MCLC: Legal Orientalism

Fri Oct 11 10:11:56 EDT 2013

MCLC LIST
From: kirk (denton.2 at osu.edu)
Subject: Legal Orientalism
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Source: Asia Times (9/27/13):
http://www.atimes.com/atimes/World/WOR-01-270913.html

BOOK REVIEW
How the West denied China's law
Legal Orientalism: China, the US and Modern Law by Teemu Ruskola
By Dinesh Sharma 

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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
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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.

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.