Anti Anti-Orientalism or Is Chinese Law Different

ANTI ANTI-ORIENTALISM, OR IS CHINESE LAW DIFFERENT?, 68 Am. J. Comp. L.
55
68 Am. J. Comp. L. 55
American Journal of Comparative Law

Spring, 2020
Article
Donald Clarkea1
Copyright © 2020 by the American Society of Comparative Law, Inc.; Donald Clarke
*55 ANTI ANTI-ORIENTALISM, OR IS CHINESE LAW DIFFERENT?d1

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 *56 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.
The question for the comparative method is “when are two things the same thing?”
--Paul Bohannan1
[T]he function of the imagination is not to make strange things settled, so much as to make settled things strange.
--G.K. Chesterton2
Introduction
A specter is haunting comparative law--the specter of Orientalism. All the powers of the academy have entered into a holy
alliance to exorcise this specter: law reviews and publishers,3 learned societies and law schools,4 administrators and professors.5
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1

ANTI ANTI-ORIENTALISM, OR IS CHINESE LAW DIFFERENT?, 68 Am. J. Comp. L. 55
So reads (with a few changes) the first sentence of the Communist Manifesto.6 Marx and Engels went on to write: “Where
is the party in opposition that has not been decried as communistic by its opponents in power? Where is the opposition that
has not hurled back the branding reproach of communism, against the more advanced opposition parties, as well as against
its reactionary adversaries?”7 In the same way, “Orientalism” has become in academic discourse what “communism” was in
Marx's day, and what “judicial activism” perhaps is today in American political discourse: a position unanimously denounced
that no respectable person admits to subscribing to, but that everyone is eager to attribute to those who disagree with them.8
As the term has become weaponized, it has grown so capacious and open to interpretation that opponents in debates can easily
hurl the charge at each other. Richard Falk, for example, labels as “Orientalist” the “one-sided ... reaction to [Salman] Rushdie's
plight in the liberal West” *57 on the grounds that it involved a “negative stereotyping” of Islam.9 But a critic turns the charge
back on Falk himself, stating that “his own vision of Islamic culture as a monolithic, static entity, incapable of accommodating
rights and freedoms, incorporates Orientalist stereotypes.”10
While it is unfortunate that “Orientalist” has been degraded through promiscuous attribution into simply a term of abuse,
the failings of Orientalism that led to the anti-Orientalist backlash are clear enough. What are less clear are the failings of
anti-Orientalism itself.
This Article makes two 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 and that it needs to be criticized--or as its practitioners might
say, “interrogated”--because its very methodology makes it impossible to think certain thoughts and reach certain conclusions,
regardless of the data. While it is no doubt an Orientalist sin to exoticize the ordinary, it is also a mistake not to recognize the
possibility that some things might actually be exotic. An approach that dismisses all exoticization necessarily blinds itself to
those aspects of human thought and experience that are truly different from those familiar to the investigator.
Second, the Article 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 to talk about it, and not
simply dismiss arguments to that effect as Orientalist or ethnocentric.11
Moreover, I take as fundamental the proposition that we cannot appeal to conventional translations of Chinese terms as evidence
that some Chinese institution translated as X is more or less like the American institution whose English name is X. This should
not be controversial.12 Conventional translations can be very misleading: for example, the U.S. Department of State's name is
commonly translated into Chinese as “Guowu Yuan” (<<foreign language>>), the Chinese name for *58 a Chinese government
body conventionally translated as the “State Council.” But the State Council is not equivalent to a U.S. cabinet department or a
U.K. cabinet ministry. It is instead a body that sits atop all government ministries. Thus, Chinese could be forgiven for thinking
that the Secretary of State, the head of this American “State Council,” was superior in rank to all the other U.S. cabinet chiefs,
a misunderstanding that the State Department has not been overly zealous in correcting.13
I call my position “anti anti-Orientalism” in a conscious parallel to a 1984 article by Clifford Geertz entitled “Anti Anti-
Relativism”14 because two of Geertz's points apply here as well. First, just as Geertz said that in fact there were not really
many true relativists around, it is probably also true that at least in the world of Chinese legal scholarship, there are not many
true Orientalists around, although one can still see commentary that perhaps reflects this approach. Second, to be against
anti-Orientalism is not to be in favor of Orientalism. This Article critiques some anti-Orientalist approaches, but not in order
to rehabilitate Orientalism.
An examination of anti-Orientalism in the field of Chinese law studies is particularly necessary because studies of Chinese
law in the non-Chinese world cannot really avoid being comparative--the legal system with which the author is most familiar,
whether in its idealized or actual form, lurks in the background as an explicit or implicit comparand. And although the specific

topics of scholarly research have varied widely, as befits a society with a rich and well-documented past and an economically
important present, present behind almost all of them has been the question of how we should think about what is conventionally
called the Chinese legal system. Is it fundamentally similar to legal systems we are familiar with (for example, the American
one), albeit with some major differences, or is it fundamentally different, albeit with some surface similarities? As *59 Ludwig
Wittgenstein once remarked, “Hegel seems to me to be always wanting to say that things which look different are really the
same. Whereas my interest is in showing that things which look the same are really different.”15 He could have been talking
about these two approaches to the study of Chinese law.
It is difficult to avoid predetermining the answer by the very terms of the question; in stipulating that we are studying the
Chinese version of institution X, it becomes impossible, or at least very difficult, to conclude that the differences outweigh the
similarities, because if they did, why did we label it the Chinese version of X in the first place and not the Chinese version
of Y, or perhaps a Chinese institution with no counterpart in our own society? The whole point of applying the same name to
things is to make the claim that they are fundamentally similar. We do not call basketball hockey, and we do not confuse a
wedding with a criminal trial. Because what legal scholars study in China is conventionally labeled the Chinese legal system, it
becomes impossible to find that the system we are studying is not a legal system; that conclusion is foreclosed by the label we
applied before we even began the research. Yet attempts to question whether the categories and concepts of English-language
jurisprudence can be usefully applied to China are often criticized as Orientalist.
Part I provides an account of Orientalism and what I call anti-Orientalism. Part II discusses some characteristic flaws in anti-
Orientalist approaches. Part III looks at various aspects of what I call the Chinese “order system” in order to argue that there
is at least a prima facie case to be made that the anti-Orientalist approach blinds us to some important and interesting features
of that system. A conclusion follows.
I. Orientalism And Anti-Orientalism
By “Orientalism” I mean the term as developed by Edward Said in his influential work of the same name.16 For Said, Orientalism
is a set of discourses and approaches structuring Western understandings of the East. (Indeed, the very opposition of “West”
and “East” is itself something of an Orientalist construct.) It operates first by defining the East (or the Orient) and the West
in opposition to each other. Without an ideology of what the Orient is, there is no counter-ideology of what the West is, and
without the West, there is no Orient.
Having defined a counter-entity to the West, Orientalism views the Orient as a passive object of knowledge; citizens and residents
of the West are the active knowers and explicators of the East. Orientalism then engages in a series of comparisons, in which
cultural diversity *60 in both the West and the East is flattened, and the Orient is almost always found wanting--at least by
the implicit or explicit standard of value of the observer. Thus we see the common tropes of the East as emotional, the West
as rational; the East as despotic, the West as democratic; the East as collectivist, the West as individualistic. Even the weather
cannot escape this stereotyping: in the East it is hot and debilitating, in the West it is cool and bracing.17
A variation on the West-as-active, East-as-passive approach is to analyze the East not in terms of what it has, but in terms of
what it lacks; to say not what it is, but what it is not.18 Such an approach is not necessarily pernicious or misguided, and might
well be correct for a particular purpose. It is necessary and useful for NASA to know that Mars lacks oxygen in its atmosphere.
But NASA does not devote billions of dollars to finding out simply what Mars lacks. It tries to find out what Mars has. Similarly,
one may reasonably attach the suspicion of Orientalism to an approach to a society that focuses overwhelmingly on what it lacks
as opposed to what it has, especially when the things it allegedly lacks are institutions considered valuable by the analyst.19
Although the “Orient” of Said's analysis was primarily the Near and Middle East--prime territories for European colonialism
and therefore a prime subject of Orientalist analyses--there is no reason that his analysis and critique cannot be extended to

