This post concludes our symposium on China and the Political Economy of the International Legal Order.
I first traveled to mainland China in 1993. For six weeks, I traversed the country on foot and by train, truck, and car. China was a much poorer, more isolated nation in those days. My travels took me to rural parts of China where residents had likely never seen a foreigner. Naturally, the locals were curious and filled with questions. “How much do you make each month?” was the most common question, but perhaps the question that I found most amusing and that has stuck with me 30 years later was one a truck driver asked me as my friends and I hitchhiked through western Gansu Province: “In America,” he began, “do you eat rice? Or do you eat noodles?”
The truck driver’s question reflected, one might say, “the epistemic position of the jurisdiction” in which the question arose. That was the first I’d heard of this north-south culinary divide within China: the north ate noodles, while the south ate rice. I imagined Americans categorized in the same way–New Yorkers subsisting on Lanzhou la mian, and North Carolinians partial to bowls of rice. The point is that the questioner was attempting to understand another jurisdiction (America) through the frameworks of his own. And as with many cross-cultural exchanges, the question perhaps revealed more about the questioner than it was likely to uncover about the subject of inquiry.
Those of us working in comparative law are loath to make the same mistake, but it can be difficult to avoid. For instance, the sense that liberal rule of law is constitutive of law itself undergirds perennial debates about China’s “turn against law” or “turn towards law” that have been central to American studies of Chinese law. As a political scientist once observed at a Chinese law conference in the US, “In political science, we are at least sure that China has politics! Legal scholars are not even sure if China has law!”
Such debates over Chinese law are hardly new. Teemu Ruskola’s Legal Orientalism documents how, in the 19th century, “lawlessness bec[a]me an axiom about Chineseness” and “the United States assumed[d] the mantle of law’s universal appeal.” These dichotomies also appear in broader historical arguments in the West, in thinkers ranging from Montesquieu to Hegel to Marx, over whether China is an undesirable “Oriental despotism” or a more positive “enlightened despotism.”
Assessing modern histories of international law, John Witt has described this phenomenon as “views from [within] the U.S. leviathan.” He argues that “U.S. scholars since at least the second World War have taken up the history of international law through a set of questions and presuppositions structured by a standpoint inside the leviathan.” In Witt’s assessment, it has taken a growing scholarly output from researchers in other parts of world to counter “the epistemic domination of the hegemon.” The risks of this too-narrow analytical lens are present in the study of Chinese law as well.
American scholars of Chinese law and legal institutions–producing work from a position of privilege and power–would surely agree that avoiding these sorts of analytical blind spots is desirable. But how to achieve that in practice?
In the limited space I have here, I’d like to suggest that empathy can play a useful role in the analytical toolkit. This is particularly true these days, as the field of China analysis increasingly includes people with less direct experience with China, and as global views of China turn increasingly negative.
Empathy, as I use the term here, is “the ability to share someone else’s feelings or experiences by imagining what it would be like to be in that person’s situation.” This is not so much a method as an analytical orientation–an openness to the idea that someone else’s reality might be configured in way that is different from your own but still legitimate. An empathetic orientation does not preclude critique, but it is a check against Orientalist perspectives that see different laws, institutions, and cultures as self-evidently inferior–lesser simply because they are different.
I use the word “empathy” advisedly, given the potential controversies raised by the term. Some may remember the political firestorm created by President Obama’s claim to seek a judge with judicial empathy to fill Justice Souter’s seat. Republicans equated empathy with “intellectual weakness, judicial immodesty, favoritism, bias, and grandiosity.” Others see empathy as a sort of conflict of interest and a sign of a willingness to “tell it like it isn’t.” For instance, in The Perfect Dictatorship: China in the 21st Century, Stein Ringen argues that many China scholars are reluctant to criticize China in order to preserve local relationships and maintain access. Worse, the idea that Asian-Americans within the U.S. will have excessive empathy for their ancestors’ country of origin has been the driving force behind discrimination, from World War II-era Japanese concentration camps to the State Department’s recent “assignment restriction” process that barred Congressman Andy Kim from working on Korean Peninsula issues when he was a State Department staffer. The Department of Justice’s now-defunct “China Initiative,” which “gained infamy for dubious investigations and abusive prosecutions,” arguably suffered from similar biases.
