody knows what you are talking about. It’s like a computer coding system, you know what you’re talking about and maybe the censorship authority knows what you are talking about, but as long as you don’t make it outright clear then everyone pretends that you try to attack … because it’s verbal.Footnote 78
Similarly, one scholar, a non-citizen of China, had to proceed cautiously in her fieldwork and collaboration with people in China. Aware of the difficulties in discussing constitutional issues and human rights, the scholar used “social protection”—a more politically acceptable term in China—to reframe her research on human rights. As she explained, “the content of the research we were doing was not changed, but what we called it was changed.”Footnote 79 By replacing politically sensitive words, some scholars were able to present their research outcomes without inviting unnecessary attention from the Chinese state.
Another way of dealing with language is to be aware of tonality. The importance of maintaining a neutral tone was also highlighted by a researcher working on human rights issues in Xinjiang and Hong Kong, where that researcher’s approach is to “never write in a polemical tone, and … always very strictly adhere to sort of academic conventions and protocols on writing about things.”Footnote 80 Another academic working on Hong Kong described a similar approach to conducting research under China’s new National Security Law for Hong Kong:
… because of the national security law, as well as … the greater use of this archaic provision on seditious libel … I’ve been a bit more careful with the language. … I still make the arguments that I wish to make. I still criticize the government. But I make sure that if I’m challenged, I’m always able to give some support to what I say, and that the language I use can always be justified. It is professional and academic language, which is different from the language of activists, social activists. And it’s not overly emotional.Footnote 81
Apart from using coded language or tonality as a strategy to avoid government scrutiny, some researchers noted that using English rather than the local or national language was helpful. In the view of one scholar working on China, “the Chinese Government is very wary of its academics speaking to lay audiences in Chinese. So, if I … keep myself to academic writing in English. That’s safe.”Footnote 82 A scholar based in India, however, noted that the use of jargon in research created a social barrier and thus would not “resonate with regular people,” even those educated in English.Footnote 83 However, other scholars noted advantages in where they were able to publishFootnote 84 and in avoiding scrutiny from local authorities. Not surprisingly, in countries where most people do not primarily communicate or receive education in English, the governments tend to pay less attention to publications and public talks in English. This leaves some space for scholars with English language skills to publish their works and communicate with an international audience. For example, one of the scholars interviewed, whose work focuses on Malaysia, said, “as a person writing in English, I suspect that the authorities will be less concerned. But they would be more concerned if I were to write in the Malay language and reach out to a bigger audience.”Footnote 85 This scholar’s viewpoint was supported by a Hong Kong-based scholar, who had been doing less public speaking and writing in Chinese because of the government’s targeting of scholars who spoke in Chinese to lay audiences. Her strategy was to try to keep to academia and write in English for academic audiences.Footnote 86 It is reasonable to assume that what matters here, as the former scholar suggested, is the potential impact on and contribution to public debate, more than the language per se. What seems to attract more attention from the repressive regimes is the public law scholar’s activism rather than their scholarly work.
4.3.4. Creativity and agency
Navigating the constraints on public law scholars requires creativity and a clear understanding of one’s identity as a public law scholar and the multiple roles that scholars are called upon to play. While some of the scholars sought a critical distance from the events they were studying, others responded almost instinctively to unexpected events or developments in the jurisdictions, choosing to comment publicly or to engage in other forms of activism. These choices were shaped, in part, by the scholar’s position as an insider or outsider or a hybrid of the two—with scholars taking advantage of the opportunities afforded to them by their position. Even apart from physical location, some felt that their potential impact was enhanced by a critical distance from events, while others felt compelled to abandon “objectivity” and enter the political fray in the name of resistance. Either way, language was a powerful tool—whether to convey a critical distance or to send critical messages in ways that avoided direct confrontation. In all these cases, the scholars we interviewed demonstrated how, in creative ways, they were able to exercise agency in the face of often challenging structural constraints.