Western images of East Asia, and of China in particular. While those images have changed over time,20 they have often, whether
favorable or unfavorable, been imaginary, reflecting China as a not-Europe in order to make some point about Europe. Leibniz,
for example, viewed Chinese *61 characters as a blueprint for his ideal script, which would be utterly divorced from phonetics:
This sort of plan would at the same time yield a sort of universal script, which would have the advantages of the
Chinese script, for each person would understand it in his own language, but which would infinitely surpass the
Chinese, in that it would be teachable in a few weeks, having characters perfectly linked according to the order and
connection of things, whereas, since Chinese script has an infinite number of characters according to the variety
of things, it takes the Chinese a lifetime to learn their script adequately.21
As Derrida remarks, this concept of Chinese writing “functioned as a sort of European hallucination.” And this hallucination
was not simply ignorance; it was almost a willed misunderstanding. “It was not disturbed by the knowledge of Chinese script,
limited but real, which was then available.”22
Nor is this kind of analysis unknown today. Dissatisfied with the prescriptions of the Washington Consensus,23 Joshua Cooper
Ramo in 2004 published a well-known essay entitled The Beijing Consensus, in which he presented the Chinese developmental
model as one marked by “equitable, peaceful high-quality growth,” “a ruthless willingness to innovate and experiment,”
“look[ing] beyond measures like per-capita GDP and focus[ing on] ... sustainability and equality,” and “a shift from power
politics to moral politics.”24 It is hard to see this description of China as anything but imaginary;25 it is clearly Ramo's
idealization of a not-West.
*62 Prior to the Enlightenment, the European attitude toward China was generally positive. The China described in Marco
Polo's account of about 1300 C.E.26 had impressed Europeans. In the early seventeenth century Matteo Ricci reported that
“China is superior to other countries in administration, politics and order,”27 and in 1687, a team of admiring fellow Jesuits
published an annotated Latin translation of three of the Four Books in Confucius Sinarum Philosophus (“Confucius, the
Philosopher of the Chinese”). During the Enlightenment itself, Voltaire's esteem is well known,28 and no less than Leibniz
declared that China “surpasses us, refined as we hold ourselves to be, in the rules of an even more cultivated life.”29
But by the nineteenth century China and its civilization had become for many an object of ridicule, contempt, and sometimes
even fear. It is not difficult to find many examples of exaggeration and caricature, both of China and of its putative opposite,
the West. An 1857 cartoon from the British magazine Punch30 shows contemporary attitudes succinctly: the Chinese are not
only morally depraved destroyers of women and children, but they are short, ugly, and bandy legged to boot, in contrast to the
tall, stern, and erect white man about to employ a cat o' nine tails.31
Nor is contemporary discourse about China free from analyses that have at least an Orientalist flavor. In his book Order and
Discipline in China,32 Thomas Stephens draws an opposition between what he calls the disciplinary order of China and the
adjudicative order of the West. He describes the handling of disputes in traditional China thus:
*63 In the society of traditional China, where concepts of harmony prevailed, disputes were resolved and
disturbances of harmony corrected (ideally within the immediate group where they arose) by relating them to
the personalities, the exigencies, and the surrounding circumstances of the particular case, with a view to the
instruction of the parties in the conduct expected of them, and the punishment of those disturbing harmony.33

This is not on its face an implausible or particularly offensive description. But consider his contrasting description of the handling
of disputes in the West:
In Western society ... disputes are resolved and breaches of order are corrected by measuring them against rigid,
universal codes of imperatives external to the parties, in an adjudication. This adjudication is conducted by an
authority equally subject to the codes, independent of each of the parties, and not committed to the interests of one
more than the other, and regardless of the consequences to the existing social or political order and the policies
of its rulers.34
Nobody with the least acquaintance with the judicial systems of actually existing Western countries would recognize this
idealized description of dispute resolution.35 Yet I doubt Stephens was consciously intending to mislead: his book was originally
his doctoral thesis at the University of Washington School of Law and was not intended for a naive audience. But he seems
to have fallen into the Orientalist trap of using China and the West as foils for an oversimplified description of each. China
becomes the not-West, and the West becomes not-China. A sympathetic interpretation would say that Stephens has misdescribed
the West in order to clarify the differences presented by China. A less sympathetic interpretation would say that Stephens has
exaggerated the differences presented by China in order to present a self-congratulatory picture of the West.
*64 At its worst, then, Orientalism consists of an unappetizing stew of racism, cultural arrogance, ignorance, intellectual
laziness, and factual error. It got the counterattack it deserved in Said's book, which not only named the phenomenon but
exposed its shortcomings.36 The work of Said and subsequent scholars that attempts to expose and critique real or perceived
Orientalism in spheres such as academia, the media, politics, and popular culture--indeed, anywhere it is found--is what I call
anti-Orientalism.
II. How Does Anti-Orientalism Operate?
Anti-Orientalism is now comfortably mainstream; it is safe to say that nobody admits to being an Orientalist. Despite this
victory in discourse, anti-Orientalism views the battle against Orientalism as urgent and ongoing--perhaps with some justice.
(The absence of admitted Orientalism no more proves its actual absence than the absence of admitted racism proves the absence
of racism.) Thus, the critique of Orientalism continues in books,37 articles,38 and symposium volumes.39
Unfortunately, anti-Orientalism also has its own characteristic problems. Not all of these, of course, are present in every anti-
Orientalist analysis. But certain characteristic moves and modes of argumentation can be identified and critiqued.
A. The Denial of Difference
The essential mode of anti-Orientalist argument is the denial of difference. By this I mean not the denial of any difference,
but rather the denial of fundamental difference: the kind of difference that would mean that two things being compared could
not be labeled by the same name, since an identical name necessarily involves a claim to fundamental similarity. Where the
Western Orientalist denies the existence of institution X or Y in the non-Western society in question, the anti-Orientalist responds
by insisting that the definition of X or Y must be made capacious enough to include some institution that does exist in the
non-Western society. Failure to expand the definition is not only a mistake, it is a sin. By defining or redefining concepts,
anti-Orientalism seeks to make the notion of a non-Western society without X or Y literally unthinkable.
*65 In denying difference, anti-Orientalism seems to partake of what the anthropologist Paul Bohannan has called “the
questionable doctrine of the psychic unity of mankind ... a lurking hypothesis that the same phenomena everywhere develop in
the same manner, represent the same thing, and have the same meaning.”40 To be fair, the anti-Orientalist would vehemently

deny this, and insist that they hold the opposite view. Anti-Orientalism is full of celebrations of difference. Yet while the anti-
Orientalist may seem to admit the existence of fundamental differences in, say, legal systems, they will at the same time implicitly
or explicitly deny that the differences are really fundamental--that is, so fundamental that the institutions being compared should
not even be characterized by the same word.
This paradox permeates anti-Orientalism. It is a fundamental tenet of anti-Orientalism that “[t]he difference of cultures cannot
be something that can be accommodated within a universalist framework.”41 For law, this means that “there is no cross-cultural
standard that would help us arrive at a final definition of ‘law”’42 and that “[g]iven ... the intransigence of irreducible difference,
any notion of ‘universal law’ is indeed a contradiction in terms.”43 But at the same time, in order to refute putatively Orientalist
claims of X-lessness, one must insist on a concept of X that will result in X being found in many very different societies and
cultures--in short, in the case of law, a notion of universal law. We must, in Ruskola's words, stop insisting that “‘real’ law is
a Western notion.”44 As Pierre Legrand writes,
[O]ne of the basic concerns informing any comparative endeavour is precisely to avoid the projection of one's
own analytic categories unto another law in order then to pass judgment on that other law from one's vantage--
which, predictably, is unlikely to lead to a favourable view of the alternative model.45
Nobody could quarrel with this goal, but it necessarily involves finding that there is something there that can justifiably be
called “that other law.”
As Legrand's concern about an unfavorable view makes clear, the motivation behind this denial is a critique of Orientalism
and ethnocentrism; again in Bohannan's words, “[t]he ‘psychic unity of mankind’ as an idea did not die--it merely took refuge
in the creed of liberalism.”46
*66 The anti-Orientalist critique (as applied, for example, to China) goes along the following lines:
(1) You (the allegedly Orientalist commentator) want to make China into (a) an Other that is (b) inferior.
(2) To do this, you take some valuable and treasured institution in your own society and define it very narrowly
such that only your own society could have it.
(3) You then look for it in China, find it missing (no surprises there, since it has been defined such that it could
not exist in China), and condemn China.
The problem with this critique is that although it stems from a laudable desire to free oneself from the culturally contingent
categories of modern Western culture, in fact it does just the opposite. Instead of appropriately provincializing such English-
language concepts as “law” and “rights” as they are used today in the English-speaking world, the same way we would
unhesitatingly provincialize the concept of, say, a haiku, it insists that such concepts can be meaningfully used in any society
today (and, presumably, in the past), and that those who say they cannot have simply mis-defined the concepts. Moreover, the
insistence on the universal applicability of the concept typically comes not as a conclusion to analysis based on observations,
but as a premise based on the idea that anything else is, well, just unacceptable.

