Legal Orientalism, Zchinr 2005
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Ruskola, Legal Orientalism, ZChinR 2005 AUFSÄTZE Legal Orientalism Teemu Ruskola1 1[The] world-wide ... diffusion of [Western cul- Fifty years ago comparative law was a field in ture] has protected us as man had never been pro- search of a paradigm. In the inaugural issue of the tected before from having to take seriously the American Journal of Comparative Law in 1952, civilizations of other peoples; it has given to our Myres McDougal remarked unhappily, "The grea- culture a massive universality that we have long test confusion continues to prevail about what is ceased to account for historically, and which we being compared, about the purposes of compari- read off rather as necessary and inevitable.2 son, and about appropriate techniques."4 In short, - Ruth Benedict there seemed to be very little in the field that was not in a state of confusion. Two decades later, refer- [In China,] animals are divided into: (a) belon- ring to McDougal's bleak assessment, John Merry- ging to the Emperor, (b) embalmed, (c) tame, (d) man saw no evidence of progress: "few sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, comparative lawyers would suggest that matters (h) included in the present classification, (i) fren- have since improved."5 And only a few years ago, zied, (j) innumerable, (k) drawn with a very fine John Langbein suggested that comparative law camel hair brush, (l) et cetera, (m) having just bro- remains in dire straits: "If the study of comparative ken the water pitcher, (n) that from a long way off law were to be banned from American law schools look like flies.3 tomorrow morning, hardly anyone would notice."6 - Michel Foucault A certain amount of hand-wringing is thus de rigueur in any piece of comparative law scholarship 1 Assistant Professor of Law, American University; Sabbatical Visitor at the Center for the Study of Law and Culture and Senior Fellow at the that wants to be viewed as part of the solution Center for Chinese Legal Studies, Columbia Law School. A.B., A.M. rather than part of the problem. At the risk of per- (East Asian Studies), Stanford; J.D. Yale. - Ed. I have presented earlier drafts of this Article at several venues and thank the participants for petuating the notion that comparative lawyers suf- their feedback: Colloquium on Cultural Theory, Historical Methods and fer from a "Cinderella complex,"7 I too begin with the Study of Modern China at Columbia University; Colloquium on Law and Culture at Columbia Law School; Law, Culture and the Humanities the obligatory observation that comparative law conference at the University of Texas at Austin; Feminism and Legal remains a relatively underappreciated field in the Theory Workshop at Cornell Law School; Law and Society Association annual meeting in Budapest, Hungary; and Post-Colonial Law confer- legal academy. My main purpose, however, is to ence at American University, Washington College of Law. I am espe- cially indebted for their suggestions, questions, and criticisms to Lama Abu-Odeh, Nathaniel Berman, David Eng, Karen Engle, Martha Fine- man, Peter Fitzpatrick, Katherine Franke, Maria Gomez, Dicle Kogacio- 3 Michel Foucault, The Order of Things, at xv (1993) [hereinafter Fou- glu, Prabha Kotiswaran, Eugenia Lean, Benjamin Liebman, Christia cault, The Order of Things] (quoting a short story by Jorge Luis Borges, Mercer, Thomas Metzger, Naomi Mezey, Kunal Parker, Penny Pether, The Analytical Language of John Wilkins, in Other Inquisitions, 1937- Elizabeth Povinelli, Catherine Powell, Anupama Rao, Annelise Riles, 1952, at 103 (Ruth Simms trans., 1964)). Haun Saussy, Katherine Stone, Madhavi Sunder, Kendall Thomas, Leti 4 Myres McDougal, The Comparative Study of Law for Policy Purposes: Volpp, and Joan Williams. Don Clarke and Randy Peerenboom pro- Value Clarification as an Instrument of World Order, 1 Am. J. Comp. L. vided especially detailed and helpful criticism. At the inception of this 24, 28-29 (1952). project, I received critical feedback also from Barbara Fried, Janet Halley, 5 Stanley Lubman, Vicki Schultz, Bob Weisberg, and Jim Whitman. I am John Merryman, Comparative Law and Scientific Explanation, in Law indebted to Erika Evasdottir for enriching my reading of Gadamer, and in the United States of America in Social and Technological Revolution to Janet Jakobsen for insightful comments on the conclusion. A special 81, 82 n.3 (John N. Hazard & Wenceslas J. Wagner eds., 1974); see also thanks to John Merryman for his generosity of spirit in supporting this John Merryman, The Loneliness of the Comparative Lawyer and Other project. Even where I have been unable to answer the questions the Essays (1999). above individuals have posed, they have sharpened my argument at 6 John Langbein, The Influence of Comparative Procedure in the United every turn. I gratefully acknowledge