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Introduction: Legal Orientalism-
While the People's Republic of China (PRC) has by now secured itself a solid reputation as a law breaker in chief, the United States has emerged as the world's chief law enforcer as well as its leading law exporter, administering programs for the promotion of rule- of- law everywhere— and perhaps nowhere as vigorously as in China.
It is only from a perspective that is both theoretical and historical that we can understand the effect that Orientalism has had on the development of both Chinese law and U.S. law, as well as on international law and Sino- U.S. relations more generally.
GLOBAL CIRCULATIONS OF LEGAL ORIENTALISM-----
On the other hand, the notion of rule- of- law—of which China is seen as the antithesis— is claimed today most insistently by the United States. Hence, a genuinely global understanding of China's place in law's world demands a consideration of the United States'
role in the legal production of modernity.
In his path- breaking monograph, Edward Said uses the term Orientalism to refer to discourses that structure Western understandings of the East. He emphasizes the extent to which the identity of the colonial and postcolonial West is a rhetorical achievement.
By now there are scores of studies of different varieties of Orientalism's. Remarkably, the study of specifically legal forms of Orientalism remains largely unexplored— the ways in which "the Orient," as well as the EuroAmerican "West," have been produced through discourses of law
Given the centrality of law to the political modernity of the West and the fundamental way in which Said's analysis destabilizes the epistemological status of East- West distinctions, a global study of law's world cannot afford to ignore Said's challenge.
Focusing on Chinese law, then, I use the framework of legal Orientalism to ask a number of related, overarching questions: Who has law? Who gets to decide who has law? And,
perhaps most importantly, what is at stake in asking the question?
To reiterate, there is indeed a strong cultural tendency to associate the United States with law (even if excessively so at times), and a corresponding historic tendency to associate
China with an absence of law (whether that absence be considered a vice or a virtue).
This rough cultural mapping of the triangulated relationship among China, the United States,
and law generates a number of assumptions that provide the framework for scores of comparative studies of China.
o These include, most notably, the notion that China is traditional— or worse,
primitive— while the United States is modern, as is the law that embodies its essential values.
o From these fundamental oppositions much else ensues, historically and conceptually, as this book aims to show.
It is vital to emphasize that the discourse of Chinese law is not, and cannot be, a selfcontained universe. It is never only about Chinese law, or lack thereof. Chinese law is a concept with a global circulation and with global effects.
Although it may be heuristically helpful to begin from a contrast between an (idealized)
American law and a (caricatured) Chinese lawlessness, such a juxtaposition is ultimately too simplistic and too static.
In 1906 the U.S. Congress passed a law entitled "An Act Creating a United States Court for
China and prescribing the jurisdiction thereof." The new court, equivalent to a federal
district court, assumed civil and criminal jurisdiction over American citizens within the
"District of China," which in turn was coincident with the Qing Empire.
o The court sat in the semicolonial port city of Shanghai, and appeals from its judgments were taken to the Ninth Judicial Circuit in San Francisco, with further appeals to the United States Supreme Court in Washington, D.C. Expanding its original mandate, the court eventually construed its jurisdiction to include not only
American citizens in the so- called District of China but also American "subjects"
from the newly colonized Philippines, and in some cases American citizens who had never set foot in China.
o As I studied the court further, I was stunned not only by the improbable fact that it had existed and the vast jurisdiction that it exercised, but also by the plain weirdness of the body of law that it applied in China. Th at body included English common law as it existed prior to American independence, general congressional acts, the municipal code of the District of Columbia, and the territorial code of Alaska, parts of which continued being applied in China even after they were repealed in Alaska,
to mention only some of the main sources of the court's jurisprudence. Th e court had only one sitting judge at any one time, and when he was away (either riding circuit in the cities of Hangzhou, Tianjin, or Canton, or being investigated for offi cial misconduct in Washington, D.C.), prisoners sometimes had to wait for months for a trial. Indeed, virtually the only federal law that did not apply in the District of China was the United States Constitution. Hence, there was no right to a jury trial nor to constitutional due pro cess, among other legal niceties
the tribunal operated for several de cades and its jurisdiction was not formally abolished until 1943
Notably, a belief in the incapacity of the Chinese to understand, let alone embody, the virtues of individual rights and rule- of- law came to provide a crucial justification for antiChinese immigration laws passed by Congress beginning in 1882.