But these views mistake empathy for bias and the absence of empathy for objectivity. If anything, an empathetic orientation lends credibility to engagement with other cultures, legal or otherwise, because it can make presuppositions and biases more transparent. What’s more, an empathetic perspective in comparative law can urge us toward a more reflective examination of our own circumstances. Some examples can help to clarify what this might mean for legal scholarship.
I would count my colleague Maximo Langer’s seminal article on legal translations as an empathetic piece of comparative legal scholarship. It pushes back against the Americanization thesis in criminal procedure (i.e., that legal systems may come to mimic or resemble the American legal system) and shows how local actors do not simply “transplant” American legal practices, but instead “translate” and transform them to suit local dynamics. Translations may also occur due to “structural differences between American criminal procedure and the criminal procedures of the civil law tradition.”
In studies of China generally, Ching Kwan Lee’s book The Spectre of Global China arguably stands as an example of empathy in comparative (here sociological) studies, in that it recognizes at its core that both Chinese state-owned capital and Western corporate capital are forms of domination that express their power in different ways. Here, the critique is made stronger by the fact that it neither engages in “whataboutism” (a core element of Chinese Communist Party propaganda), nor critiques Chinese power in isolation from the reality of Western influence.
In studying Chinese climate change governance, an empathetic view might involve, for example, taking seriously Chinese arguments about historical and per capita emissions (still much less than in the US) and recognizing the role of developed country consumption in Chinese emissions, while concurrently critiquing China’s continued reliance on coal, its inefficient deployment of renewable energy resources, or the devastating global impacts wrought by the sheer volume of Chinese emissions. It might also consider how Chinese domestic decarbonization policies may lead to the export of emissions to other parts of the world–that is, domestic emissions reductions would be offset by growth in emissions elsewhere. These nuances make a normative assessment of China’s climate actions much more complicated than one might assume at first glance.
An empathetic view in comparative law does not dictate any particular outcome. Take, for example, the debate over the “China puzzle” in Chinese comparative legal studies (i.e., how China developed to such an extent without secure property rights). Various scholars have pushed back from different perspectives against a mainstream literature associated with the New Institutional Economics, which has been interpreted to hold that the strong protection of property rights is key to economic development. Don Clarke and Tom Ginsburg, for instance, take a functional equivalents approach, arguing that observers “overemphasize formal institutions at the expense of informal ones.” Shitong Qiao & Frank Upham, on the other hand, identify systematic destruction of property rights as a central component of Chinese development. Xiaoqian Hu takes yet another tack, arguing that scholars have overlooked the role of certain Chinese property laws, such as eminent domain and zoning, in spurring Chinese development, while also failing to recognize that early American development was built upon aggressive “state-led development” of public lands and denial of property rights protections to some segments of society, such as tribes and Indian lands. My purpose here is not to resolve these debates, but to highlight how these scholars–each in their own way–are taking what I would consider an empathetic approach to comparative analysis.
What draws these examples together under the heading of empathy is an openness to different possibilities in legal and non-legal ordering that does not take the necessity of formal Western legal institutions as a given. These analysts take seriously that different societies and cultures may have different preferences and approaches. In some instances, these scholars are going even further, using the insights from their comparative scholarship to reassess traditional views of their own jurisdictions.
Empathy is a value not typically discussed in comparative legal analysis, but it deserves attention, especially in our current political moment. The payoffs are, at minimum, a more complex understanding of our research subject, but also avoidance of the problems of political overreach and racial discrimination that arise out of a distorted analytical lens.
I am fairly certain I told that truck driver 30 years ago that rice and noodles were not so central to American cuisine as they were in China. He may have thought to himself, “Poor saps, can they even call that food?” Or instead, he may have gained some greater appreciation that out there in the wider world there were different means of nourishment that worked for other cultures, and that he might even want to try.