Take, for example, Mirjan Damas̆ka's book The Faces of Justice and State Authority.47 In it, the author adjusts his definition
of law precisely in order to be able to accommodate China--indeed, Maoist China--within it, writing that a definition of law
that excludes China “is clearly too narrow for those groping toward a legal language common to mankind in the late twentieth
century.”48 But just as the Orientalists define their terms narrowly in order to be able to exclude the Other, here Damas̆ka quite
consciously defines his term broadly in order to be able to include the Other and thereby render it not-Other. Of course China
has a legal system; we have just defined “legal system” in a way consciously designed to include China.
The problem is that none of this really helps us to understand the Chinese legal system; it is minimally informed by observations
about what China is actually like. To the anti-Orientalist, this is not a problem, of course, because the purpose of defining a term
is not to tell us about the phenomenon to which the term is to be applied; it is to be able to include a desired set of phenomena
within its ambit. Damas̆ka starts from the premise that there must be a language properly called *67 “legal”--and not, for
example, religious or political or what have you--that can apply to all of mankind. If you start from that premise, then of course
you have to define “legal” such that it will include the institutions of all mankind. But like a gas expanding into an infinite
volume and thereby losing all the qualities that made it identifiable as a gas, an adjective such as “legal,” once stretched to cover
everything, loses the quality that made it useful and informative as an adjective in the first place.
In another example, Teemu Ruskola is willing to assert that there is a vast distance between Chinese political and legal ideals
and those of the West: he writes that China's political self-understanding, far from being based on a rule of law ideal (however
compromised in practice), was in fact premised on the exact opposite: the ideal of the rule of man, “a kind of moral utopia where
those in power derive their authority to govern from their superior virtue.”49 Indeed, according to Ruskola the very subject of
the legal system was fundamentally different: contrary to the individual orientation of Western law, “in the Confucian view the
collective is morally prior to the individual,” and hence “for traditional Chinese law collective legal personality was a given.”50
Yet despite these fundamental differences, Ruskola nevertheless feels able to assert (in an earlier work) that “whatever the
differences between Chinese and American law may be, they are matters of degree only.”51
Ruskola is too sophisticated a scholar not to know that the answer to the question of whether China has law simply depends on
the observer's definition, with the answer “always already embedded in the premises of the questioner.”52 But he nevertheless
feels compelled to make his statement denying qualitative differences, even though the statement must by definition be true: if
the differences went beyond differences of degree, he would not use “law” to describe both sets of institutions. The statement
is identical in logical structure to that of the legal anthropologist Max Gluckman when, speaking of an African society called
the Lozi, he said that “the Lozi judicial process corresponds with, more than it differs from, the judicial process in Western
society.”53 The tart response of fellow anthropologist Paul Bohannan: “Of course it does, or Gluckman could not have defined
it as judicial.”54
Thus, Ruskola's own conclusion is also embedded in his premise. The only way to make sense of this apparent contradiction--
that is, the contradiction between noting the pointlessness of a particular *68 type of statement and then making it anyway--
is to conclude that Ruskola sees it as desirable in itself to have a definition of “law” that includes China.55
Next, let us look at Janet Ainsworth's anti-Orientalist critique of Jerome Cohen's writing on the Chinese constitution. In her
article Interpreting Sacred Texts, she writes: “Professor Cohen appears to acknowledge the ethnocentrism inherent in defining
‘authentic constitutions' as those patterned on the model of Western liberal constitutions, but he nonetheless ultimately concludes
that the Chinese constitutions are defective for failing to satisfy Western constitutional criteria.”56
I should note that I think it is fairer to read Cohen as pointing out difference, not defects, and he does not in fact use the term
“authentic constitutions,” as readers might be misled into thinking by Ainsworth's use of quotation marks. Instead, he says, “a
People's Republic of China constitution is not what the western liberal tradition would call a constitution.”57 And he defines

what he means by that. It is hard to see what is objectionable here. He does not insist that his is the only possible definition
of a constitution, and indeed seems to go out of his way to avoid imposing a single definition on the term. Nor can one find a
judgment that Chinese constitutions are “defective” for failing to satisfy Western constitutional criteria.
I am more interested, however, in what Ainsworth does after offering this critique of Cohen's definition of a constitution. To
her credit, she offers her own: “a specific type of written text ... a political text which is both foundational and generative of
subsequent juridical discourse.”58 But there are several problems here. First, she does not explain why her definition is any less
ethnocentric than Cohen's. Second, she does not explain why her definition is a better definition, measured against any standard,
than Cohen's. (A.V. Dicey, author of the famed Introduction to the Study of the Law of the Constitution, would be surprised to
find the United Kingdom excluded.) And, third, although she clearly intends by her definition to bring within its ambit both the
American Constitution and the Chinese document known as the xianfa (<<foreign language>>), conventionally translated as
“constitution,” it ironically appears that she has failed to ask herself whether the Chinese xianfa meets her own criteria.
*69 Think about it: the Chinese xianfa generates very little in the way of juridical discourse (it cannot be used as a basis for
decisions by Chinese courts), and can hardly be described as foundational. At the time of its promulgation in 1954, many Party
officials resented the time they were required to devote to study sessions because they perceived it to be superfluous.59 And
just a few years later, in 1958, Mao Zedong remarked that although he had participated in the drafting, he had no idea what
it said.60 This is not a statement one can readily imagine issuing from the mouth of Hamilton, Madison, or Washington. But
when faced with a set of texts that at least arguably are foundational and generative of juridical discourse-- that is to say, the
Confucian canon before the fall of the Qing Dynasty in 1911--Ainsworth dismisses them without argument, saying simply that
they “were not, of course, a constitution.”61
In short, what we see here is what we see in the other examples: the attempt to define a term with reference not to the needs of a
particular intellectual inquiry, but rather to the needs of a particular anti-Orientalist or anti-ethnocentric project, a project that is
essentially political (or at least not scholarly) in that it is just not very interested in data even as defined by its own parameters.
No matter what, the analyst has just got to find that China has a constitution, even if it is a document that turns out to meet
neither the alleged Orientalist's criteria nor the analyst's own.
Along similar lines is Taisu Zhang's more recent critique of Zhu Suli's account of Chinese constitutionalism.62 According to
Zhang, *70 Zhu argues that China, contrary to common perceptions, in fact has a rich constitutional history. Zhu accomplishes
this by rejecting what he deems an overly narrow definition of “constitution” and expands it by appealing to the original meaning
of the word: “the act of ‘constituting’ the state through legal and political documents and defining its fundamental functions.”63
But not even this expanded definition can save Zhu from Zhang's critique of Eurocentrism: “Ironically, by looking at Western
European constitutional history, and redefining the term within his interpretation of this European, and particularly English,
historical context, ... in the end, the book leaps from one ‘Eurocentric’ constitutional paradigm to another.”64 Unlike Ainsworth,
Zhang does not offer his own definition of “constitution,” and so it is impossible to assess whether he can meet the challenge of
supplying a non-Eurocentric definition of “constitution.” But his critique seems to rely on the unspoken premise that it is possible
and meaningful to come up with a supra-linguistic, supra-cultural definition of “constitution” that is useful for something other
than simply proving the fact it was tailored to prove.
A number of Chinese commentators on Ruskola's book Legal Orientalism65 object to Orientalist failures to acknowledge
Chinese *71 law as “law,”66 but at the same time seem to agree that what is conventionally called the Chinese “legal system,”
whether historically or now, is fundamentally different from Western legal systems and that concepts appropriate to the latter
are not necessarily useful in thinking about the former. Zheng Ge, for example, states that a number of Chinese legal scholars
are alienated from their own system, and once they depart from concepts rooted in the Western liberal tradition, such as “rights”
and “freedom,” have nothing to say.67 He believes that China and the United States have quite different legal systems.68 Liang
Zhiping writes that the simple binary opposition of “lawful” and “lawless” is inadequate to cover China's complex social reality;

