56 Pages Posted: 20 Jan 2003 Last revised: 28 May 2014
Joining other recent efforts to enrich the study of comparative law, this article seeks to bring the field into conversation with the study of non-Western law, the growing body of postcolonial theory, as well as other recent work in legal theory. The article applies these theoretical frameworks to the historic claim by many Western observers that China lacks an indigenous tradition of "law." In these claims, sometimes the implicit yardstick for "real" law is formal legal rationality in the Weberian sense, 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."
Analyzing the history of Western understandings of Chinese law and their different historical meanings, the article shows how certain notions of the Chinese lack of legal subjectivity have proven surprisingly enduring. At the same time, the article seeks to show how these relatively stable stereotypes have performed different functions at different times: e.g., confirming the superiority of European civilization in the works of Hegel and Marx; justifying the exclusion of Chinese immigrants in the United States in the latter half of the nineteenth century; and providing a rationale for incorporating China into a neo-liberal global trading regime in the twenty-first century. In the process, the article traces a preliminary genealogy of "legal Orientalism," and explores also the broader questions of who gets to decide who has "law" and what the normative implications of its absence are. Ultimately, the article argues 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.
In a larger sense, the article is a study of the processes by which claims of the putative absence of law in China have become part of the observers' cultural identity and, in turn, have contributed to the contents of the observations themselves. The focus of the article is thus on Western representations of Chinese law, rather than on Chinese law as it has been understood and practised in China. The article's ultimate goal is to understand how history has shaped the field of knowledge in which the comparative study of Chinese law unfolds today. After delineating a preliminary history of legal Orientalism, the article considers also the contemporary ethics of comparison in light of that history.
Keywords: Comparative method, legal theory, Chinese legal history, Orientalism, Confucianism, liberalism, Chinese Exclusion, Chinese-Americans
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