Moving Beyond the Future Now Past of U.S.-China Legal Studies: Re-Opening the American Legal Mind?

Abstract

Current American debates regarding Sino-American affairs are dominated by recriminations over the implications of China's recent illiberal turn. Dim prospects for Chinese political liberalization have caused many to defend their promotion of post-1978 American engagement which was often publicly justified as promoting eventual liberalization in China, especially by those who worked to impact Chinese legal development. As the leading luminary of modern American China legal studies, Jerome Cohen has been moved to contextualize his own efforts as one who contributed greatly to the development of U.S.-China relations in this era. In his recent essay Was Helping China Build Its Post-1978 Legal System a Mistake?, Cohen defends his legacy amidst these recriminations while taking most direct aim at a reading of my book, The Futility of Law and Development: China and the Dangers of Exporting American Law. 

This essay explores Cohen's engagement with Futility to clarify its arguments and its account of the Sino-American legal relationship over the past three centuries. It responds to Cohen's reading by highlighting how Futility's history is predominantly concerned with the damage done to American legal culture as an early tradition of legal cosmopolitanism aimed at improving American law was traded for one exclusively focused on an ever unverified capacity to shape foreign legal development. This "closing of the American legal mind" not only stultified domestic legal innovation but also led to recurrent misperceptions of foreign legal systems like those which shaped our engagement with China throughout the twentieth century, including the post-1978 era. Moreover, the essay revisits how viewing U.S.-China relations through a unilateral frame of American influence has served to sustain deep-seated cultural resistance in the United States to revisiting our own domestic assumptions about the relationship between law, markets and democracy.

Ultimately, the essay argues for grounding a revision of the U.S.-China relationship, and the American study of Chinese law, in a more introspective position that can facilitate a clear-sighted analysis of both countries. It foregrounds that the uncomfortable questions that China’s illiberal turn holds are most acute for how American-led economic globalization became so accommodating to authoritarian regimes abroad while enervating democracy at home. Answering these questions will require re- opening the American legal mind, including a far more honest assessment of the international and domestic relationship of the American legal profession to democratic values. Refusing to answer such questions about ourselves, or presenting recent developments in the United States and China as simply aberrational or exceptional, risks promoting much uglier futures for both countries than those ardent and committed actors such as Cohen have long fought for.