One major shift in modern anthropology occurred when the discipline “came home.” By the mid-20th century the neat division between sociological studies of Western nations and anthropological studies of non-Western societies progressively broke down. Harold Miner penned the classic article “Body Ritual Among the Nacirema” to highlight the necessity and discomfort of subjecting American culture to the same sort of dispassionate analysis of ritual as had been applied with such rigor abroad.
This move spurred ongoing debates about the inter-relationship between theories of interpretation and various subjects of analysis. The thread therein that became increasingly relevant in my experience writing Futility was examining the assumption that those studied were on the other side of various social inequalities. Edward Said’s influential work on the concept of Orientalism spawned numerous analyses about how foreign cultures are represented in academic writing. Implicit in these debates were the implications that arise when these representations are applied across power asymmetries. One book that impacted my own thinking on overseas state-action in this regard was James Scott’s Seeing Like a State, which explored attempts to “modernize” populations by powerful foreign agents who had deemed them underdeveloped.
What then did it mean then for anthropologists to study American law and lawyers, who were most often socially more powerful than anthropologists themselves? The answer to this is still unsettled, and there is still a great deal of discomfit when anthropologists write about the powerful. In my own work, I confronted this tension when my subject of study became American lawyers in
China, and where the dominant
frames of analysis I inherited from my home discipline were ill-fit to
capture the structure of Sino-American relations.
The most common term used by critical scholars to describe almost all American legal interactions abroad in the contemporary era is imperialism. Imperialism is a decidedly capacious concept, as it can capture modes of influence from direct territorial colonialism to a range of cultural and economic influences between and within nations.
In my graduate studies, I first came to the literature on “law and development” not through the frequently cited article by David Trubek and Marc Galanter, “Scholars in Self-Estrangement,” but through their contemporary James Gardner, who wrote an extensive post-mortem on US legal reform efforts in Latin America entitled Legal Imperialism.
choice of the frame of imperialism reflected the implicit normative judgment of the
word, and tried to capture the ethnocentrism he came to see at the heart of his
own work as an exporter of American law.
Yet, the central irony of Gardner’s work was that whatever type of imperialist he had been, he was not only a failed imperialist—in that his and his cohort’s attempt to influence Latin American legal education did not come to fruition—but also that from Gardner’s own analysis it is clear that the project was doomed from the start by a whole host of conceptual and logistical presumptions that the American lawyers engaged in the project carried with them.
As I began to explore the history of such American projects abroad, I recurrently came across this type of post-mortem. Yes, the markers of much pernicious imperialism were there, but especially in the Sino-American context the presumptions about power which motivated Said’s work were often lacking. I was also permanently impacted by the thesis of Norbert Elias in his book The Civilizing Process, where he framed colonial engagements as extensions of internal projects developed domestically before they were exported abroad.
At the same time, I began to see an almost opposite set of presumptions traditionally marking scholarship on
China which proactively asserted the
distinctiveness of China,
and which overtly rejected the Orientalist frame. It was here that I discovered
Jonathan Spence’s work To Change China. Spence detailed the lives of
many elite Western foreigners who had come to China with the dream of impacting
its development–often with altruistic intentions–but who left with their
presumptions of superiority in tow. These individuals could be judged as imperialists, but
the sense one is left with after Spence's case studies lacks the
normative outcry one would normally associate with invoking imperialism to
analyze their actions.
How to properly frame
engagement with the wider world has continued to be a contentious subject. The
very fact that Western nations engaged with China without formal colonialism set it
outside traditional post-colonial frames. China’s self-isolation from
1949-1978 made it further difficult to deploy theories which claimed a power asymmetry in favor of the West. The term “Occidentalism” became a
staple in studies which pushed back on the assumption that studies of
Sino-Western engagements should primarily be concerned with negative Western
stereotypes of China,
and urged instead that one should understand with equal rigor Chinese representations of the West, and parallel
versions of self-orientalization. Xiaomei Chen's Occidentalism was an early read that made me begin to rethink my own presumptions in this
In the process of writing Futility this issue of framing became increasingly central. I developed unease with the imperialism frame not simply because of its partiality in relating Sino-American relations in a descriptive sense, but also because its implicit normative judgment obscured what I came to see as most relevant aspect of my work. That being that overseas efforts to export American law had been key to undermining comparative law as a discipline in the US, and that this had decidedly negative consequences for any American ability to understand foreign law paired with a decided loss of the type of dynamic legal cosmopolitanism which had informed the Founders, so enamored with China as I mentioned in an earlier post.
