The Role of Emotion in Land Regulation: An Empirical Study of Online Advocacy in Authoritarian Asia

• DOI: http://doi.org/10.1111/lasr.12309
• Date: 01 March 2018
• Published date: 01 March 2018

The Role of Emotion in Land Regulation: An

Empirical Study of Online Advocacy in

Authoritarian Asia

John Gillespie

Scholarly interest about online advocacy in authoritarian settings is rapidly

growing. With one of Asia’s most active social media, Vietnam offers a promis-

ing site to investigate how online advocates navigate around state censorship

to influence regulatory decisionmaking. Much research about online advocacy

focuses on rational discourse, and fails to ask why satire and ridicule can

change regulatory outcomes when reasoned debate fails. This article consid-

ers two cases studies where online advocates changed regulatory outcomes in

Vietnam. It investigates why the regulators were sensitive to moral censure in

social media, and responded to appeals for solidarity, but were reluctant to

engage in rational public deliberation. These findings reveal insights into how

online advocacy can trigger emotional responses in officials that transform the

regulatory environment. The article concludes that rather than constituting

cognitive missteps, emotions are integral to government regulation in

Vietnam.

Scholarly interest regarding online advocacy

1

in authoritarian

settings is growing rapidly (Land 2009; Lei and Zhou 2015;

Rauchfleisch and Sch€

afer 2015). The critical role of online advo-

cacy in fomenting the Jasmine Revolutions in North Africa

(Chandler 2012) and in shaping legal and regulatory decision-

making in China has been well researched (Lei and Zhou 2015;

Tang 2015). Studies show that even authoritarian regimes, with

their urge to control electoral processes, courts, and public dis-

course, struggle to co-opt the diverse online exchanges that

frame regulatory decisionmaking (Tang 2015; Wells-Dang 2012).

Thank you to Dr. Nguyen Van Thang and the research team from the National Eco-

nomic University, Hanoi and to T & C Consulting for conducting the initial round of inter-

views for the C

ai R

ang and Ph

uMỹHưng case studies. I also owe a debt of gratitude to the

government officials, land users, bloggers, and lawyers who agreed to be interviewed, and

to The Asia Foundation for coordinating and funding the case studies.

Please direct all correspondence to John Gillespie, Monash University—Business Law

Department, PO Box 197 Caulfield East, Melbourne, VIC 3146, Australia; email: john.gil-

lespie@monash.edu

1

The term online advocacy refers to the use of the Internet, especially social media, to

educate and develop awareness about social issues and create pressure for policy and regu-

latory reform (Land 2009).

Law & Society Review, Volume 52, Number 1 (2018)

V

C2017 Law and Society Association. All rights reserved.

Much research about online advocacy focuses on “rational” dis-

course,

2

and fails to ask why satire and ridicule can change regu-

latory outcomes when reasoned debate fails (Lei and Zhou 2015;

Tang 2015). This article takes up this inquiry by exploring how

online advocacy can trigger emotional responses

3

that shape reg-

ulatory decisionmaking in Vietnam.

Possessing one of Asia’s most active social media environ-

ments,

4

Vietnam is a promising country in which to investigate

online advocacy. Vietnamese bloggers have advocated regulatory

reform in diverse areas such as the constitutional separation of

powers (Morris-Jung 2015), same-sex marriage (Quinn and Kier-

ans 2010), and environmental protection (Grey 2015; Wells-Dang

2012). This article advances the literature by investigating how

online advocates influenced urban regulation. It explores a regu-

latory puzzle: how does online advocacy overcome Soviet-based

governance practices in Vietnam, which insist on rational and sci-

entific regulatory processes (Pha

:m-

Di

^

em 2013), and arouse emo-

tional responses in regulators that open them to new ways of

understanding and governing cities?

