Legal Orientalism

I will try to make this short essay as perceptive as possible and I will try to avoid legal jargon. Legal jargon is thought to make a writer’s essay water-tight, however, I think this is a misperception, and such language should only be used when it is necessary to describe something accurately- with the right context, meaning and empirical reference. I do this because I do not want my reader to feel alienated by merely looking at the title. I think it is better to address the question: why am I tempted to write about ‘Legal Orientalism’?

Since colonization the West has convinced us of thinking that cultures which do not resemble “the West” are obsolete; and hence, do not deserve equal treatment. Consciously or unconsciously, we submit ourselves to the appeal of movies, media outlets, and literature, which share one thing: the identity and strength of the West. At the end of the day, we end up comparing one thing with the West and, perhaps, hastily generalize. Thus, we should be skeptical in what we see, read, listen and compare.

Orientalism came with colonization. During that era, the colonizer made itself so powerful that it deemed the colonized as illiterate, living in the dark and backward. For the colonizer, the only way to escape from this trap was to accept that the colonized was backward and for the colonized to submit to its autonomy. The colonizer used many techniques to this effect.

For example, they took one social dispute and compared their ways with the ways of the colonized to resolve it. They presented the dispute settlement mechanisms of the colonized as non-sense, which needs immediate rectification. In the mean time, text books were written to paint the picture of the colonizers’ power. They were distributed in schools; children were forced to learn it. Hence, the colonizer confined the way the colonized thinks culminating in Orientalism, i.e, a pre-established system that doesn’t correspond to the colonizer is uncivilized.

The above two paragraphs might give the reader a vantage point to understand Orientalism. Nevertheless, before discussing Legal Orientalism, it would be simpler to explain about Orientalism itself. In short, the renowned scholar in this field of study, Edward Said stated that “Orientalism is a discourse: a manifestation of power and knowledge.” The need to emphasize knowledge is because knowledge is always a matter of representation, and in turn, representation is a process of giving concrete form to ideological concepts, making certain signifiers stand for the signified.

Edward Said argued that without examining Orientalism as a discourse/statement, it is impossible to understand “the systematic discipline by which European culture was able to manage and produce the Orient (people who live in the East), politically, economically and socially.

Orientalism is a system of statements that can be made about colonies and colonial people about colonizing powers and about the relationship between the two, for example, when Africans adopted the feeling that Europeans are unemotional and rational. As a discourse and over time, Orientalism is given credit by academics, institutions and governments, and such authority raises the discourse to the level of high importance, namely the truth.

The main goal of Orientalism is to assert one’s power, identify oneself and strengthen one’s own identity by comparing the Orient (the East) and the Occident (the West). An integral part of Orientalism is the relationship of power between the Occident and the Orient in which the balance is weighted heavily in favor of the former, the Occident. Such power is connected with the construction of knowledge about the Orient. Edward Said forwarded that

The knowledge of the Orient created…within the discourse of Orientalism serves to construct an image of the Orient and the Orientals…subject to domination by the Occident.

The comparison of the East with the West ultimately ensures that the Oriental culture is given inferior status. One essential feature of the discourse of Orientalism is the objectification of both the East and the West. Such objectification entails the assumption that the Orient is essentially monolithic, with an unchanging history while the Occident is dynamic, with an active history.

All this comparison can be found in texts, which somehow, compel the East to produce the West as a site and a center of power. Legal texts can also produce Orientalism, which would lead me to deal with my main topic: Legal Orientalism.

LEGAL ORIENTALISM

Citing Teemu Ruskola’s article, “Legal Orientalism”, I would try to draw the attention of the reader to the main conflict between the East, mainly represented by China, and the West, mainly embodied by US. We all understand that the US aspires to dominate knowledge, research, media /print media, like books, magazines, news papers; social media and chat rooms, like Face book, Twitter; movies that present US as indomitable; and most importantly, language. / All of these things combined seek to assert the West’s power.

Especially, due to economic and political importance the West desires to put itself above the East, mainly China. To support its premise, often the West declares that “law doesn’t exist in China.” The point is usually a subtler one: whatever law China has known is a form that falls short of “real” law.  This view is implicit in the oft-stated claim that Chinese law has been historically exclusively penal and associated with criminal sanctions. Sometimes, the yardstick for “real” law is the existence of the rule of law, which in the liberal model of law, is deemed to place a constraint on a government.

Still the West attempts to present China as a lawless country, but why? Why is this view prevailing in popular opinion? Teemu Ruskola is of the view that this is based on legal Orientalism. In his article Teemu Ruskola begins his argument by quoting Hans-Georg Gadamer,a German philosopher in the 1960s best known for his Truth and Method, “history doesn’t belong to us; we belong to it.” Inevitably, Teemu Ruskola continues appealing to Gadamer’s quotation “our historical consciousness is always filled with a variety of voices in which the echo of the past is heard.”

