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Comparative law is haunted by the perceived need to avoid Orientalism: a type of analysis that postulates a dichotomy between the object of study and “the West,” finds the object lacking in certain essential qualities (or even having the opposite qualities of those the analyst deems essential), and then declares the object to be inferior. Yet a desire to avoid the errors of an Orientalist exaggeration and condemnation of difference all too often leads to an a priori denial of fundamental difference before the inquiry has even begun. The political imperative of anti-Orientalism takes precedence over all.
This Article makes three arguments. First, it argues that there exists in comparative law scholarship in general, and in Chinese law scholarship in particular, a kind of anti-Orientalist discourse that needs to be critiqued because its very methodology makes it impossible to think certain thoughts and reach certain conclusions, regardless of the data. While I do not propose to rehabilitate Orientalism, I do maintain that it is time to move beyond anti-Orientalism. Second, it argues that data about what is conventionally called the Chinese legal system mean we have to seriously entertain the possibility that it is misleading to use the conventional language of Western jurisprudence (courts, judges, laws, rights) to talk about it, and not simply dismiss arguments to that effect as Orientalist or ethnocentric. Third, it argues that how we characterize China’s putatively legal order matters. China’s increasing integration into the global economy means that American institutions will increasingly have to deal with the products of that legal order. Questions about its fundamental nature can no longer be avoided.
While the Article uses China as an example, its methodological point and conclusions apply more broadly to the analysis of any putative legal system. We should not derogate difference just because it is different, but we should not be biased against finding difference in the first place.
