Thursday, March 30, 2017

The Challenges of Comparative Law and Transnational History

One of the ever-impressive aspects of working on transnational legal history is encountering the careers of many pioneering international lawyers. For an academic, one is struck by the polymath capabilities of those who moved between legal cultures and traditions well before the easy access of information that the internet has allowed.

What these internationalized careers help convey is that transnational law, and thus transnational legal history, is always concurrently engaged in comparative law. Distinct bodies of law formally divorced from any particular nation state, say WTO dispute resolution, are ever a hybrid amalgam of various national traditions, in construction and more so in practice.

In my own graduate education, I came to this realization first through the work of Yves Dezalay and Bryant Garth. Their first book, Dealing in Virtue, highlighted both this polymath quality in early international arbitrators and that the focal function of their abilities was not so much to practice professionally in distinct national settings (though many did) but to be able to navigate the linguistic and practical challenges of transnational spaces where these influences collided.

During my research for Futility, I came to appreciate this for many of the missionaries I studied. The term “cosmopolitan” is often used quite superficially, and today can simply denote a well-funded travel itinerary that substitutes taxi driver conversations for cultural immersion. By contrast, I was taken with, and without any personal religious sentiment, the serious intellectual rigor with which many dedicated missionaries confronted their transnational, inter-cultural challenges.

Even though I would come to be critical of the overall impact of missionaries on Sino-American relations, I could find little fault with the reflexive positions many missionaries eventual came to. John Nevius was one example who challenged my own preexisting assumptions about the critical cosmopolitanism of missionaries, and who was considered an iconoclast in Chinese missionary circles for his committed focus on local ownership and criticisms of naïveté about unequal power relationships in inter-cultural contexts

Wu Jinxiong (Wiki)
For Chinese actors, this type of relative sophistication was matched by difficulties navigating stark power asymmetries both with outside actors and their own domestic regimes. In the context of law, this led many lawyers to struggle with representational strategies at home while trying to critically understand the foreign legal systems and ideas they engaged with. A key example here was Wu Jingxiong (吳經熊) or John Wu, a Catholic convert who wrote throughout his career on Asian and Western legal systems in critical juxtaposition. Wu also actively engaged as a liberal minded reformer within the authoritarian Guomingdang regime who putatively governed Chinese from the late 1910s to the late 1940s. His life was a decidedly transnational one, but at its core one of a comparative lawyer.

Researching these actors helped shaped my views on some of the challenges of doing transnational legal history. There has always been the back and forth in legal history over the value of professional training in law, and vice-versa. Wherever one comes out on these debates, they are magnified in transnational contexts. I have argued elsewhere that comparative legal analysis requires foremost a critical view of any legal systems one looks to compare. When I teach comparative law, I teach it as a methods course where I hope students come to see that the pitfalls common in comparative work, generally tied to formalism and implicit comparison, are difficult to ever fully transcend.

Here the work on legal pluralism that grew out of anthropological studies of colonial law is instructive, as it necessitates looking not only to law in practice but also the interaction of multiple legal systems in a single social space. I was impacted in particular by Martin Chanock’s Law, Custom and Social Order, which showed how contemporary debates on African law often involve battles between invented histories of past legal practice conjured up by domestic and foreign actors alike. And I was very much guided by the example of Victor Li’s Law Without Lawyers, which was the first book I read that compared Chinese and American legal practice with a genuinely critical competency in both legal systems. Li’s work was inspiring in part because so many studies of Chinese law and legal history held out very critical views of Chinese legal practice, while coupled with almost completely idealized versions of American common law and legal history.

This inextricable relationship between transnational legal history and comparative law came up again and again in my research. Many of the actual courts where Chinese and American actors intersected were rife with complicated cultural politics, but also necessarily technical legal practice. Increasingly high quality historical studies have emerged on consular courts in China, especially the Mixed Court in Shanghai. Eileen Scully’s Bargaining From Afar was one of my first encounters with a work that took seriously the disjunctures between the stateside interpretations of Sino-American legal interactions and those of Americans actually practicing law in China.

This search for transnational spaces led me to the Far Eastern American Bar Association, which was formed in 1906 following the emerging mold of the ABA. Here again were lawyers working in a highly internationalized setting and carrying out often ad hoc comparative legal practices. The work of FEABA was important enough back in the US to garner comment by all number of elite legal actors, including whoever was sitting President at the time. Yet, much of the complexity of the actual legal practice which FEABA’s members carried out was far messier, technically and ethically, than most outside commentators cared to probe or wanted to admit.

One of the most instructive sites for Sino-American transnational legal dynamics was Dongwu or Soochow Law School. Following the lawyer-missionary model, Soochow was a missionary law school founded in the Langdellian mold at the turn of the 20th century. Alison Conner has written instructively about the school during her career, and through her work I began to look closely at the professors and curriculum at Soochow. Reading through the bulletins of the school and tracing their implications back to the US, I found many American law professors starting their teaching careers at Soochow, a nexus point in particular for the University of Michigan Law School. Moreover, battles at Soochow over curriculum and the nature of law as science both mirrored ongoing debates in the US over the Langdellian model and presaged much of the law and development literature on transplanting American legal education abroad.

It was in this particular vein of research that I began to question what I thought something like “comparative legal history” could be. If one is an adherent of institutional economics than comparison could take the more traditional form of trying to isolate separate legal developments across time and space in the hope of extracting transhistorical causal variables. Yet, for my object of study there was no truly isolated legal space to hermetically compare. This was evident in the transnational spaces I studied in China, but I increasingly came to appreciate how much the domestic legal history in the US had missed its own transnational legal influences.

At this point in time, Daniel Rodgers’ Atlantic Crossings had been shaking up the lost recognition of the trans-Atlantic influences on American law in the early 20th century. Other scholars have pushed this back later in time to the Revolutionary Era—explored recently by John Bessler’s The Birth of American Law which takes up the influence of Cesar Beccaria on early American criminal law thinking.

Ultimately, in Futility I would come to make the argument that the rise of “law and development” thinking about China in the early 20th century was part of the counter-level to the decline of the trans-Atlantic discourse Rodgers explored. I came to this by realizing that there were so many unexplored stories about the trans-Pacific contexts of American law, in part unmasked by my conviction that I had to develop a critical view of American law in the eras in which my subjects were engaging with China.

For example, the early career move of soon-to-be famous torts scholar and HLS professor Warren Seavey of  first teaching in Tianjin as one of the early graduates of Langdell’s curriculum made more and more sense. Moreover, as I would for Roscoe Pound, unearthing Seavey’s early career and later engagement with China helped make sense of his own underappreciated role in the early history of American human rights.

Warren Seavey (HLS)
In the end, I saw the actors I encountered in the production of Futility as full of lessons for how to do transnational legal history and how to practice comparative law. And they opened me to seeing a range of issues through very different eyes. This process of disabuse and reconstruction resonated with my training as an anthropologist, and pushed me to reconsider the very basic frames through which I was conceptualizing Sino-American relationships. It is this reconsideration which is the topic of my next blog post, “Empire and Imperialism: (Mis)Framing Cross-Cultural Engagements.”

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