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.
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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.
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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. Gardner ’s
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.
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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.
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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 United States
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.
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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 China
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.
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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
and India .
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."