BOOK REVIEW How the West denied China's law Legal Orientalism: China, the US and Modern Law by Teemu Ruskola
By Dinesh Sharma
What is international law and who owns it? Why has China become the symbol of a lawless nation after the Cold War? Why is the US seen as the law-enforcer-in-chief while China as the law-breaker? Historically, how is it that the US is invariably seen as the chief exporter of law to the emerging BRICS economies by the international business and legal community?
In an era of globalization, we are all asking these questions. Teemu Ruskola, Professor of Law at Emory University, reveals in Legal Orientalism: China, the United States, and Modern Law that this association of China with lawlessness has a long historical
trail. He defines "Legal Orientalism" as consisting of political and cultural narratives about the law, which invariably associate the law with Western institutions (the European Union, the United States) and lawlessness with the non-Western societies (Asia, Africa and the rest). Analyzing the history and global impact of these cultural narratives, Ruskola demonstrates how legal Orientalism continues to shape the law and politics in remarkable ways - in China, in the US, and globally.
Ruskola claims that China has a history of corporation law by reinterpreting Confucian family law as a kind of corporate law. He asserts that the rise of extraterritorial jurisdiction in the nineteenth-century by the US into Asia-Pacific region was a form of legal imperialism. He traces its culmination in the establishment of a "US Court for China," an all-but-lawless tribunal where the constitution held no sway. The present-day reforms of Chinese law, Ruskola claims, are a kind of self-Orientalism. These and other fascinating exegeses help the reader understand the history and consequences of legal Orientalism, and to envision a new conception of global justice.
When I asked Ruskola why he relied on Edward Said's concept of Orientalism to interpret international law, he said, "The literary scholar Edward Said used the term 'Orientalism' to describe the way in which Europe has historically defined itself against Oriental 'Others' - so while Europeans are free individuals, Orientals are enslaved masses; the West is dynamic, the East stagnant; etc. I use the term 'legal Orientalism' to refer to the narratives we tell about what is and isn't law, and who has it and who doesn't."
China, he argued, historically has been seen as the home of Oriental despotism and, thus recently, it has been seen as the chief human-rights violator.
Ruskola's book might also help explain, partly, why China is always cast as the defendant and the West as the judge and the jury - not to mention the law enforcer. How did US law assume the role of promoter of freedom, democracy, and market economies? At least in part, we can see that the Orientalist discourses have been binary East-West divides: free versus despotic, modern versus primitive, dynamic versus stagnant, individualist versus collectivist, etc.
However, these dialectical pairs have never been symmetrical and getting more complex by the day. While the Western terminology may always seem superior, this may be changing ever so gradually. Orientalism was a story told by the West about the Orientals, not by the East. More than a story, it was a worldview that has been backed by power and prestige, a Western desire to expand economically and militarily. The so-called Orient has surely had its own views about the West, but either it has not been interested or unable to project those views globally, the way the West has - led by the United States in the twentieth century.
Here, one must ask the anti-relativistic or universalistic question: Are the ideals or rules of law upheld by the West indeed superior or just an attitudinal belief or deeply rooted cultural practices with perplexing idiosyncrasies. There are no easy answers, but with the spread of globalization these difficult questions are in search of a cogent answer.
Ruskola suggests that every society finds a unique way to balance the interests of persons as individuals and social obligations of communities in which they live. "However, in the West, we start with the idea of sacrosanct individual rights. In fact those rights aren't absolute but have numerous limits: your right to free speech doesn't allow you to shout 'Fire!' in a theater, nor does your right to own property include the right to own an atomic bomb."
In China, the political tradition begins with the collective: it emphasizes a person's duties to act in the collective interest. In fact, those duties also have to be calibrated and adjusted from context to context, so they're not absolute either. "But if you start from the ideological position that the individual is prior to society, rather than vice-versa, then the entire Chinese legal tradition does become basically an on-going human rights violation", says the author.
Historically, Ruskola reports that the first images of China in early modern Europe were quite positive, transmitted by Jesuits and missionaries. They represented Confucius as a kind of secular sage, "basically as a smart old white guy".
However, "with the explosion of European and US demand for Chinese good, traders, sailors and Protestant missionaries become the main source of information about China, and the European attitudes change from Sinophilia to Sinophobia and, ultimately, anti-Chinese racism. Merchants complain that Chinese law is 'arbitrary' and Protestant missionaries condemn Confucian ancestor worship as heathenism," concludes Ruskola.
If the West's economic and military superiority led to the universalization of Western law in the 19th and 20th centuries, how will China's ascendancy on the global stage in the 21st century likely to reverse that notion and instead introduce a more Chinese concept of law and legal institutions throughout the world? On this point, Ruskola is circumspect. He states that the story is still unfolding.
"Thus far, China's higher profile in those fields of power has not been matched by a similar rise in the global estimation of Chinese law and legal institutions," according to Ruskola. But this is the key question and we can anticipate the emergence of new formations of Chinese law in the future. "Although in its basic structure the PRC legal order is a replica of Western-style institutions;" a kind of "Self-Orientalization" is happening in China right now.
Legal structures with a specifically Chinese characteristic will take time to evolve, but it's certainly worth paying attention to. In this respect, this important book within the "Critical Legal Studies" genre will continue to guide comparative legal research on China and other Asian economies. In this respect, this important book within the comparative and critical legal studies tradition will continue to guide legal research on China and other Asian economies.
Legal Orientalism: China, the US and Modern Law by Teemu Ruskola. Harvard University Press (7 Jun 2013). ISBN-10: 0674073061. Price $35.96. Hardcover: 352 pages
Dinesh Sharma is the author of Barack Obama in Hawaii and Indonesia: The Making of a Global President, which was rated in the Top 10 Black History Books for 2012. His next book The Global Obama: Crossroads of Leadership in 21st Century will be published in December 2013 with Routledge Press.
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