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) |
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
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 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) |