5. Conclusion
Many of the participants noted, typically at the end of the interview, that this project had prompted them to reflect, for the first time, on their positionality—and on the way their identity and location affected their methodology and therefore their work. For us too, as researchers, it was the first time we had turned our own research lens inward—on our colleagues, individually and collectively. We recognised the trust they placed in us, and the ways that in observing and analysing their responses, we were compelled to think about our own positionality both in conducting this project and in our role as legal scholars generally. Among us, we have different linguistic abilities (consisting of a command of languages from within and beyond Asia), have spent decades in the region (one of us was born and raised in Asia), and have studied or worked at different institutions, with varying resources, located within and outside the region. We have considered ourselves insiders, outsiders, and insider-outsiders at different stages of our careers. We have researched a plethora of subjects and used various methods in our research, and consider ourselves attuned to many of the sensitivities and constraints faced by public law scholars who work in or on Asia. Working as a group of scholars, we have also realised how important collaborative research can be and the advantages of working in a diverse team with a broad range of experiences. Taken together, this speaks to the value of, if not need for, scholars becoming more cognizant of their own perspectives and lived experiences and what those bring, individually as well as collectively, to scholarly endeavours. This approach would extend to explicitly reckoning with our positionality in academic work, such as through the inclusion of statements that describe its core features and trace the likely effects thereof (Mortari, Reference Mortari2015).
However, in contrast with other fields and disciplines (Yanow, Reference Yanow2009), researchers in the legal academy have been slower to embrace reflective practice. While there are signs of change among some in the academy, especially among socio-legal researchers and marginalised scholars (Massoud, Reference Massoud2022, p. S66; Chua and Massoud, Reference Chua and Massoud2024), most legal research does not yet fully embrace the call for reflexivity found elsewhere. This is regrettable: “Reflexivity on the part of researchers plays an increasingly central role in interpretive science: attention to the ways in which the researcher’s positionality, whether literally locational (within the research setting) or personal (with respect, e.g. to demographic or experiential factors), can affect access to a research site and/or to people or other sources of information within it, and thereby the kinds of data generated” (Yanow, Reference Yanow2009, p. 585).
Our first general conclusion, then, concerns the importance of a greater self-consciousness within the legal academy of who we are as researchers, and the often less-than-visible, structural constraints on and external forces that shape our identity as scholars and the way we approach our research. At the same time, it should be clear that those structural constraints are not deterministic. Even in the most challenging circumstances, where external forces appear to place public law topics off-limits to researchers, creative coping strategies may be available—ways of working around political and institutional constraints so that it nevertheless remains possible to make relevant contributions to the field.
Secondly, and focusing squarely on the environment in which public law research on Asia is conducted, our project revealed a sometimes subtle, sometimes explicit discontent among many scholars about the uneven structures and expectations in the academy itself. The discontent was at times directed at the privileging of a particular approach to legal scholarship, an emphasis on a particular methodology or theoretical framing (or a privileging of the theory itself, as understood outside the region). At other times, it was directed at institutions—whether academic institutions that trained researchers who went on to occupy positions of influence in the academy in Asia, or at publishers or ranking platforms that imposed or implied an institutional “pecking order” or imposed a particular set of priorities on academic institutions and researchers.
At the same time, our findings show that many of the constraints faced by public law scholars working in or on Asia are difficult to navigate, and the nuanced research that emerges from challenging situations might not always appear the way editors, reviewers, and academic administrators—based in other, freer institutional and political contexts—might be socialised to expect. It is therefore important, in these contexts, for these academic adjudicators to be attuned both to the constraints described in this article and conscious of the creative workarounds and, in many cases, the personal and professional risks that many scholars have to take in conducting research on the sensitive topics that arise in public law research in Asia—and elsewhere.
In the end, there is much more to learn about the challenges attendant on the legal study of topics that implicate the state and how they can be navigated successfully to enable public law scholars to discharge their responsibilities in seeking a better understanding of societal problems and identifying possible solutions, all against the backdrop of their role in contributing to the emergence and enduring health of constitutional democracy. To be clear, our intention has not been to provide an exhaustive account of the professional world that those scholars inhabit, bearing in mind just how expansive and remarkably diverse Asian contexts are and the reality that individual experiences may vary depending on one’s positionality, as mentioned above. Indeed, as a relatively small-N study, this article cannot pretend to offer conclusive answers to the nature and impact of pressures faced by Asia-centric public law scholars. Rather, it should be conceived as a scoping article that provides an initial inventory of a diverse range of both obvious and more latent constraints as well as creative workarounds as these operate in a region that deserves greater attention in debates about the meaning and importance of academic freedom as well as related scholarly ethics. As such, the article has sought to identify pertinent common themes or tropes in our interviews with a view to providing a basis for further research—and, in that vein, we extend an invitation to others to take a deeper dive into the specific points identified, focusing on the quality of academic freedom in a subset of Asian jurisdictions or exploring a particular kind of constraint faced. What we can say confidently, however, is that further work along those lines and a more reflective practice of public law scholarship in Asia are desirable and would make our endeavours in this important field even more compelling.
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