Roscoe Pound in China: A Lost Precedent for the Liabilities of American Legal Exceptionalism
Jedidiah J. Kroncke
São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP
January 17, 2012
BROOK. J. INT’L Law, Vol. 38, No. 1, 2012
Roscoe Pound retired from Harvard Law School in the late 1940’s as one of America’s most prominent legal figures. Mostly forgotten today is that Pound left Harvard with great fanfare to take up an appointment as legal adviser to China’s Guomindang Party (GMD). Pound went to China at the height of America’s also oft forgotten early 20th-century preoccupation with the Chinese Republic’s potential legal and political Americanization. As adviser, Pound created a grand reform agenda for Chinese law and became an active stateside propagandist for the GMD. Pound’s desire to transform the Chinese legal system along American lines was representative of new presumptions about how American law could act as a stimulus for the legal development of foreign legal systems. These presumptions set American law outside and above international legal discourse, establishing a key modern component of what is today often called American legal exceptionalism.
Pound failed to achieve any success in influencing Chinese legal reforms before the victory of Chinese Communist Party in 1949. More broadly, Pound’s “export” work in China undermined and degraded his early commitment to comparative law. Further, his representation of Chinese legal reform as following American patterns pro-actively warped domestic perceptions of Chinese legal developments. After 1949, Pound, like the American legal community more broadly, was unable to reflect critically on his failure. Instead, he used his time in China to fuel a polemical and influential anti-Communism that cast positive evaluations of the export of American law as a test of national loyalty. Pound’s experience in China serves as a key modern precedent for the liabilities inherent in the export-driven view of American law abroad that still shapes Sino-America legal relations and the normalization of modern American legal exceptionalism.
Number of Pages in PDF File: 67
Date posted: February 2, 2012 ; Last revised: August 14, 2013