a broad swathe of activities are better labeled “unlegal” (bufa de, <<foreign language>>), “nonlegal” (fei guan falü de, <<foreign
language>>), or “extralegal” (chaochu falü de, <<foreign language>>), and it is a mistake to see these categories as minor
exceptions of no theoretical significance.69 Discussing Imperial China, *72 Cheng Jinhua expresses doubts as to “whether
this ‘law’ accords with the definition of the Western or American standard, whether it accords with ‘modern law’ ....”70
The failure to make implicit definitions explicit makes possible anti-Orientalism's simultaneous embrace and denial of
difference. That the anti-Orientalist has such a definition somewhere in the back of their mind is certain: otherwise it would be
impossible to speak of “Western ideas of law.”71 To speak of “Western ideas of law” necessarily implies the existence of non-
Western ideas about law, and moreover that there is something about those ideas that allows one to identify them as ideas about
law and not ideas about something quite different--basketball or religion or cuisine.
In other words, anti-Orientalists insist on a particular definition of law just as much as those they criticize, and that very
definition, even though typically unstated, is the basis of the critique. But as already noted, the answer to the question of whether
there is or has been law in China “is always already embedded in the premises of the questioner. It necessarily depends on the
observer's definition of law.”72 Thus, the only thing one can say about a definition is that it is more or less useful than some
other definition, and to have that discussion it is necessary to set forth the competing definitions.
For example, the anti-Orientalist might cogently argue that the implicit or explicit definition of “law” used by those who dismiss
(or praise)73 China as lawless focuses on trivial features of Western law and ignores important commonalities between China
and the West. But then the anti-Orientalist's competing definition must be openly advanced and defended on its merits.
It will not do to claim that “law” simply cannot be defined. Anti-Orientalist writers on law do not write about what we call
sports. Thus, while Ruskola asserts that “there is no such thing as ‘law as such’ .... Law only exists in concrete historical and
political conjunctures and cannot be evaluated apart from them,”74 his insistence that the very distinct historical and political
conjunctures of China and the United States both exhibit law would not be possible without a supra-cultural conception of “law
as such.”75 Indeed, as John Gardner writes, if there is no
*73 law as such ... if there is nothing to be said about law in general, then there is also nothing to be said about
particular instances of law qua law. If law is not a valid classification, then nor is Cheyenne law, international
law, Scots law, shari'a law, or Roman law.76
Such a supra-cultural conception of law seems to be lurking behind Ruskola's approving citation of Robert Gordon when the
latter states that law is “omnipresent in the very marrow of society.”77 Ubi societas, ibi ius. Of course one cannot claim that a
conception of law as inherent in the very notion of society is wrong; the question is whether it is very useful, and in particular
whether such a conception can support a denial of fundamental differences. In other words, the claim that China is “lawless,”
whether right or wrong, is a claim that in its most oversimplified and easily attacked form says, “They don't do things the way
we do.” Yet few people would consider such a statement per se impermissible when comparing cultures; why should it be
impermissible when talking about order systems?
As an approach to comparative studies, the a priori denial of difference is not unique to anti-Orientalists. We see the same
approach in the work of the legal historian A.W.B. Simpson, who notes that modern English ideas about contract as an agreement
supported by consideration were unknown to medieval English lawyers, and that therefore “any attempt to investigate the
medieval law of contract in terms of modern legal theory would be perfectly futile, for it could only lead to the ridiculous
conclusion that no law of contracts existed.”78 But why is the conclusion ridiculous? It is ridiculous only if we already know that

a law of contracts existed, but how do we know that before the investigation? One cannot escape the feeling that Simpson has
decided beforehand that such a conclusion would be ridiculous, and therefore takes pains to define “contract” more capaciously:
The only practicable method is to adopt for the purposes of the inquiry a loose working definition of contract
law as the law governing the legal effect of those consensual transactions *74 which have been regarded as
giving rise to a relationship of obligation, normally confined to the parties to the transaction, and see how such
transactions were handled by the old lawyers in their terms.79
But note the purpose that is driving this definition: as with the anti-Orientalists, it is to enable him to talk about a type of
transaction that interests him and to call it “contract.” The definition is not justified in any other way, and he even admits that
defining it in this way “involves an author in some inconsistency of treatment”80--but why should it, if he has clarified in his
own mind what he means by contract and why he wants to investigate it?
There is nothing wrong with his definition; it is in fact useful because the level of abstraction is neither too high nor too low for
his apparent purposes. But it is not ridiculous to use another definition. We do not find it ridiculous, for example, to say that the
United States had nothing one could call “environmental law” before the field was invented in the mid-1960s by Joseph Sax and
others. Before then there were some laws about the various things covered by environmental law, but they were environmental
law only in the same way that we have a Law of the Horse.81
By the same token, Grant Gilmore did not find it ridiculous to say that before Christopher Langdell, there was in effect no
such thing as “contract law”:
Until the late eighteenth century there was no such thing as a law of sales or a law of negotiable instruments--not
to mention a law of contracts. Before then there were cases about sales and cases about negotiable instruments--
as there were cases about contracts. But cases are one thing and a systematically organized, sharply differentiated
body of law is quite another thing.82
In other words, before Langdell, there was no more a Law of Contracts than there is a Law of the Horse. Of course, there are
those who disagree with Gilmore's history. But the point is that it is meaningful to say that a field of law such as contracts
did or did not exist at some particular time, and any methodology that preordains the ridiculousness or unacceptability of that
conclusion has a problem.
*75 If it is meaningful to say that a field of law such as contracts did not exist at some particular time, it must by the same
token be meaningful, and should not be unthinkable, to say it did not exist in a particular place. And the statement “China did
not or does not have a legal system” should not in itself be any more absurd or demeaning than the statement “medieval England
did not have contract law.” And not just contract law: Harold Berman was not engaging in a snobbish and ignorant putdown
of Europe when he wrote that before the end of the eleventh century, “what is known today as a legal system ... did not exist
among the peoples of Western Europe.”83 It all depends on one's definition of “legal system” and “contract law.”
To sum up, let us be precise about where the sin of an Orientalist approach really lies. Suppose we have a Kenyan who asserts
that only countries to which giraffes are native are good countries. He has assumed the universality of the principle that having
giraffes is uniquely good and simply defined away the possibility of many other countries being good countries. This is the type
of mistake classical Orientalism makes, and it is justly criticized. But it is not Orientalist to assert that China has no giraffes.84

Ruskola's description of Orientalism as “a discourse [that] entails the projection onto the Oriental Other of the kinds of things
that we are not, including lawlessness”85 is accurate both as a description and as a critique: what the Orientalist analyst sees
about the society under study turns out to be effectively determined by features (real or idealized) of the Orientalist's own society.
We do not learn much about the purported object of study. But it does not logically follow from that that the world contains
no others, or that differences, even opposites, do not exist. One cannot properly address the claims of our Orientalist Kenyan
by insisting that pandas, for example, are China's version of a giraffe, and that the Kenyan is wrong to use such a narrow and
culture-bound definition of what constitutes an “authentic” giraffe. The mistake, if it exists, is in the value judgment attached
to the observation, not in the observation itself.86 The anti-Orientalist's *76 determination to efface difference is as politically
driven and potentially misleading as the Orientalist's determination to find it.
The real problem is nothing more nor less than the appropriate level of abstraction to use in defining and talking about some
concept or idea or institution, and there is no formula that will give us a determinate answer to that question. If we define “law,”
“legal system,” and “court” at a high enough degree of generality, we can always find them anywhere we look. Indeed, if we
define any social institution at a high enough level of generality, we can find that all societies that now exist and have ever
existed are fitted out with all the institutions of twenty-first-century America. But what exactly have we achieved with that
result? The level of generality of the definition must ultimately be justified by the purposes of the inquiry, and not by some
external imperative to include certain phenomena in it.
B. “Assumptions”
A characteristic move in the anti-Orientalist approach is to label an undesirable view as an “assumption.” An assumption is,
of course, a view that has never been subjected to critical scrutiny and is simply taken for granted; as such, it is one of the
most cutting criticisms an academic can make about the views of another. It suggests that the other is at best careless in his
methodology, and at worst just not very bright. For example, one scholar speaks of the “assumption” (which he proposes to
challenge) that “law and China exist in an antithetical relationship.”87 To challenge this view is certainly unobjectionable.
Very possibly, generations of scholars have stereotyped and caricatured China's legal system. But have they really assumed its
character? Or have they instead made a conclusion about its character after study?
*77 Certainly the literature is not short of studies by sophisticated scholars--some of whom, at least, can hardly be accused of an
anti-China bias-- asserting in various ways that law and China are strangers. For example, Joseph Needham--whose admiration
for China led to his monumental Science and Civilization in China,88 and whose biography is entitled The Man Who Loved
China89--concluded in Science and Civilization that in China, “[t]he notion of Order excluded the notion of Law.”90
Thomas Stephens made a similar claim in his Order and Discipline in China.91 In a series of articles,92 Alice Erh-Soon Tay
advanced the claim that the Chinese system of order was essentially “parental” or (in Stephens's terms) disciplinary and therefore
fundamentally different from what she called the “adjudicative” approach of Western legal systems. And William Jones wrote
that “there is some question indeed whether [the document known as the Qing Code] should even be called a ‘code,’ or ‘law,”’
and that “what we mean by legal analysis ... did not exist in China.”93
In all these studies, the authors reach the conclusions they do after canvassing various features of Chinese institutions and
making arguments about their significance. These conclusions might be wrong, misleading, or even pernicious, but one thing
they are not is mere “assumptions.”
C. Susceptibility to Attractive Narratives
A final feature of anti-Orientalism worth noting is that it shares with Orientalism a susceptibility to attractive but ultimately
misleading narratives. Anti-Orientalists are fond of pointing out (quite correctly) that a particular Orientalist narrative can come