It turns out that the conceptual divide between rational and

emotional regulation has deep historical roots. As Maroney

(2006: 120) explains:

A core presumption underlying modern legality is that reason

and emotion are different beasts entirely: they belong to sepa-

rate spheres of human existence; the sphere of law admits

only of reason; and vigilant policing is required to keep emo-

tion from creeping in where it does not belong.

This duality of reason and emotion has shaped legal theory

well beyond Europe (Habermas 1992: 10–27) and America

(Abrams and Keren 2010: 2003–08). It arguably reached a zenith

in scientific and rational Soviet governance (Quigley 1989), which

then influenced government regulators in China and Vietnam

(Gillespie 2011; Pha

:m-

Di

^

em 2013). In both Western and socialist

legal traditions, government regulation is regarded as the prod-

uct of well-prepared and systematic rational processes that codify

2

Drawing on Habermas’s (1987: 164–97) notion of “ideal speech,” the term rational

refers to logical and reasoned processes.

3

Emotional responses refer to the feelings and sensations of physical arousal, such as

happiness, surprise, fear, disgust, anger, and sadness, mentioned in the psychology litera-

ture (Oatley et al. 2006: 3–32), as well as the cultural labels applied to specific types of feel-

ings and sentiments that drive people to care about particular outcomes and take action for

change (Elster 2007: 160–61; Higgett and Thompson 2012: 2–4).

4

In 2015, 52 percent of the population regularly accessed the Internet (Chabro Net

2015; Grey 2015).

Gillespie 107

relevant information. Emotions, and those aspects of social life

involving feelings, are considered messy, unbounded, and outside

regulatory processes.

This article turns to a growing body of research that chal-

lenges this dualistic thinking. Social science has long recognized

that emotions are inextricably linked to thoughts and beliefs

(Durkheim 2001). Transporting this work into the legal arena,

feminist scholars such as Minow and Spelman (1988) questioned

the assumption that emotion is distinct from, and alien to, legal

and regulatory decisionmaking, and then queried the qualities of

detachment and impartiality that are conventionally associated

with legal reasoning. Adding to this body of work, Felstiner

et al.’s (1980: 632–37) seminal “naming, blaming and claiming”

study revealed the critical role that emotions play in the emer-

gence and regulation of disputes. This scholarship departed from

previous legal studies by treating emotions as instruments that

fine-tune legal decisionmaking, rather than impulses that lead us

astray (Abrams and Keren 2010; Maroney 2016).

More recent studies have examined how emotion influences

the actors who populate legal systems, such as litigants (Huang

and Wu 1992), judges (Bandes 2009), lawyers (Ammar and

Downey 2003), and juries (Sarat 2001). They have also explored

the roles emotions play in multiple legal contexts, including crim-

inal law (Lynch and Haney 2015), contract law (Keren 2010), and

family law (Huntington 2008). Leading researchers now argue

that law and emotion scholarship has reached a critical juncture

(Abrams and Keren 2010; Bandes and Blumenthal 2012; Maro-

ney 2016). If emotion is integral to law, “the question becomes

not whether emotion can have a role in law, but what kinds of

emotions operate in particular contexts and what sort of a role

do they play?” (Abrams and Keren 2010: 2009). Taking up this

inquiry, this article explores how online advocacy triggers emo-

tional responses that influence land administration in Vietnam.

In contrast to the rapidly expanding law and emotion litera-

ture, comparatively little has been written about how emotions

influence regulatory decisionmaking. This omission is surprising

because the regulatory studies literature discusses a vast array of

regulatory methods, such as naming and shaming and restorative

justice (Braithwaite 1989), that aim to control behavior by guid-

ing emotional responses. The concepts of “responsive regulation”

and “relational regulation” come closer to emotional decision-

making, by drawing our attention to the tacit and unspoken

interactions between regulators and regulated (Silbey 2011).

However Lange (2002) is one of the few scholars to examine how

regulatory decisionmaking is itself the outcome of emotional pro-

cesses. She questions the assumption that both regulators and

108 The Role of Emotion in Land Regulation