Working historically almost
always implies some sort of critical position on past scholarship. Hardly any
topic of investigation is fully novel, so new sources or new theories of
interpretation are brought to bear on old sources or old theories of interpretation
to advance the state of knowledge in one’s respective field. In the context of
transnational and comparative legal history, this is almost a given as past
scholarship is often presented as an active enabler of colonialism, imperialism
and all manner of undesirable cross-cultural practices.
In my own work on China , I
routinely feel this pull as I trace back misconceptions about Chinese law in
American legal culture through different eras. Perhaps no better example is the
long-standing impact of Max Weber’s characterizations of Chinese law as developed
in his four-fold typology of legal ideal types. The academic and popular life
of Weber’s use of Chinese law, parallel to his use of Islamic law, grew out of
its redeployment in negative normative contrasts with Western law (even though
Weber’s critique of the common law is generally elided in the process). In
particular, Talcott Parson’s embedding of his interpretation of Weber in
modernization theory helped normalize many of these pernicious characterizations,
which have achieved near hegemonic status in legal studies.
This may seem odd as a way of
opening a post on the globalizing market for young academics. But I am
motivated to do so because much advice regarding new opportunities for teaching
beyond one’s home country is so focused on entry-level hiring. This is
understandable for numerous reasons. The intense competition for scarce academic
position induces a now well-recognized anxiety for most graduate students
throughout their training. And as someone who made the leap to securing my
first full-time teaching post abroad, I often get very detailed questions about
how to engage the emerging market for international legal teaching from those
facing these anxieties.
I am generally happy to do so
with the caveat that as increasingly common it is for US-trained legal academics
to teach abroad, most experiences are still fairly singular. A quick comparison
of the internet resources for the entry-level hiring markets in economics and
law reveals a wide-gulf in expectations. There are both demand and supply
reasons for the late-coming US
participation in the international legal market, many of which anyone who works
in comparative or transnational law understands well.
But I preface this post with
comments on Weber with the same objective as when I carry out conversations
about how to access the international legal academic market(s). For all my
criticism of Weber’s comparative legal sociology, much of which has been twisted
beyond his own intentions, I generally consider Weber an inspiration, and
singularly brilliant. When I teach socio-legal courses, I always try to relay
to students how pioneering and innovative Weber’s work was in founding modern
social science and legal sociology specifically.
But in the realm of comparison,
for his work on both economics and religion, Weber was limited by the
possibilities of his era. He could not flick a switch and encounter Chinese legal
discourse in real-time, nor was he likely to have Chinese interlocutors at the
conferences he attended. More concretely, the material sources on Chinese law
that he had access to were filtered through the decisively Sinophobic turn that
had afflicted European studies of China in the 19th century.
To his credit, his use of comparative examples in his legal sociology was aimed at better explaining Europe than it was to
specifically diagnose foreign developments. In fact, when I read Weber’s opus Economy and Society, I am still struck by the industry required to produce such an interdisciplinary
and synthetic work in an age with quite different informational technologies readily available. If Weber were alive today, I have little reservation that his
depictions of foreign law would not mirror those he produced almost a century
past.
It is with this sentiment that I try to portray the value of academic participation in the international world, especially for American legal academics. Yes, a central critique I develop in Futility is of the place and form of comparative analysis in
It is one of the side-effects of
the particular way in which American comparative law was reconstituted in the
mid-20th century that an almost disciplinary split was presumed between
domestic and comparative approaches. This is again one of the pernicious
developments I explain and critique in Futility,
in large part because it went against the productive traditions of American comparative
law of earlier eras. More directly, the idea that if one is a contracts
scholar, even a historian of American contract law, then one has little to gain
from engagement with the international contracts community—even that of the
common law world—is a tragedy.
It might seem easy to say for
someone who works comparatively in history and my other interests. I do attend
conferences and share my work with other comparatively oriented scholars. Yet,
many of the productive relationships I have developed are with those who are
simply interested in learning critically about American law and the American
legal experience. When Futility turned
its transnational focus towards the US , I was worried that my Chinese
interlocutors would be less interested in the project, but, in fact, they
became more interested. After Futility was
published, I have been fortunate to present it in all sorts of foreign settings
where the reactions and criticisms have often been unexpected and thoroughly stimulating.
I would hold out that regardless
of one’s interests, doctrinally or otherwise, similar longitudinal opportunities exist abroad for your work. One of the unearned privileges of
being an American legal academic is that knowledge of American law is far
higher abroad than is commonly reciprocally true. If you are studying 19th
century American family law, you would be surprised how many foreign scholars
are doing the same, or want to integrate their work into a transnational 19th
century family law story. Moreover, they are likely to participate in
externally funded collaborative research projects far more common outside the US , and eager
for American participants (beyond the missionary mold). And you are very likely to have foreign citizens
studying in your law school who are eager to introduce you to their home academic
worlds. I take great pleasure from that
fact that a large part of my life teaching in Brazil has been connecting scholars
with common interests from any number of national settings, and also being asked to participate in conferences on a wide rage of subjects where a comparative American frame was thought valuable.
In many ways, this post is addressed to those who don’t consider themselves to be transnational or comparative
legal historians or scholars. You might think that there are few likely returns
from applying for spots at foreign conferences, or submitting your articles to
foreign journals. And you might think that the further step of applying for postdocs,
or even a teaching position, abroad is implausible given your domestic focus.
But I would urge you to reconsider, not just for your own long-term
self-interest but for the long-term health of American legal academic culture.
That being said, it takes a
decided bit more work to operate professionally abroad than simply
participating in the international academic world. Teaching as an expat varies
significantly from places where it is completely normalized, to places where is
still exceptional. Traditionally, possessing solely a JD was a prohibitive
barrier to teaching abroad—and still is in many countries. But this is changing
as foreign institutions become more familiar with American candidates, and
newer schools proactively look for American talent. There are decided
differences and obstacles in deciphering a new academic culture, not even taking into consideration
the basic challenges of living abroad. Yet, you may be surprised how many have
tread the path before and are willing to help you navigate such
opportunities.
On a logistical basis, there are
different places and patterns by which such opportunities are announced and applied
for. There are also very different valuations of academic accomplishment for
young scholars abroad, of which American legal academia is likely the argest outlier with its mix of professional and scholarly expectations. It is an arena
where many of your mentors may have little practical advice or experience, or
are reticent to encourage you to undertake a still unusual career move. And all
of this is compounded by the very real limitations that personal and familial
commitments play in restricting one’s geographic mobility. There is no more
recurrent issue among expat academics around the world then the difficulty of synchronizing
partner/spousal careers.
At a conference a few years back,
another international legal historian and I both commented that we realized our self-perceptions might be out of line with the objective fact that were by some measures no longer be “junior scholars.” We also remarked that our feeling that
our careers were still very much in the process of becoming was in large part
because they had unfolded in ways unexpected by our younger selves. I certainly
had no expectation that I would be teaching in Brazil , or now diving deep into
developing relationships with German scholars. And my accomplished friend was
balancing the complicated push of pull of his own transnational career. But we
both agreed that we couldn’t have imagined it now any other way.
As I argued in an earlier post,
there is much more to cosmopolitanism than a set of complex flight itineraries.
But in contrast to the relative restraints of Weber’s era, the cosmopolitan
academic life is far more accessible than it ever has been before. No matter
your interest, I encourage you to engage with the global world as much as you
can. And to whatever extent it may be of use, feel free to contact me with any
questions.
