Functionalism has any number of academic
meanings. In anthropology, it references some of the early ethnographic work I
mentioned in my last post–carried out with the aspiration to entirely map the
inter-relationships of a bounded social space. But today I am using the term much more narrowly to
describe the manner in which the inquiry which led to my first book unfolded.
My turn from ethnography to
history was driven by an attempt to answer a very specific question about the field commonly called law and development–a short hand in
the United States for varied attempts to mold foreign legal systems through
the export of American law. In particular, the field has been characterized by many as passing through cycles of optimism and failure, with roaming geographical
foci over the last several decades. The ever-present, but in my mind unanswered
question, in post-mortems of these efforts is why they persisted when their
putative justification, normatively desirable transformation of said foreign
legal systems, never materialized when subjected to critical scrutiny.
For my work in China , my
initial fieldwork did not provide any satisfactory answers to this question,
and seemed to only recapitulate earlier work about the micro and macro-deficits
in the technocratic administration of these programs. I did encounter several reflective
practitioners whose complex relationship to their work made me puzzle over the
larger cultural and political ideologies in which they felt trapped.
Out of simple frustration, I
started trying to trace precedents for law and development work in
This is when I first unearthed Roscoe Pound’s time as an adviser to the Guomindang government in the late
1940s, Frank Goodnow’s infamous involvement with Chinese constitutional
processes in the 1910s, and Warren Seavey’s tenure teaching at a missionary law
school in Tianjin
in the 1900s. I found influential Harvard President Charles Eliot writing about property rights after a mission to China for the Carnegie Endowment
for International Peace, and issues of the Harvard Law Review contemplating
American law as a colonial science in the 1890s. I even found commentaries on Chinese law included in the very first turn of the century volumes of the still popular Green Bag publication.
But beyond these higher-profile
actors, I found prior to 1949 all number of smaller engagements that portrayed
a seemingly forgotten period of intense interest in Chinese law by the American
legal profession, and then only a subset of a broad popular fascination. Alfred Aldridge's The Dragon and the Eagle and John Tchen’s New York Before Chinatown were two early
discoveries that made me realize how shallow my preconceptions were about the
depth and complexity of Sino-American history.
Every decade I pushed into led to
ever-surprising findings until I arrived in the Revolutionary era to find a
complete reversal of the law and development ethos in dialogues about Chinese law
among the Founders. Many Founders were hungry to learn as much as they could
about China to inform
debates about America ’s
future legal institutions – from Thomas Jefferson’s deep interest in the
Chinese service exam to Benjamin Franklin’s personal obsession with Confucian
political philosophy.
Here is where I came to
appreciate the value of what I will now term synthetic history. As I ranged well
beyond the terrain of my own graduate training, I had to work to contextualize
these discrete findings. It took years to fully discover what sources actors in these eras were drawing on to form their conclusions about Chinese law, but also the social setting in which these attitudes functioned.
Very often my work in law would be a variation of existing scholarship in
another field, or engage developments in foreign relations tied to my legal
discoveries. I realized quickly that my background as an anthropologist
informed this desire for synthesis as I carried the holistic assumption that law
was always intimately tied to these other social fields.
The other major driving factor in
my desire to synthesize my findings with other fields of inquiry was again my
functionalist orientation. If my desire to explain the present cycles of
optimism and failure which law and development exhibited drove me to map out
these historical precedents, and their reversal in other eras, this still did
not explain why these reversals happened or why these contemporary cycles were so
persistent.
In many ways this was my critical
break from many existing legal histories which touched on these issues from a
perspective from within the law. Certainly, the professionalization of the
American law and notions of legal science at the turn of the 20th century played a key role (and, as
I will discuss in my last post, shapes my next book project). But, ultimately,
it was diplomatic and religious history which ended up being the major fields I
engaged with to synthesize a proper answer to the question I was seeking to
answer.
Anecdotally, the most profound
experience I had in this process was reading missionary publications from the late 19th century. I had found my way to these
writings because I had quickly discovered that almost all sources and ideas
about Chinese law in the United States ,
and Europe historically, came from
missionaries. And as I pushed deeper into their history, I found that all
of early legal reformers in China
were missionaries, often trained in both theology and law. And in the
missionary debates on how to effectively proselytize in China was revealed a
deeply self-critical and technically engaged discourse which fit the contours
of contemporary law and development scholarship.
I very specifically remember
sitting in the library of Berkeley's Graduate Theological Union and reading missionary journals right
after I had finished taking notes on a comprehensive review of USAID legal
reform projects written by Harry Hansen and Gary Blair. The conceptual
parallels were impossible to miss. Contemporary debates about the specific
content of the “rule of law,” as opposed to simply US law, were consonant with
missionary debates about the specific content of Christianity, as opposed to
simply American Christianity. Issues of local ownership and participation,
melded with anxieties over the actual value American expertise, were equally
present. The list went on.
Over time, this would lead me to conclude that very notion of “development” was conceptually
pioneered and molded by the missionary movement. And it was their influence that
gave the imprint of moral humanitarianism that would help render law and
development work so resistant to empirical feedback, while working itself into professional identity of American lawyers, as well as popular notions of American international purpose.
I was then drawn to scholars
working at the intersection of religious and diplomatic history, some well-known and some regrettably lost to contemporary discourse. I found
scholars railing at diplomatic history for ignoring the thorough penetration of
missionaries in the first institutions of American internationalism. No book was more transformative for my project in this regard than Joseph Grabill's Protestant Diplomacy and the Far East. One truly fortunate discovery was Andrew Preston’s Sword of the Spirit, Shield of the Faith, which forcefully detailed the central role of
religious actors and attitudes through the entirety of American foreign policy history. I was also lucky to be introduced
to Anna Su’s project on the specific American export of notions of religious
freedom abroad, which productively grappled with this same synthesis, and led to her recent book, Exporting Freedom.
I also met those who appreciated how much law and lawyers played a role in these very same histories of American internationalism,
such as Benjamin Coates’ work which would become Legalist Empire and Jonathan
Zasloff’s work on lawyers in early American foreign policy.
In some ways my work resonated
with these works, and in others a lack of resonance stimulated further
research. As I will discuss later, the rising dominance of the notion of “legal empire” which has inspired a great deal of novel work in legal history was a
poor fit for Sino-American relations.
None of this research and drive
to synthesize these "other" histories was what I expected when I first set out
to explore my ethnographic frustrations during graduate school. I do not think
any of it would have happened if I had built up the project as a more
traditional dissertation project. And, in all honesty, it took me many years to
sort it all out and I was exceedingly fortunate to have the time to do so. Futility was not a direct rewrite of my dissertation, but a de
novo effort to narrow all of these varied discoveries into a coherent narrative
and argument.
Throughout this process I came to see how
barriers to scholarly innovation can develop both between and within
disciplines. Even after Preston ’s encyclopedic
work, traditional diplomatic history still wrestles with the elitism of its
perspectives and sources, much like traditional legal history. The role of
religious motivations and thought is still at the fringes of legal scholarship.
If my functionalist orientation placed me at danger of overreach, it also freed me
to simply follow the sources where they went, and forced me to catch up on
making sense of them beyond my own initial competencies after the fact.
All of this is then complicated
again when working not just
between fields and sub-fields, but between legal regimes and cultures in
transnational contexts. Herein, I will return to this issue of
competencies in my next post, “The
Challenges of Comparative Law and Transnational History.”