to dominate the actual facts--not necessarily because those who repeat the narrative are consciously trying to distort the truth,
but because they find the narrative so plausible that they do not take seriously the possibility that it might be false. And yet
the counternarrative--one of an enduring Orientalism--can in the same way come to dominate the actual facts by virtue of its
plausibility.
*78 A case in point is a fine study of the Lady Hughes affair by the legal historian Li Chen.94 The Lady Hughes affair involved
the execution by Chinese authorities of a British sailor in 1784:
In that case, a British gunner, allegedly in firing a gun salute, shot to death two Chinese boatmen in Canton. After
a violent struggle between the local authorities and the Western representatives in Canton over whether the gunner
should be tried by the Chinese courts, he was finally sentenced by the Chinese emperor to strangulation.95
The case was a key part of the history of modern China's foreign relations and in particular in the demand of foreign powers
for the privileges of extraterritoriality: the right of their citizens to be exempt from the jurisdiction of Chinese law and legal
institutions. As Chen writes, “[i]t was traditionally understood that the British gunner shot the two Chinese by pure accident
and was thus free from any legal liability, and/or that the Chinese insisted on executing a totally innocent and unrelated British
subject even though the gunner escaped or was unidentifiable.”96 Indeed, so strong has been this traditional understanding that
even Frederick Wakeman, an eminent historian recognized and admired as such by Chen, accepts the story completely:
In 1784, for example, a salute fired by the Country ship, Lady Hughes, accidentally killed a Chinese bystander. It
was impossible to tell which gunner had delivered the fatal charge, but the Chinese had to have a culprit so that
the crime would not go unpunished. To them, the act was far more important than the motive, just as redressing
a wrong was more important than punishing the perpetrator. What sounded like lex talionis in the “life for a life”
doctrine, was the desire to restore the ethical balance of a just reign by exchanging the victim's injured spirit for
the culprit's life. Consequently, when the supercargo of the Lady Hughes could not produce the guilty gunner, he
was seized as “forfeit” instead. Eventually a hapless gunner was turned over the Chinese and executed.97
Chen's brilliant reexamination of the case shows almost every sentence of Wakeman's summary to contain an error. The firing of
the salute might well have involved a degree of recklessness that would have been culpable under the laws of Western countries
both then and now, to say nothing of Chinese law. The identity of the gunner was known. There is no evidence in this case
that the Chinese took the *79 view that a life had to be paid for with a life.98 The supercargo was seized not as a forfeit, but
instead to force the handover of the gunner. (Possibly the gunner was indeed hapless; there is evidence that the gunner notified
his superior that firing the salute could be dangerous but was ordered to carry on regardless.99) In other words, what we see
here is truly a classic Orientalist narrative: a Chinese legal system marked by a cavalier disregard for actual culpability, with
an exotic dose of mysticism thrown in for good measure.
Now for the counternarrative. Chen cites the historiography of the Lady Hughes affair on the first page of his recent book on
Chinese law, and finds parallels in the case of Akmal Shaikh, a British national executed in China in 2007 on drug smuggling
charges.100 The case made headlines in Britain and was the subject of extensive representations by the British government to
China. The issue was whether Chinese judicial authorities should have allowed (and then considered the results of) a psychiatric
evaluation, since mental illness is relevant under Chinese criminal law and Shaikh had exhibited bizarre behavior in the past.
They did not, and for this reason the execution was denounced as “totally unacceptable” by the British Foreign Office and as
“medieval rough justice” by a mental health NGO.101

In drawing a parallel between the Lady Hughes and Shaikh cases, Chen states: “Despite the lapse of two centuries separating
the two cases and the vastly different circumstances underlying them, the dominant narrative seems not to have changed a bit:
that of an innocent foreigner falling victim to Chinese despotism or barbarity. Eighteenth-century images of Chinese law have
survived.”102
*80 But was that really the dominant narrative? In fact, nobody claimed that Shaikh was an innocent foreigner. His family did
not dispute the charge that he had smuggled drugs. The British Minister of State for Foreign and Commonwealth Affairs, Ivan
Lewis, stated, “[i]t's true he was found guilty of a serious crime,” without suggesting that the process (other than the failure to
consider mental illness) was in any way defective.103 In a later Chinese case involving the possible execution104 of a European
(which is what allegedly drives the narrative of modern Chinese barbarism), a German man was sentenced to death in 2014
for a double murder committed in 2010. The government of Germany--a country that does not have the death penalty--lobbied
against his execution, but not against his conviction as such.105 There are no reported allegations that the defendant was actually
innocent or that the Chinese legal process was in some other way inadequate.
In short, the anti-Orientalist counternarrative is attractive because it seems intuitively plausible to intellectuals today in the same
way Orientalist narratives appeared plausible to an earlier generation. And it would be disingenuous to deny the Orientalist
tropes that accompanied some of the commentary on the Shaikh case. But when we look closely at that case and the later
case of the German defendant, the anti-Orientalist counternarrative does not seem adequate to explain the Shaikh case. The
protests were not in fact based on Orientalist stereotypes, and there were even fewer protests in the later 2014 case, in which--
were Orientalism the explanation for the protests-- one might have expected more, given that the defendant then was a white
European, whereas Shaikh was born in Pakistan.106 We must take care not to dismiss out of hand the simplest explanation: that
the protests were driven by the particular features of the case, not by a general feeling of outrage at the execution of a European
by a barbaric Chinese legal system.
Another anti-Orientalist counternarrative can be found in Teemu Ruskola's book Legal Orientalism. The epilogue to the book,
entitled *81 “Colonialism Without Colonizers,” situates China's accession negotiations to the World Trade Organization (it
joined in 2001) within a history of Orientalism-inspired extraterritoriality--the system under which Westerners within China used
to enjoy immunity from Chinese legal processes.107 Indeed, Ruskola asserts that the regime of U.S. extraterritoriality in China,
together with its Open Door Policy, were “functionally similar” to the WTO (although he does concede the critical difference
that China's participation in the latter is voluntary).108 And just as the foreign powers withheld abolition of extraterritorial
privileges until China adopted a legal system based on the Euro-American model that would make such privileges unnecessary,
so (he asserts) that “[a]s part of the price of admission into the WTO ... China had to agree to alter its legal institutions to conform
to North Atlantic standards.”109 Indeed, says Ruskola, the WTO “demand[ed]” that China adopt a regime of rule of law.110
This is going way too far. China did have to alter some of its laws and regulations relating to trade and investment to conform
to WTO rules--for example, member countries may not provide export subsidies or condition approval for foreign investment
upon promises to source locally or export the output. But it was not required to make, and did not make, any changes of great
significance to its legal institutions as that term is fairly understood.111 The one agreement that might be thought to most
significantly implicate a country's domestic legal system--the agreement on Trade-Related Aspects of Intellectual Property
Rights, or TRIPS--in fact specifically states that it “does not *82 create any obligation to put in place a judicial system for
the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the
capacity of Members to enforce their law in general.”112
To be fair, the issue is not black and white. Nevertheless, it appears that the lure of the anti-Orientalist narrative--a story of
a kind of gunboat diplomacy of trade law--has led Ruskola to conflate treaties negotiated on the basis of carrots with those
negotiated on the basis of sticks, and to vastly overstate the degree to which China was required to change anything significant

