Critical Legal Orientalism: Rethinking the Comparative Discourse on Chinese Law

Critical legal Orientalism is a tale of two empires, the United States and China. In the mid-nineteenth century, the United States established a special U.S. court for China, thus incorporating China as the largest district of their jurisdiction. This extraterritorial court operated for about a century and advanced an American legal imperialism in China that continues today. It is an empire founded on the notion of China as a place where law actually does not exist because neither its subjects nor its state lives up to the rule of law. Such Western assumptions about China and its legal tradition are called “legal Orientalism.” Comparative legal scholarship has introduced this concept and erected a critique of U.S. law and foreign policy around it. In the Chinese reception, this Western self-criticism has taken a political turn. Here, legal Orientalism feeds into an imperial narrative, which is no less ambitious than its American counterpart for it allows discrediting concerns about Chinese legal practice as an Orientalist misreading. Rule of law criticism is thereby silenced, and this extends the space for what has been recently called China’s “New Era.” The concept of legal Orientalism, as we know it today, is not ready to address such a political turn of legal Orientalism. It has no understanding of its own critical position beyond a Western self-criticism. Therefore, this Article develops the outlines of a critical legal Orientalism. It argues that legal Orientalism will be a critical project of comparative scholarship only if it reflects on its own position; and this includes reflecting on its political, ethical, and normative implications. A critical legal Orientalism thus marks a discursive position that neither serves to reinvent self-righteous empires nor to silence ideas of justice in their names.