the expert research assistance of States, 43 Am. J. Comp. L. 545, 549 (1995). Mary Ann Glendon echoes the Kelly Baldwin and Amy Ericksen. This project received generous finan- same observation: "American comparativists, in fact, often find that our cial support from Dean Claudio Grossman at the Washington College of colleagues abroad welcome our enterprise more than our colleagues at Law, as well as from Cornell Law School where I finished the Article as a home." Mary Ann Glendon, Why Cross Boundaries?, 53 Wash. & Lee L. visiting faculty member. Rev. 971, 972 (1996). This article was originally published in the Michigan Law Review 101 7 Günther Frankenberg, Critical Comparisons: Re-Thinking Compara- (2002), 179. tive Law, 26 Harv. Int'l L.J. 411, 419 (1985) (noting that comparative law- 2 Ruth Benedict, Patterns of Culture 6 (1952). yers suffer from low disciplinary self-esteem). 269 Ruskola, Legal Orientalism, ZChinR 2005 join other recent voices seeking to invigorate the I. Lack of "Law" in China field by proposing new avenues of inquiry.8 As there is a literary canon that establishes what Comparative law has existed in relative discipli- is and what is not literature, there is also a legal nary isolation.9 This Article is part of a larger effort canon that establishes what is and what is not to bring the mainstream of comparative law into law.10 conversation with other literatures: the study of - Boaventura de Sousa Santos non-Western law, the growing body of postcolonial That the Chinese legal tradition is lacking is an theory, as well as recent work in legal theory. I observation as clichéd as the solicitude that is routi- apply these theoretical frameworks to Chinese law nely expressed toward comparative law.11 "To all and, more specifically, to the historic claim made by intents and purposes foreigners are completely in many Western observers that China lacks an indi- the dark as to what and how law exists in China. genous tradition of "law." In the process, this Some persons whose reputation for scholarship Article traces a genealogy of certain Orientalist stands high would deny the right of the Chinese to understandings of Chinese law and explores the any law whatsoever - incredibly, but to my know- broader questions of who gets to decide who has ledge, a fact."12 This was one Western commenta- "law" and what the normative implications of its tor's melancholic observation at the end of the absence are. In answering these questions, I suggest nineteenth century. The renowned anthropologist that law is a crucial element in the constitution of Marcel Granet indeed announced in 1934, "The Chi- the modern Western subject and that, historically, nese notion of Order excludes, in all aspects, the ideas of the lack of Chinese legal subjectivity have idea of Law."13 And in William Alford's recent served to mark the outside of (Euro-American) law. observation, Western students of China continue to My aim here is not to condemn that history, which ignore and misunderstand "the effect of law upon has already been critiqued by others. Instead, my Chinese life."14 primary goal is to understand how history has shaped the field of knowledge in which the compa- But just what does it mean to claim that China rative study of Chinese law unfolds today, and how suffers from a (relative or absolute) lack of "law"? the West has come to understand itself through After all, only the most negligent observer could law. In these conditions, what are the ethics of com- miss the fact that imperial China boasted dynastic parison? legal codes going back to the Tang dynasty,15 and earlier. The point is usually a subtler one: whatever law China has known is a form that falls short of "real" law. This view is implicit in the oft-stated claim that Chinese law has been historically exclusi- 16 8 An eclectic bibliography of this growing literature includes the contri- vely penal and associated with criminal sanctions. butions to the 1997 Utah Law Review symposium, New Approaches to Comparative Law, 1997 Utah L. Rev. 255, as well as H. Patrick Glenn, Especially in continental systems, civil law stands Legal Traditions of the World: Sustainable Diversity in Law (2000); Janet at the heart of jurisprudence, and its absence thus E. Ainsworth, Categories and Culture: On the "Rectification of Names" signifies a gaping hole at the center of the Chinese in Comparative Law, 82 Cornell L. Rev. 19 (1996); William Alford, The 17 Limits of "Grand Theory" in Comparative Law, 61 Wash. L. Rev. 945 legal system. Sometimes, the implicit yardstick (1986) [hereinafter Alford, The Limits of "Grand Theory"]; Vivian Gross- wald Curran, Cultural Immersion, Difference, and Categories in U.S. Comparative Law, 46 Am. J. Comp. L. 43, 45 (1998); Nora Demleitner, 10 Challenge, Opportunity and Risk: An Era of Change in Comparative Boaventura de Sousa Santos, Toward a New Common Sense: Law, Law, 46 Am.