about its legal system. Few scholars would point to 2001 as a watershed year in the history of Chinese law or assert that ever
since then (but not before), China has had a regime of rule of law.113
III. What Does It Mean to Say that China Is “Different”?
The previous Part attempted to show that anti-Orientalism is flawed in its insistence on the denial of difference and in its
too-ready attribution of Orientalism to others. This Part will try to show what it might mean, in a comparative inquiry, to say
that China is different.
Because of the language problems discussed in Part I, before going any further we need to find a term that will allow a
comparative inquiry while not predetermining its outcome in the way that concerns us.114 Thus, let us back up one level of
abstraction and talk about “systems for the maintenance of social order” or just “order systems” to encompass both the American
legal system and what is conventionally called the Chinese legal system. Needless to say, this term has its own problems: it is
a functionalist term that assumes (a) that each system in question is in fact unified enough to be called a system, and (b) that
it was designed to, and actually does, maintain social order. This in turn implicates a number of complex issues that cannot
possibly be dealt with in the space of a single article; for the moment, the point is just to have a convenient label for the set of
institutions in both China and the United States that are discussed here and that will apply to both, but will not predetermine
the answer to the question of whether they should both be called “legal” systems.
The fundamental clash is between, on the one hand, a position asserting that however different the Chinese order system might
be, *83 it is still appropriate to call it a “legal” system and to use the terms of Western jurisprudence (laws, rights, courts,
judges, etc.) to talk about it, and on the other hand, a position associated most prominently with Thomas Stephens in his book
Order and Discipline in China115 that holds that using this language is fundamentally misleading, and that we will get further
in understanding by applying the language and logic of disciplinary systems.
A disciplinary system is one that follows the model of order that prevails in the army, the family, and the traditional schoolroom.
Stephens spends a couple of chapters elucidating the logic of such a system; to summarize briefly, the general idea is that the
key values of a disciplinary system are the maintenance of hierarchy, group cohesion, and authority, not fidelity to abstract rules
or individualized justice. The primary duty of obedience is to one's immediate superior, and each level of the hierarchy has a
duty not to bother its superiors with the quarrels of its inferiors. Most importantly for purposes of comparison, individuals do
not have rights--certainly not the kind of rights that could be exercised against superiors. They may have interests to which
the system is sympathetic, but whether those interests will be fulfilled is a matter for their superiors to decide. Thus, practices
such as collective punishment, a presumption of guilt, and the nonaccountability of authorities to any external body not under
their control are not mistakes or errors or signs of immaturity in the order system; they are inherent, necessary parts of it. They
are features, not bugs.
Stephens was writing about traditional China, and even as applied to traditional China there are valid critiques of his work,116
but let us leave those aside for now. The question for now is not whether he was right or wrong, but rather whether the alternative
paradigm that he proposes can ever be useful. While I discuss China in further detail later, let us canvass right now a few reasons
why we should not exclude right out of the gate the possibility that the Chinese order system really is qualitatively different
and cannot be squeezed into the categories of Western jurisprudence. What I propose here are not conclusive arguments, but
observations more in the nature of probable cause justifying an open mind on the issue.
Most obviously, China's cultural tradition--by which I mean everything one might want to say about China's history, whether
that history is characterized as religious, social, political, or anything else--is quite different from that of the United States and
Europe. Why should we assume that a particular cultural product of the latter tradition should have a close counterpart in China?
And let me be specific: by “close counterpart” I mean an institution close enough that it should be called by the same word. We
might discover that to be true *84 after investigation, but to lay it down as an a priori premise seems unjustified. The legal

anthropologist Paul Bohannan has spoken of “the questionable doctrine of the psychic unity of mankind”--the notion that we are
all basically the same under the skin, and that cultural diversity really amounts to little more than different patterns of circular
dancing, odd culinary customs, and the wearing of funny hats.117 Or let me quote the historian David Hackett Fisher, who argues
that “[p]eople, in various places and times, have not merely thought different things. They have thought them differently.”118
Consider the notion of a right: an elementary particle, if you will, of the legal system of the United States and many other
countries. It gives the holder, who could be a private individual, the option to invoke the coercive machinery of the state to
vindicate his interest. To a Chinese imperial official, the idea that an ordinary subject of the emperor should have the ability,
unmediated by any superior authority that took the broader picture and the interests of the state into account, to make the
machinery of the state operate at his option for his own selfish interests would have seemed monstrous and absurd.
As William Jones has observed, in the imperial Chinese order system “the punishment assumes the role ... that the right assumes
in ours. That is, in our system, any act which the law takes cognizance of will give rise to a right. In China, any act which the law
took cognizance of gave rise to a punishment.”119 Given China's very different cultural history, then, it is hardly surprising that
when it came time to translate books such as Henry Wheaton's Elements of International Law into Chinese in the mid-nineteenth
century, the translators had to make up the neologism of quanli (<<foreign language>>) in order to express so fundamental
a term as “right.”120
I should not be understood here as arguing for what the linguist Geoffrey Pullum calls “naïve lexical global Whorfianism”:
the belief that “we can't form a concept if we don't have a word to serve as the name for it.”121 I believe a nineteenth-century
Chinese could have *85 imagined the concept of rights even in the absence of a good word for it in the same way that the
designers of the iPhone were able to imagine a smartphone even in the absence of a good word for it. But if we look at procedure
in the yamen for settling disputes or investigating and punishing crimes, we do not really see a concept of rights in the sense of
claims that individuals can make to choose to have state power deployed on their behalf to serve their interests, or to prevent
the deployment of state or private power against them. Is it likely that an order system without an easy way of expressing that
idea would be anything but fundamentally different?
Of course, the Chinese order maintenance system could on occasion be used to that effect, but we should not confuse this with
a concept of rights. To take an American example, it can happen that a federal judge takes over the operations of a state prison
system because it is being unconstitutionally run.122 But it would be a great misunderstanding of the American legal system to
conclude from that observation that adversarial litigation is designed to run vast government bureaucracies.123
Turning to modern China, let us return again to Stephens, the high priest of the doctrine of difference, and consider his description
of the principles for deciding civil disputes in a disciplinary system:
[N]ot according to rigid imperatives and the strict rights on individuals, but according to the circumstances of the
particular case, having regard to the interests of the group. In [the disciplinary] mode any rules that may apply are
not treated as determinative imperatives, but only as part of the surrounding circumstances to be looked at.124
Regardless of whether this description of traditional China is accurate, compare it with Benjamin Liebman's descriptions of
judicial decision making in modern China. First he describes the so-called Ma Xiwu-style adjudication that was promoted at
the beginning of the People's Republic of China:
*86 Law became inseparable from politics and was designed to advance party policy. Law was practical
and adaptable, not rigid or constraining. Legal institutions were neither independent nor specialized, and

professionalism was explicitly rejected. Written law yielded to actual experiences; a correct decision was one that
met the emotions of the masses.125
He then moves on to present-day China:
Judges facing populist pressures often take flexible approaches to legal rules, or ignore them altogether .... [But]
courts that bend to accommodate the media or petitioners are not abandoning principle. They are doing exactly
what their roles in the political-legal system require: adapting in a practical fashion to popular demands and
ensuring that legal rules do not diverge too greatly from popular conceptions of right and wrong.126
More generally, he adds: “Judges today continue to be responsible for more than just applying the law .... [They] continue to
be evaluated in significant part based on the social effect of their work, not only on substantive correctness.”127 In 2008, then-
President of the Supreme People's Court, Wang Shengjun, publicly stated his view that courts should base decisions in capital
cases not just on law, but also on the general public security situation and the feelings of the masses.128 A similar view was
expressed by a vice president of the Court in 2017.129
And consider this recent conclusion of two scholars on the basis of extensive fieldwork in Chinese courts:
When deciding a case, the court does not simply apply legal rules. In many cases, the following of legal rules is
not the primary consideration. Judges assess the risks of various options in the process of deciding the outcome of
a case. The risk of a potential option is reflexively factored into the decision-making process. This mechanism of
administrative assessment is layered and its distribution of power is unmistakably top-heavy. Formal procedures
and rules are *87 circumscribed at many points by the concerns and interests of external, powerful parties, the
most important of which is the local party-government.130
We can, of course--and many in China did--condemn Wang Shengjun's views, and insist that as a normative matter judges should
apply only the law. Even though we may recognize that this is an impossible ideal, one may feel that to strive imperfectly for that
ideal is better than to strive imperfectly for some other. But that value preference should not be confused with an understanding
of the system, and indeed may contribute to a misunderstanding. It inclines us to think that when judges consider factors other
than the rules, it is a kind of mistake in the system. Every human institution makes mistakes, so the mistake does not tell us
much about the system. But if it is not a mistake, if it is an inherent part of the system, then viewing it as a mistake is going
to mean that our overall understanding of the system is wrong. There is a big difference between a fish with an impaired gill
function and a human being trying to breathe underwater. We can wish mightily to be able to breathe underwater, and it would
be wonderful if we could, but our inability to do so should not be understood as a malfunction of our body.
It might be objected that the picture of Chinese courts taking factors other than law into account is not significantly different
from the picture of American courts painted by legal realists and their intellectual descendants, and that therefore this does not
count, even if accurate, as a fundamental difference. A first response is to say that there is a large difference between a system
in which judges are openly encouraged to take factors other than law into account and a system in which their doing so must
be hidden under the table. In the former it is a feature; in the latter it is a bug.
But it could further be objected that in fact American judges do not have to hide their consideration of factors extraneous to law.
Exhibit A in this objection is the writing of Richard Posner, recently retired from his long-time position on the Seventh Circuit

