When South Korea’s Supreme Court recently recognized same-sex couples’ eligibility for certain government welfare benefits, the decision sparked debate well beyond the country’s borders. Around the same time, Japan’s Supreme Court rejected marriage equality claims, while Hong Kong’s Legislative Council overwhelmingly voted down the Same-sex Partnership Registration Bill in its second reading in 2025, despite earlier judicial calls for legal recognition of same-sex relationships. Rather than advancing along a single trajectory, legal and judicial reform in Asia often proceed through fragmentation, hesitation, and reversal. Courts may act as catalysts when political institutions stall, while they may also reinforce existing limits or retreat from transformative claims. Understanding this ambivalence has become a critical task for scholars seeking to make sense of social and legal changes in Asia.
Against this backdrop, the Asian Law and Society Association (ALSA) Annual Conference 2025 was held on 12–13 December at Universitas Gadjah Mada in Yogyakarta, Indonesia, under the theme “Law and Justice in Asia: Embracing Diversity, Enhancing Equity”. Across the papers and reports presented at the conference, a recurring question was: how do Asian courts advance social change amid uncertainty?
Courts as Governance Actors
At the ALSA 2025 Meeting, scholars increasingly tended to examine courts as institutions embedded within broader governance landscapes. Courts were analyzed not as only adjudicators or dispute-resolution mechanisms, but as actors interacting continuously with administrative regulation, legislative design, technological change, and social structure. This shift was visible across diverse national contexts, including reflections from Indonesia, Japan, China, and Singapore and more. Papers explored, for example, whether Indonesian courts should always apply domestic law in transnational employment disputes; how Japanese courts have come to function as arenas of environmental citizenship; how new technologies are reshaping courtroom procedures in Southeast Asia; how judicial diversity and inclusion are negotiated within postcolonial judicial careers, how judicial scrutiny operates in public interest litigation, and how gendered perspectives enter, or fail to enter, judicial reasoning.
In the “Author-Meets-Readers” Session, Professor Melissa Crouch introduced her new book, The Palimpsest Constitution: The Social Life of Constitutions in Myanmar. This book illuminates the competition and interaction between military power, law, and courts, adopting a law and society approach which is quite rare in constitutional studies. Rather than asking whether courts simply “apply” the law correctly, taken together these papers asked deeper questions: how do courts participate in rulemaking when legal frameworks are incomplete? How do judicial practices evolve under conditions of uncertainty? And how is legal authority built, or contested, through practice rather than formal mandate? In this view, Asian courts have moved beyond the role of mere dispute resolvers. They have become part of the broader architecture of social governance, influencing social and policy reforms through adjudication, rule-making, and interaction (sometimes competition) with other branches of power.
Legal Change Through Judicial Experiments
My own conference paper, “Experimentation beyond the Law? The Supreme People’s Court and the Making of Commercial Legal Rules in China” was situated squarely within this research trajectory. This paper traced how, over the past three decades, China’s Supreme People’s Court (SPC) has played an increasingly influential role in shaping commercial and financial rules through judicial interpretations, guiding cases, and informal policy documents. In civil law jurisdictions, courts are usually understood as neutral institutions that apply the law rather than create legal rules. Lawmaking authority is conventionally reserved for the legislature. My paper, however, captured a distinctive phenomenon in China: many commercial legal rules have not been shaped solely by the highest legislative body, the National People’s Congress (NPC). Instead, they have been incrementally constructed through judicial interpretations, guiding cases, and policy documents issued by the SPC. If these rules were tested in judicial practice, many of them would be incorporated into the national legislation. This process constitutes an experimental cycle of “drafting—testing—endorsing”.
A typical example is the SPC’s judicial interpretations of China’s Company Law. China’s first Company Law in 1993 only has 230 articles, many of which were broad and principle-based terms. In response, the SPC gradually issued five interpretations from 2006 to 2020. The length of judicial rules largely exceeded the original statutes. Several foundational rules, such as the doctrine of corporate veil piercing and the legal consequences of shareholders’ capital withdrawal, were initially crafted by the SPC and later incorporated into subsequent statutory revisions of the Company Law.
The SPC’s judicial experiments have happened within blurred boundaries. For example, judicial interpretations are formally confined to resolving specific questions of legal application in individual cases. In practice, however, they have evolved into a central mechanism through which the SPC develops new commercial and financial rules. As early as 2000, the SPC issued judicial interpretations on China’s Guarantee Law that introduced rules inconsistent with existing statutory provisions. A similar pattern of power expansion can be seen in the SPC’s Meeting Minutes on Civil and Commercial Trail issued in 2019. Under the hierarchy of Chinese law, ordinary judicial documents like meeting minutes do not have the legal binding effects like formal laws. They cannot be directly cited by courts in judgment. Yet the SPC explicitly authorized lower courts to, at least partially, cite such meeting minutes in adjudication. An intriguing feature of these judicial experiments is that, although they have at times exceeded existing authorization boundaries, they have never been halted by the NPC’s review.
Answering this question requires situating judicial experimentation within China’s broader framework of experimental governance. Since the beginning of the economic reform era, policy changes in China have frequently proceeded through experimentation, which often described as “crossing the river by feeling the stones.” Major economic reforms have typically begun as local or sector-specific trials, allowing risks to be contained and adjustments to be made before broader adoption. Many of these policy experiments initially lacked clear legal authorization. Once they proved useful for economic development, the law was often revised to accommodate and institutionalize them. Under such “adaptive governance”, the SPC’s experiments in commercial and financial law are an extension of this logic. If newly created judicial rules are practically workable, even the experiments “beyond the law” tend to receive subsequent legislative recognition.
Quite a lot of studies have examined policy experiments in China’s economic governance, while less attention has been paid to the judicial experiments. My talk at ALSA 2025 sought to demonstrate that experimentalist governance is not confined to economic policies in China. The SPC should also be understood as having an important role in conducting judicial experiments. Such forms of judicial entrepreneurship may not be uniquely Chinese. Similar patterns of judicial innovation in other emerging Asian economies invite further investigation in future law and society research.
Looking Forward: Courts and Social Change in Asia
The conversations at the ALSA 2025 Meeting suggest that courts in Asia are becoming significant actors in governance. Social and legal change often unfolds not through formal legislation, but through incremental forms of judicial entrepreneurship. Courts have become sites where legal norms are tested, adjusted, and recalibrated in response to real-world pressures. Much of the earlier scholarship on Asian courts focused on public law, such as constitutional court, judicial review, and the judicialization of politics, etc. These fields remain important. Yet greater attention must also be paid to courts in the domain of private law: how they structure markets, shape financial systems, and participate in economic governance.
In contexts such as China, the SPC is acting as a rule-maker and experimenter in governing the country’s commercial market. Similar dynamics, though shaped by distinct institutional environments, can be observed across other major and emerging Asian economies. Looking ahead, understanding legal transformation in Asia, one of the world’s most dynamic economic regions, requires more attention to how courts shape economic governance.
Image: Taken at the ALSA 2025 Meeting (author’s image).