Book Review Series: "Legal Orientalism" by Teemu Ruskola
Reviewed by: Chloe Lichtenstein Genre: Chinese Law, Law and Culture
About the Author: Teemu Ruskola is Professor of Law at Emory University and an affiliated member of f the Finnish Center for Chinese Law and Legal Culture at the University of Helsinki. Prior to joining Emory, he taught at American University in Washington, D.C. He is the author of Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, forthcoming 2013); co-editor of Schlesinger’s Comparative Law (Foundation Press, 2009); and co-editor (with David L. Eng and Shuang Shen) of a special double issue of the journal Social Text on “China and the Human.” His other scholarship - appearing in the Michigan Law Review, the Stanford Law Review and the Yale Law Journal, among others - has explored the intersection of corporate and family law in China, the history and politics of Euro-American conceptions of sovereignty in the Asia-Pacific, and China’s historic status as an international legal subject.
“While the People’s Republic of China 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” (pages 1-2).
This observation is the basis for Teemu Ruskola’s book, Legal Orientalism – China, the United States, and Modern Law. China’s political and economic status has risen in recent years, yet its legal status has continued to decline since the end of the Cold War, when the United States began to adopt European prejudices that cast China’s legal system as oppressive (page 198). Ruskola explores the cultural tendency to associate the United States with law, and the corresponding historic tendency to view the differences between Chinese and Western law as an absence of law in China. Orientalism refers to the way Europe has historically defined itself against “Oriental Others” (page 40). Legal Orientalism, in turn, refers to the way the West defines what is and is not law in terms of the system used by the “Oriental Others” who are perceived not to have law. Ruskola’s book not only analyzes how the Western concept of Chinese law resulted in legal Orientalism, but how the Chinese concept of Chinese law contributed as well. He then confronts the impact legal Orientalism continues to have on American and Chinese perceptions of Chinese law.
The book discusses the role that law plays in constructing seemingly universal views of the United States and China, legal and non-legal, modern and pre-modern. Then, Ruskola challenges those views by calling into question the legitimacy of generally accepted differences between the two countries. In particular, he compares and contrasts United States corporations law with Chinese family law. He next tells the story of Chinese and American interactions over time, providing a foundation on which the current relationship between the countries was built. Additionally, how that relationship provided a justification for the United States to impose a legal framework on China that was arguably as unlegal as the one China is thought to have today. Finally, Ruskola examines how the relationship impacted how both China and the United States viewed and continue to view the Chinese legal system as archaic and Western legal systems as advanced.
In Chapter One, Ruskola provides an introduction to legal orientalism through a series of questions – Who has law? Who gets to decide who has law? What is at stake in asking the question (page 5)? While there is no one answer to what law is, Ruskola points out that there is a general consensus about what law is not: the rule of men. Rule-of-law vs. rule of men is just one of the binary East-West pairings that make up Orientalist discourses which frame China as lawless by virtue of its differences from the West.
In Chapter Two, Ruskola analyzes the understanding of Americans as legal subjects and Chinese as the “Oriental Other.” He concludes that Western and Chinese positions in the global discourse of legal modernity are reflections of how the two empires view one other and themselves. We are always engaged in “Othering,” Ruskola argues – thus the West will always interpret China and its legal traditions in terms of its own biases (page 51). Even positive portrayals of China are motivated by the authors’ desires to criticize their own economic conditions by pointing out “even the Chinese had done better” (page 46). According to Ruskola, we necessarily understand ourselves legally against our idea of others. He does not condemn acts of legal comparison, stating that we could not avoid them even if we wanted to, but urges the reader to consider different kinds of legal subjects, rather than fixing and classifying historical ones. Ruskola goes on to explain that as American values change, views on Asian values may switch from negative to positive and back again at a moment’s notice. For example, the Chinese emphasis on family can be seen either as “a positive ethic of care or as clannish nepotism” (page 53). Further, he feels that though Americans do not admit it, American law embodies some of the same ideals as law in China. This is illustrated by the purported American emphasis on the importance of change. Though Americans criticize Chinese legal tradition as being stagnant, they also celebrate the Constitution, which has been in force since its adoption. Thus, some of the very aspects of Chinese law that are criticized by the United States are part of its own legal system as well. Many negative perceptions of Chinese law may be based more on prejudices than in reality.
