[The] world-wide ... diffusion of [Western culture] has protected us as man had never been protected before from having to take seriously the civilizations of other peoples; it has given to our culture a massive universality that we have long ceased to account for historically, and which we read off rather as necessary and inevitable. (1)
[In China,] animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camel hair brush, (l) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies. (2)
Fifty years ago comparative law was a field in search of a paradigm. In the inaugural issue of the American Journal of Comparative Law in 1952, Myres McDougal remarked unhappily, "The greatest confusion continues to prevail about what is being compared, about the purposes of comparison, and about appropriate techniques." (3) In short, there seemed to be very little in the field that was not in a state of confusion. Two decades later, referring to McDougal's bleak assessment, John Merryman saw no evidence of progress: "few comparative lawyers would suggest that matters have since improved." (4) And only a few years ago, John Langbein suggested that comparative law remains in dire straits: "If the study of comparative law were to be banned from American law schools tomorrow morning, hardly anyone would notice." (5)
A certain amount of hand-wringing is thus de rigueur in any piece of comparative law scholarship that wants to be viewed as part of the solution rather than part of the problem. At the risk of perpetuating the notion that comparative lawyers suffer from a "Cinderella complex," (6) I too begin with the obligatory observation that comparative law remains a relatively underappreciated field in the legal academy. My main purpose, however, is to join other recent voices seeking to invigorate the field by proposing new avenues of inquiry. (7)
Comparative law has existed in relative disciplinary isolation. (8) This Article is part of a larger effort to bring the mainstream of comparative law into conversation with other literatures: the study of non-Western law, the growing body of postcolonial theory, as well as recent work in legal theory. I apply these theoretical frameworks to Chinese law and, more specifically, to the historic claim made by many Western observers that China lacks an indigenous tradition of "law." In the process, this Article traces a genealogy of certain Orientalist understandings of Chinese law and explores the broader questions of who gets to decide who has "law" and what the normative implications of its absence are. In answering these questions, I suggest that law is a crucial element in the constitution of the modern Western subject and that, historically, ideas of the lack of Chinese legal subjectivity have served to mark the outside of (Euro-American) law. My aim here is not to condemn that history, which has already been critiqued by others. Instead, my primary goal is to understand how history has shaped the field of knowledge in which the comparative study of Chinese law unfolds today, and how the West has come to understand itself through law. In these conditions, what are the ethics of comparison?
LACK OF "LAW" IN CHINA
As there is a literary canon that establishes what is and what is not literature, there is also a legal canon that establishes what is and what is not law. (9)
--Boaventura de Sousa Santos
That the Chinese legal tradition is lacking is an observation as cliched as the solicitude that is routinely expressed toward comparative law. (10) "To all intents and purposes foreigners are completely in the dark as to what and how law exists in China. Some persons whose reputation for scholarship stands high would deny the right of the Chinese to any law whatsoever--incredibly, but to my knowledge, a fact." (11) This was one Western commentator's melancholic observation at the end of the nineteenth century. The renowned anthropologist Marcel Granet indeed announced in 1934, "The Chinese notion of Order excludes, in all aspects, the idea of Law." (12) And in William Alford's recent observation, Western students of China continue to ignore and misunderstand "the effect of law upon Chinese life." (13)
But just what does it mean to claim that China suffers from a (relative or absolute) lack of "law"? After all, only the most negligent observer could miss the fact that imperial China boasted dynastic legal codes going back to the Tang dynasty, (14) 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 exclusively penal and associated with criminal sanctions. (15) Especially in continental systems, civil law stands at the heart of jurisprudence, and its absence thus signifies a gaping hole at the center of the Chinese legal system. (16) Sometimes, the implicit yardstick for "real" law is formal legal rationality in the Weberian sense, (17) while at other times it is a liberal legal order that constrains the state in a particular way--a configuration often referred to as "the rule of law." (18) Legal historian Thomas Stephens has recently argued that Chinese law is not even worthy of the term "jurisprudence." As a more descriptive term for the study of Chinese non-law, Stephens offers the neologism "obsequiiprudence," presumably signifying the scholarly study of obsequious submission to authority and hierarchy. (19) Whatever the merits of Stephens' thesis may be, in the view of nineteenth-century international lawyers Chinese law was so "uncivilized" as to exclude China from the "Family of Nations," which in turn served as a justification for reducing the country to a semi-colonial status under a regime of Western extraterritorial privileges. (20)
The goal of this Article is not to defend Chinese law, whether past, present or future. Ultimately, the answer to the question whether or not there is law in China is always embedded in the premises of the questioner: it necessarily depends on the observer's definition of law. Hence, my aim here is not to "prove" that there is in fact such a thing as a tradition of Chinese "law." Indeed, there already exists a considerable scholarly literature on Chinese law (however defined), and among students of Chinese law the idea of China's inherent lawlessness--at least in the crude form of the thesis--is a discredited notion. (21)
However, outside of the academic study of Chinese law, ideas of China's lawlessness continue to abound. Indeed, one of the primary obstacles to a serious discussion of Chinese law are the blank stares with which one is frequently met upon confessing an interest in the subject: "What Chinese `law'? There is no law in China!" (Sometimes followed by a more tentative, "Is there law in China?") Unlike the more traditional comparativist who studies French or German law, for example, the student of Chinese law frequently needs to convince her audience that the subject matter exists in the first place.
In this Article, however, I do not address the substantive arguments in the debate on law's existence in China. I do so not because there is no merit in engaging in this debate, (22) but because for present purposes, my primary interest is in analyzing how the West has constructed its cultural identity against China in terms of law. Why, despite vigorous efforts to debunk it, does the view of China's lawlessness continue to prevail--not only in the popular opinion and among policy-makers, but even among legal scholars who do not specialize in China as well as China scholars who do not specialize in law? (23) Chinese civil law, for example, has been discovered and re-discovered periodically in the West. What preconceptions make it possible for it to be discovered and forgotten again so quickly, leaving it to wait for yet another round of "discovery"?
There are no doubt multiple answers to this complex of questions. This Article directs the inquiry into a certain historiographic tradition it calls "legal Orientalism." It starts from the premise that, in many ways, "history does not belong to us; we belong to it." (24) Inevitably, "[o]ur historical consciousness is always filled with a variety of voices in which the echo of the past is heard." (25) The Orientalist history of comparative law constitutes one important tradition from which the work of today's comparative lawyers emerges, and whether we consciously reject or embrace that tradition, it still provides the context against which that work is written, read, understood, and misunderstood. As David Halperin describes the marvelous efficiency with which prejudice relies on unstated "truths" in communication, "if the message is already waiting at the receiver's end, it doesn't even need to be sent; it just needs to be activated." (26) Whatever our own "prejudices" about Chinese law may be--and they may be either positive or negative--in our writings we are likely to be activating messages of which we are not even aware. By elaborating a genealogy of legal Orientalism, I hope to analyze some prevailing cultural prejudices that inform the interpretation of comparative scholarship on Chinese Law.
Stated differently, this Article is an attempt to take account of the context in which the study of Chinese law necessarily unfolds, and to understand the historicity of contemporary scholarship. What can we learn from the history of comparative law and, indeed, from the history of Chinese legal history? (27) I suggest that by considering legal Orientalism as an ongoing cultural tradition we can understand better why even today claims about the status of Chinese law are so...