Court of Appeals. Posner's philosophy of judicial pragmatism131 has, fairly or not, opened him to the charge of advocating that
judges should simply decide what they think is right and make up the legal basis afterward:
My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other
conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or
problems presented by the case. Once having found what I think is the sensible solution I ask whether it's blocked
by an authoritative precedent of the Supreme Court or by some other ukase that judges must *88 obey. If it's
not blocked (usually it's not--usually it can be got around by hook or by crook), I say fine--let's go with the
commonsense solution.132
....
The time to look up precedents, statutory text, legislative history, and the other conventional materials of judicial
decision making is after one has a sense of what the best decision should be for today's society.133
But even Posner feels obliged to deny that that is what he is suggesting. Note that he pronounces himself constrained by any
“ukase that judges must obey.” And after his retirement from the bench, he explained his position as the quite uncontroversial
one that “what is permissible is for the judge to brush away existing law that doesn't actually govern the case at hand, though
one of the parties might argue that it does.”134 Whatever he actually believes, it is clear that when pressed, he backs away from
outright advocacy of ignoring the law. Furthermore, Posner is still advocating that judges do what they individually believe to
be best, not that they try to act as dedicated minor officials within an administrative bureaucracy.
We are not, of course, confined to the disciplinary paradigm as the only alternative to the standard Western legal paradigm. Let
us look at the example of shuanggui, the Chinese Communist Party's system of investigation and detention.135 For many years,
this system operated completely outside the law of China. Chinese law requires that any physical restriction of freedom must
be authorized by a statute passed by the National People's Congress or its Standing Committee,136 and prior to March 20, 2018,
no such statute authorized shuanggui.137 Thus, legally speaking, it is hard to see shuanggui *89 before then as anything other
than the crime of unlawful detention under article 238 of the Criminal Law. But how did insiders within the system view it?
As one might expect, there were people who opposed shuanggui and people who supported it. Interestingly, however, those
who supported it typically did not try to argue that it was lawful. Verdicts ranged from “unlawful”138 to “to a certain degree
it challenges the authority of the constitution.”139 But in general, the analyses that found it unlawful also found it permissible,
based on the notion that deviations from legality or constitutionality are permissible if they are necessary to resolve pressing
social problems. Moreover, the view that it was unlawful but permissible accepted that it was unlawful as a verbal matter only;
it did not approve of imposing the sanctions that normally attend unlawful activity.
Thus, many knowledgeable insiders did not feel comfortable calling shuanggui lawful or unlawful; observers seemed
instinctively to reach for the term “extralegal” in describing the shuanggui system,140 no doubt because they felt--correctly--that
simply calling it “illegal” would misrepresent something important about the system in which it existed. Shuanggui occupied--
and perhaps still occupies, given the lack of meaningful constraints in the Law on Supervision--a realm of government activity
that is not meaningfully regulated by law even in principle, let alone in practice. Legality in China is not a universal standard
against which all acts of government can be judged. Instead, it is a subset of the various tools of governance available to the

state. There may be universal standards against which all acts of government can be judged, but they are standards of prudence
or morals, not standards of law.
Note that this is not a question of disagreements over legality. Both the defenders and the critics of “enhanced interrogation”
methods used by U.S. government officials against terrorism suspects agree that legality is a meaningful standard;141 they
simply, or not so simply, disagree over whether it is met.
*90 Put another way, we can think of the legal system as a game that participants in a sociopolitical order can play. Let me be
clear here: I am not saying that the rules of law constitute the rules of this particular game. What I mean is a kind of game whose
rules require that one talk about legal rules in a certain way. Among other things, the rules of the legal system game require
acceptance of the binary distinction between legality and illegality. My contention, then, is that some sociopolitical orders142
require that everyone, including the government, play the legal system game. They may play it more or less skillfully, and they
may cheat, but play it they must, and renounce it they cannot.
The legal system game in China is just not like that. It is one of many games that the state can play, but it is not required to
play it and it does not always play it. The state in China does not derive its legitimacy from the law, and does not need legal
authority to act. This, then, is why asking whether some act of government in China is legal or illegal often makes no sense
and results in such a frustrating conversation.143 It is like asking whether it conforms to the rules of basketball. Possibly with
enough effort one could figure out what that question even meant, and then figure out an answer, but where would that get us?
We still would not be even close to understanding what the action in question was all about. The government wasn't playing
basketball; it was playing an entirely different game.
For this reason, shuanggui could exist outside the legal system in the sense that the questions about it generated by the legal
system paradigm simply do not make any sense. If they have answers, the answers do not help us understand the system. To
understand shuanggui fully, we must give up the idea that, in the words of Ruskola, “whatever the differences between Chinese
and American law may be, they are matters of degree only.”144 Or, more frighteningly, we must fundamentally rethink what
most of us think Western law is about, and accept that a fundamental and basic part of the American and other Western legal
systems is a domain of the extralegal, a state of exception not appreciably different from that which we find in China. There are
indeed those who have made this argument, most notably Giorgio *91 Agamben, who draws on the work of Carl Schmitt,145
but it is not in fact an argument one sees in the work of the anti-Orientalists. Their argument is not that the West is just as lawless
as the Orientalist portrays the East; it assumes that the West is not lawless, but insists that neither is the East.
Conclusion
It may seem odd that an article about concepts of law should offer no definition of law of its own. But the purpose of this Article
is not to insist on a particular definition. It is simply to argue that definitions serve particular purposes, and must be judged
by the legitimacy of the purpose and the serviceability of the definition in accomplishing it. Although this is far from a novel
insight, it seems absent from the anti-Orientalist insistence that China simply must be found to have law.
The chief flaw of anti-Orientalism is that it demands a denial of difference in advance of scholarly inquiry into the existence of
difference. To recognize the possibility of difference means to recognize the potential usefulness of a paradigm other than that
offered by the standard concepts and vocabulary of Western law. If we use the standard concepts of Western law, then what do
we do with observations that do not fit the model? It seems we have two choices: either (a) we call them errors, shortcomings,
a falling short of an ideal, a sign of immaturity, or a low level of development that will fix itself over time,146 or (b) we simply
claim that the observations are wrong. This is not satisfactory. We must be able in principle to interpret the observations as
intrinsic parts of the system in question, utterly consistent with its logic.