The West, by comparing itself with the East, has been trying to claim victory, or assert its own identity, even though some of it is misconceived. By relying on functionalism, a practical tool used in comparative law analysis, the West undertakes to contrast the same legal problem that arises from social interaction, in the East and in the West.

Structurally, Orientalism as a discourse entails the projection onto the ‘Oriental Other’ of various sorts of practices that the East does not have. Given the law’s role in the constitution of national subjects, how does the American legal subject differ from his/her Chinese counterpart?

The American constitution and the rights it guarantees are simply part of what it means to identify as an American. Because of this they habitually invoke their rights as being derived from their Constitution. An American’s identification with the law remains extraordinarily strong. However, Chinese legal subjects aren’t accorded this privilege, which is a deprivation. In fact, they are deemed as ‘non-legal non-subjects’. Nevertheless, if this is the natural understanding of the American legal subject, then how does an Orientalist discourse perceive Chinese “non-legal non-subject?”

EUROPEAN AND AMERICAN LEGAL ORIETALISM

Teemu Ruskola alleges that legal Orientalism comes in many different ways, and classifies them as European legal Orientalism, American legal Orientalism and Self-Orientalism. He moves on to explain about the European legal Orientalism based on Hegel’s account of China “in his philosophy of history.” The classical legal Oriental text, Hegel’s book, puts forward Europe and Asia as the end and beginning of history, in history’s expedition.

In Hegel’s view, history’s end goal is freedom is the accomplishment of freedom. In contrast, China is the paradigmatic example of despotism. Despotism is in fact the natural form of government for the Chinese “for the mere reason that individuals exist as mere accidents”says Hegel as it can be read in Teemu Ruskola’s article. The despotism is the result of “confusion” between family and state. “The Chinese regard themselves as belonging to the family”, and obey the paternalistic behavior of the state. However, one needs to understand that this is no confusion- it is explicitly stated as a requirement of Confucianism.

Teemu Ruskola tries to analyze the implications of Hegel’s assertions. Contrasting the Chinese and the European system implies that Chinese lack proper distinction/which is Orientalism by itself/ between law and morality: moral dicta are expressed in the form of laws, but lacking subjectivity, the Chinese obey these laws merely external forces, like children who fear parental punishment. Not only Hegel but also Weber claims that Confucianism is a religion that worshipped the status quo - the hierarchy as superior and inferior - and thus historically impeded China’s passage into modernity.

Nevertheless, Ruskola tries to analyze Hegel’s and Weber’s account in terms of legal Orientalism. He says that the professed fact that China is timeless and static implies that the West isn’t. Second, ascribing to the Chinese lack of individual legal subjectivity and moral character suggests that Westerners don’t lack those progressive qualities. Third, observing the Chinese as confused establishes the European legal ordering as proper, enlightened and subtle.

The American legal Orientalism is more extreme than its European counterpart. Despite the difference in continent the denominator is the same: superiority of the West over all global powers, especially China. In the 19^th century, the anti-immigration law, which prohibited Chinese people from entering into the territory of the US views every aspect of Chinese life as an illustration of their backwardness “wearing white for mourning, purchasing coffins while still alive, dressing women in pants and men in skirts, shaking hands with oneself in greeting a friend…” as stated in Teemu Ruskola’s article.

Teemu Ruskola says that the 1878 report which says that

The Chinese are able to underbid the whites in every kind of labor… They can be managed and controlled like unthinking slaves. But our laborer has an individual life, which can’t be controlled by brutal masters.

Such a sentiment has driven a US judge to conclude that the law passed by the congress is rational because Chinese are “radically un-legal” that they were simply not capable of the kind of self-governance that was required by America’s “republican form of Government.”

SELF-ORIENTALISM

Inevitably, Western characterization of Chinese law affects the status of China and Chinese law in Western minds. By the same token, the Chinese have made an effort to bring in their views of the West, and alter their perception and misperception accordingly. Since the earliest Sino-European contacts, the Chinese have used the West for their own instrumental purposes, to confirm their own self-understandings of what it means to be Chinese. Today, the idea of Western superiority enjoys global currency, and it has resulted in Chinese legal and cultural responses that can best be described as self-Orientalism.

In a way, ‘self-Orientalism’ is Chinese’s aspiration to assert their identity over the West by comparing themselves with the West. Their own bias is based on rhetoric of China’s official Confucianism ideology, which preaches morality over law.  Take the example of the current financial crisis: the East has tried to create an image that distorts the West. Merely, China has sought to disprove the ideas of free market and capitalism. By contrasting the ideas of free market with their own ideology of socialism, they have endeavored to convey a message about the strength of Chinese socialism.