I was fortunate to be writing Futility at a time when concern and study of the relationship of law to
US relations abroad was flourishing. The study of “American Empire” has been lively
throughout the 20th century, but there was a growing sophistication in its
intertwining with American domestic history and in attempts to compare modes of American engagement abroad with those of Europe. The focus of Amy Kaplan’s The Anarchy of Empire on literary sources pushed me to consider how the work of missionaries shaped popular
American culture. Julian Go’s Patterns of Empire forced me
to think through exactly why I thought establishing the particularity of the
American experience was so important, even as it advanced a very different
Legal historians have also now begun to write about “legal empire,” much of which cogently explores the legal contexts of the many territories over which the
exerted forms of sovereignty after the Spanish-American War of 1898. And the
frame of empire is understandable in these contexts. Military force was
involved and, like so many colonial enterprises, the humanitarian
rationalizations of conquest often masked bloody campaigns.
Most notable in this regard was the American occupation of the
which was as close to formal colonialism as would be undertaken by the US until the invasions of Iraq and Afghanistan in this century. Paul
Kramer’s aptly titled The Blood of Government detailed the continuities of the
occupation with European colonialism, and how the pretext of the civilizing
mission led to much savage colonialist violence. Leia Castañeda Anastacio’s
The Foundations of the Modern Philippine State is a powerful study of law under
this colonial regime. But she also relays how ineffective American
lawyers, in particular, were for implementing their mission of legal modernization–even
undermining the very democratic institutions they believed their legal work was
Still, this frame of empire seemed no better a fit than that of imperialism for my own study of Sino-American interactions. Often discrete engagements with
by the US are lumped together with these more identifiably colonial projects. The Boxer
Rebellion from 1899-1901 is the most common encounter which is tied to these other acts of military engagement. In brief, most of
these comparisons heavily obscure the domestic anti-imperialist debates
ongoing in the US and how they would move the American public to reject formal
colonialism, as well as elide the Qing government’s complex relationship to the
foreign interventions during the Rebellion. Especially in the context of China, forcing the frame of imperialism
or empire tends to completely wash out the complexity of such events in the US and remove
the diverse agencies and objectives of the Chinese actors involved.
Many of these tensions are productively explored by contrasting Futility with two recent books on Sino-Western legal history, Li Chen’s Chinese Law Through Imperial Eyes and Teemu Rukola’s Legal Orientalism. It is difficult to fully relate how much the work of these two scholars has impacted my own. For my purposes here, it is instructive to note the degree to which both scholars work to properly frame the encounter. For Chen, the traditional imperial aspirations of
at first seem to make imperialism a fitting frame, but the depth of his study reveals
how unstable and often counter-productive this frame is for even diagnosing
naked British self-interest. Ruskola is more confident in his Orientalist framing,
tellingly referring to American legal engagement with China at the
turn of the 20th century as “colonialism without colonies.” It would be too
much to tease out all the consonances and dissonances in the
approaches and aims of these books with Futility, but they are definitive reads if
one would want to find a position on this specific subject.
Overall, in the new writings on legal empire, some creep of anthropology’s critical presumptions about power have became normalized. My own work implicates US relations with
Japan and Germany
after World War II, engagements with Russia
both during and post the Soviet era, and projects in Brazil
As with China,
for all of these engagements the presumption that imperialism and empire best
help describe these interactions is hard to sustain. This is perhaps the most
provocative stance I have taken in my blog posts and given the restraints on
space I will have to leave it for now as simply that, a provocation.
But herein is the greatest personal difficulty in pushing against these frames. I have to admit that the intertwining of these frames with the normative condemnation they imply is not something I can simply criticize as an issue of precision of description. Following Said’s own motivations, there is a long and bloody history tied to representations of foreign legal systems across all of history, East/West or however otherwise dichotomized. It is very difficult to study American engagements abroad and not by struck by the literal body counts that often come with them. I do not know what else to say but this continues to be an issue I grapple with.
The argument I make in Futility is, following Elias, a transnational one, though one ultimately concerned with what American legal reform projects abroad meant at home. Truly understanding that dynamic is as important for understanding foreign engagements in their foreign contexts. And the interrelationship of the two are unlikely to neatly fit any one conceptual frame. It is in this spirit that I will offer my very different final post, "The Young Interdisciplinary Scholar in a Global Academic Market."