Ruskola takes this idea a step further in Chapter Three, by positing that just as Americans criticize the Chinese legal tradition for being stagnant though the American legal tradition has always revolved around the same Constitution, Americans criticize Chinese family law tradition despite that certain family law values are present in American corporate law. Additionally, he contends that Confucian family law can be seen as a type of corporation law. He argues that powerful Chinese families, which he refers to as Chinese clan corporations, had most, if not all, of the formal characteristics of a corporation. He states that the single most important fact about corporate law is separation of ownership and management, which was present in the Chinese household due to its hierarchical social structure. Conversely, the theory of corporate law in America is at odds with many explicitly paternalistic assumptions that inform its regulation (page 101). Examples of this are the concept of fiduciary duties and the mandatory disclosure provisions in place in securities regulation. Ruskola states that they are examples of fundamentally paternalistic legislation masquerading as a response to market imperfections. Viewed through this lens, Chinese law is not inherently as different from American law as it seems. Instead, the way these legal systems are framed may account for much of the perceived gap between them.
In Chapter Four, Ruskola tracks the history of the relationship between China and the United States to show that while the countries started out with a friendly relationship, a long-standing tradition of European prejudices about Chinese law shaped American ideology about China. Initially, the Americans did not set up colonies in China on the European imperial model or join in on the Opium War. Although the United States remained opposed to British territorial imperialism, with the signing of the Treaty of Wanghia in 1844, it took on a different kind of imperialism: extraterritorial imperialism (page 130). The treaty contained extraterritoriality, meaning United States citizens in China could only be tried by officials appointed by the United States to enforce American law in China.
Chapter Five analyzes further how legal Orientalism created a perceived legal justification for extraterritorial jurisdiction in China. The American consular courts in China were “plagued by incompetence, inefficiency, and corruption” (page 160). Though the scope of their authority did not extend beyond disputes involving American defendants, there were numerous instances where they sought to rule on cases between Chinese parties. The United States took this infringement of Chinese self-government a step further in 1906, when Congress passed an act for the establishment of the U.S. Court for China. The court was very inconsistent, at times operating under Alaskan codes, others using those of the District of Columbia, or even mixing and matching within a certain area of law. Moreover, even after the court selected a law, it felt free to ignore the penalties prescribed by that law. The court justified this lack of law with the conviction that China itself was a lawless place. Chapter Five then turns to the International Mixed Court. In theory the Mixed Court was a Chinese court applying Chinese law, but because of the putatively lawless nature of Chinese law, the foreign consuls in Shanghai took over its operations. The court never officially ceased to apply Chinese law, but like the U.S. Court, the law was applied inconsistently. The result was a Chinese law fabricated by the foreign consuls. Ruskola emphasizes that because the law applied was purportedly Chinese, the more despotic the Mixed Court made the law appear, the stronger its original justification that the administration of Chinese law could not be trusted to a purely Chinese court because Chinese law was so arbitrary. Ruskola calls this occurrence “a spectacular instance of legal Orientalism’s capacity to produce the conditions that validate it in the first place” (page 191).
Chapter Six concludes with an epilogue, examining the extent to which legal Orientalism lives on today in the United States and China, as well as the rest of the world. Despite the post-1978 reforms that took place in China, China’s efforts to establish itself as a modern nation-state have been met with caution and even resistance. For example, when China sought to enter the World Trade Organization (WTO) in 2001, “its accession protocol was of record length and filled with unprecedented ad hoc directives” that “exceeded both quantitatively and qualitatively what had been demanded of any other member of the WTO” (page 206). Moreover, the WTO ignored its own constitutional rules to ensure that China comply with the requirements of rule-of-law, demonstrating that the pattern of using perceived lawlessness in China as a justification for ignoring the law when dealing with China lives on as well. Moreover, Ruskola sees the very fact that China initiated these reforms as a kind of self-orientalism, brought on by China’s adoption of the view that its own legal tradition is outdated.
Teemu Ruskola does not resolve the issue of legal orientalism, but rather examines the key assumptions behind its emergence and describes the uneven effects that it produced (page 10). Ruskola illuminates the complexity of the discussion through his account of the development of legal orientalism, and the social and cultural factors stemming from China itself as well as the West that foster legal orientalism. Instead of providing the reader with a conclusion, Legal Orientalism gives the reader a foundation in the multiple perspectives needed to understand the topic.