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13 AsianJLS 1 (2026)

handle is hein.journals/ajulsoc13 and id is 1 raw text is: Asian Journal of Law and Society (2026), 13, 1-29 doi:10.1017/als.2025.10022 CAMRIDGE RESEARCH ARTICLE Introductory Note on the Revival of Customary Rights: An implication from the Post-Disaster Eviction Cases Yuka Kaneko GSICS, Kobe University, Nada, Kobe, Japan Email: ykaneko@kobe-u.ac jp Abstract The term customary law is a label given by outsiders to what is simply the law for the local people. This article proposes an analytical framework for the case studies in this special issue in observing the normative contests through land and forestry dispute resolution in Asia and Africa, as a challenge to a changing regime of positive law under the pressures of contemporary legal transplant. A comparative view across jurisdictions may tell us the commonalities as well as the variation of the modes of normative modification through dialogues. As an attempt to demonstrate such an analytical approach, this article looks into the cases of normative resistance by local communities, similarly facing the eviction orders in the context of post-disaster reconstruction: in post-2004 Indian Ocean Tsunami in Aceh, Indonesia, and Moken villages in southern Thailand; in the post-2013 Typhoon Yolanda in Leyte, the Philippines; and post-2011 tsunami-affected communities in the East Japan. Keywords: customary rights; legal transplant; Positivitdt; legal postulate; post-disaster eviction I. Purpose: Observing bottom-up challenges to the developmentalist law Since the rise of neo-institutional economics in the 1990s, international development agencies have guided legal transplants or a project of globalization of national law in Asian and African developing countries,1 even at the sacrifice of recipient country's own democratic deliberation in the legislative process. Outside of the formal route of legislation, however, there are certain democratic routes which remain available for the modification of the thus transplanted formal law, through people-driven contests at the grassroots. Traditional mediation systems, some of which are linked to formal state forums such as judicial courts and administrative tribunals through the appeal system, are often the forums where such normative contests take place involving open dialogues. In such grassroots forums of people, the normative basis for their assertions is the justice that they know, in other words, customary law. But we should be reminded that the term customary law is a label given by outsiders to what is simply the law for the local people. The label custom or customary law started to matter in the positivist codification in Europe and its export to the colonies for 1 See for the supporting arguments on legal transplants by the institutional economists, Berkowitz, Pistor and Richard (2003) and Glaeser et al. (2004), La Porta, Lopez-De-Silanes and Shleifer (2008). See for their critique, Mattei (1994), Legrand (1997), and Kaneko (2020). © The Author(s), 2025. Published by Cambridge University Press in association with Shanghai Jiao Tong University. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/ licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.