o It held that in certain areas, including immigration, the federal government possesses "plenary powers": a discretionary authority unconstrained by the
o Ironically, a desire to banish subjects of Oriental despotism outside the borders of the United States resulted in the institutionalization of a kind of legal despotism inside the United States
It is in this sense that ideas of Chinese law constitute, indeed, a transnational discourse with global effects.
EXCEPTIONAL EMPIRES OF THE UNIVERSAL AND THE PAR TIC U LAR-Both China and the United States are, or view themselves as, exceptional in many regards.
Perhaps most importantly, they are the last two major empires that remain standing in the beginning of the millennium.
To be sure, the more or less contiguous nature of the continental territories of the PRC and the United States may make it slightly more difficult to recognize them as empires than, say,
the far- flung possessions of the erstwhile British Empire.
Nevertheless, the vast territorial footprint of both states is an unmistakably imperial achievement, enabled by a not dissimilar pro cess of continental expansion, whether in the name of a Manifest Destiny or a Confucian civilizing mission. ---
One way to analyze that distinction is to consider the differential relationship of the United
States and China to the universal and the particular— key categories by which Western thought has classified and evaluated knowledges, civilizations, polities, persons, and literally everything else for at least two millennia.
o Th e American system of government is thus not merely one expression among others of the universal values of democratic rule- of- law but their paradigmatic instance— a model for others to emulate. In short, the political values of the United
States are particularly universal. At the same time, insofar as China's legal tradition grows out of an enduring Oriental despotism, its political values are inherently suspect.
o Worse than simply unlegal, they are in effect antilegal. Hence, while the United
States' legal values are particularly universal, those of China appear as universally particular— categorically undemocratic
It is one of the key contemporary effects of this discursive framework that it sets up the
United States as a global enforcer of human rights and China as one of their preeminent violators.
o Th ere is no discourse of rule- of- law that is not at the same time a discourse of legal
Orientalism— a set of usually unarticulated cultural assumptions about that which is not law, and about those who do not have it. Whether we choose to recognize it or not, there is no world of legal modernity without an unlegal, despotic Orient to summon it into existence.
o To avoid a possible misreading of the term Orientalism, it is important to note that I
use it to refer both to ideational and material practices, which are ultimately indissociable from each other. While the world always and necessarily exceeds discourse, discourse always has a worldly existence and material effects.
Th e main vehicle for translating the knowledge produced by the academic discipline of comparative law into political institutions was the emerging profession of modern international law in the mid- to- late nineteenth century.
Once China's lawlessness was established as a legal rather than veridical fact, that fact came to justify its exclusion as a state from the privileges of international law
And similarly, as noted earlier, it permitted U.S. constitutional lawyers to justify a series of exclusion laws that for nearly sixty years denied Chinese persons admission to the United States.
As Jonas Grimheden observes, for better or worse contemporary discourses of Chinese law are "dominated by Americans studying China and by Chinese studying the U.S. legal system."
RULE- OF- LAW, RULE- OF- MEN, AND ORIENTAL DESPOTISMThe idea that China suffers from a lack of laws was not invented by the global press in 1989.
o Some persons whose reputation for scholarship stands high would deny the right of the Chinese to any law whatsoever— incredible but, to my knowledge, a fact."
Marcel Granet announced in 1934
The Chinese notion of Order excludes, in all aspects, the idea of Law."
In his critical review of the status of law in studies of Chinese society,
William Alford concludes that things have not improved markedly— indeed,
the very title of Alford's essay is "Law, Law, What Law?"
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