In the case of China, at least, there is prima facie evidence suggesting that we should at least be open to the idea that the
Chinese order system is fundamentally different from what we think of as a legal system, and it should not be methodologically
impossible, let alone politically incorrect, to say so. Indeed, the substantive position I am taking here (as opposed to the
methodological position) is *92 not especially original; the idea that there are some very fundamental differences has been
broached repeatedly by author after author over the last century.147 But so far nobody has had the time, energy, or perhaps
chutzpah to work out an alternative paradigm in the necessary detail.148 Nevertheless, most people who have studied Chinese
law from a Western jurisprudential perspective share the experience of occasionally running into things that just don't make
sense. When that happens we can either blame the Chinese for not making sense, or we can reexamine our premises.149 We
should do the second.
Why does any of this matter? Ronald Dworkin once stated that the question of “what makes a particular structure of governance
a legal system rather than some other form of social control” was merely a sociological question without “much practical nor
much philosophical interest.”150 But he was wrong. The question of how to characterize any putatively legal order is not only
of philosophical interest, but in the case of China is of immense practical importance as well. American courts were never likely
to be dealing with the products of what might or might not properly be called the “judicial system” of the Barotse or the Tiv,
and so could leave discussion of the issue to the anthropologists and the sociologists. This is not true of China.
China is increasingly integrated into the global economy.151 The value of its exports has grown from 0.72% of world exports in
1979--the beginning of the post-Mao era--to 10.6% in 2018.152 Total trade went from 16% of domestic gross domestic product
(GDP) and 0.3% of world GDP in 1979 to 34% and 5.4% respectively in 2018.153 From 1983 to 2017, annual foreign investment
in China octupled as a share of world GDP, from 0.02% to 0.16%. There are now some 137 Chinese companies trading on
the New York Stock Exchange or the NASDAQ, and another 152 traded over the counter in the United States.154 And there
are now about four million native-born Chinese citizens living *93 outside of China,155 where they enter into contracts, get
married, receive an education, and commit crimes.
Increased integration means increased contact and interaction between the Chinese and the American legal systems, and we
must make decisions about how to handle that interaction. For example, Tai Zhi Cui, the suspect in a 2006 triple murder in
Los Angeles, fled to his native China. Only in 2014 did Chinese authorities respond to requests by the U.S. authorities for
cooperation, offering to prosecute Cui in China. At that point, the U.S. prosecutors, despite their desire to see Cui tried, found
that they had to seriously consider how much they could cooperate with the Chinese authorities, given concerns about the degree
of due process afforded criminal suspects in China.156
Another occasion for decision making arises in civil cases with transnational elements where a defendant sued in a U.S. court
moves for dismissal on forum non conveniens (FNC) grounds. The purpose of the FNC doctrine is to allow a court with
jurisdiction over a case nevertheless to dismiss it when it believes it would be more appropriately tried in a different forum.
There is a multi-factor test for application of the FNC doctrine; a critical element is that there must exist an adequate, available
alternative forum.157 Does China (for example) constitute such a forum?
The doctrine is supposed to have a presumption in favor of the plaintiff's choice of forum,158 and puts the burden of proving
the availability of an adequate alternative forum on the moving defendant. In these and other transnational cases, it might well
be asked: What makes China special? Why cannot we simply rely on the private international law doctrines developed for
countries with which the United States has had long litigation experience?159
Maybe we can--but the question is, what elements of these doctrines should we take for granted? In FNC cases, how much
should the moving defendant have to prove, and what should count as evidence? If we assume the Chinese legal system is
different only in degree from *94 the U.S. legal system, then evidence about the content of Chinese laws regarding civil

procedure, documentary and witness evidence, the role of counsel, and similar matters might be enough. If we do not make
that assumption, then perhaps the moving party would also have to prove that China possesses institutions appropriately called
“courts” and that the individuals staffing those institutions are appropriately called “judges,” without any presumption that this
is indeed so. A daunting task, to be sure--but an unfair one?
I know of no FNC cases, whether or not dismissal was granted, where judges in fact asked these basic questions about the
putative legal system of any jurisdiction, let alone China. They uniformly took for granted that the institution proposed by the
defendant as an alternative forum was indeed unproblematically called a “court” and that its purpose was to enforce written
laws, and focused instead on whether it was adequate. In short, the lack of fundamental difference is simply assumed a priori,
and not considered a matter subject to the doctrine's rules on the burden of proof.
One can readily imagine other circumstances where similar judgments must be made about the putatively legal institutions of
another society: in the enforcement of foreign judgments for example, or when assessing the accuracy of assertions that another
country's “law” requires a party to do something. Should foreign “law” be understood by American courts to include telephone
calls from officials to regulated parties?160 There is no obviously right answer to any of these questions. But recognizing the
possibility of difference means that we must at least think about asking them.
Footnotes
d1 http://dx.doi/org/10.1093/ajcl/avaa014
a1 Professor of Law and David A. Weaver Research Professor, George Washington University Law School. For many helpful discussions
over time or comments on earlier drafts (or both), I wish to thank John Borneman, Jerome Cohen, Wei Cui, Jacques deLisle, Mike
Dowdle, Mary Gallagher, Nicholas Howson, Jed Kroncke, Ben Liebman, Teemu Ruskola, Frank Upham, and the organizers and
workshop participants at the American Society of Comparative Law 2018 Comparative Law Workshop at Princeton University.
I would particularly like to thank John Wagner Givens for inviting me to give the keynote address at a University of Pittsburgh
conference that led to this Article, and the two anonymous reviewers for this Journal for their detailed, thoughtful, and constructive
criticisms. All translations in this article are by the author unless otherwise indicated.
1 Paul Bohannan, Ethnography and Comparison in Legal Anthropology, in Law in Culture and Society 401, 408 (Laura Nader ed.,
1969).
2 G.K. Chesterton, The Defendant 36 (Dale Ahlquist ed., Dover Publ'ns 2012) (1901).
3 See, e.g., Symposium, Law and Orientalism, 7 J. Comp. L. 1 (2012).
4 See, e.g., Call for Papers, Conference on Orientalism, Neo-Orientalism and Post-Orientalism in African, Middle East, Latin American,
Asian/Chinese Studies, Shanghai University, May 17-18, 2018 (Sept. 16, 2017), https://perma.cc/2AWJ-NLK7.
5 The work of various professors will be discussed in this Article.
6 Karl Marx & Friedrich Engels, Manifesto of the Communist Party (Samuel Moore trans., 1888), https://perma.cc/7CUJ-KREX.
7 Id.

8 Indeed, merely taking the position that the effort necessary to learn Chinese characters poses a needless barrier to literacy in Chinese
has been blasted as Orientalist. See Victor Mair, Firestorm over Chinese Characters, Language Log (May 23, 2016), https://perma.cc/
LYC3-6YXD (discussing the debate, with hyperlinks).
9 See Richard Falk, Cultural Foundations for the International Protection of Human Rights, in Human Rights in Cross-Cultural
Perspectives 44, 59 (Abdullahi Ahmed An-Na'im ed., 1992).
10 Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct?, 15 Mich. J. Int'l
L. 307, 388 (1994). For a similar critique that roots the weakness of some Western liberals' support for Salman Rushdie in their
patronizing Orientalist views of Islam, see Sadiq J. Al-Azm, The Importance of Being Earnest About Salman Rushdie, 31 Die Welt
des Islams 1 (1991).
11 Some of the critiques I will be addressing also use the term “Eurocentric” rather than “Orientalist.” The adjective is equally pejorative.
12 Legal historian Glenn Tiffert, for example, calls certain public adjudicatory institutions in republican China “judicial offices” and
their staff “trial officers.” See Glenn Tiffert, An Irresistible Inheritance: Republican Judicial Modernization and Its Legacies to the
People's Republic of China, 2013 Cross-Currents, no. 7, at 84, 92-93. Although he does not explain his reasons, clearly he has made
a choice not to call them “courts” and “judges,” in contrast to other institutions and officials to which he does give those names.
13 For many years, the Department of State's official communications in Chinese perpetuated this misunderstanding. At some point
in the Obama Administration, the official translation was changed to “Guowu Bu” (<<foreign language>>), a reasonably literal
translation of “Department of State” that would cause no misunderstanding. See, e.g., U.S. Embassy, China, Guowubuzhang Zhan
Kaili yu Zhongguo Waijiaobuzhang Wang Yi Gongtong Huijian Jizhe (<<foreign language>>) [Secretary of State John Kerry Meets
Reporters Together with Chinese Foreign Minister Wang Yi] (May 16, 2015), https://perma.cc/W32N-U5CF. But it seems to have
been quickly changed back to the old, more glorified term. See, e.g., Press Release, U.S. Embassy, Beijing, Meiguowuyuan Fabu
Quanqiu Lüxing Jingbao (<<foreign language>>) [U.S. State Department Issues Global Travel Warning (Nov. 24, 2015), https://
perma.cc/RZQ8-FQRM. The State Department in its Chinese-language communications refers to other executive branch departments
as bu, the Chinese term for a ministry, which is inferior in rank to the State Council. See, e.g., U.S. Dep't of State, Meiguo Guojia
Chukou Zhanlüe (<<foreign language>>) [U.S. National Export Strategy], https://perma.cc/7QSB-N5H8 (last visited Mar. 6, 2020)
(Chinese-language State Department fact sheet from Obama administration translating “State Department” as “State Council” but
translating “Commerce Department” as merely “Ministry of Commerce”).
14 Clifford Geertz, Anti Anti-Relativism, 86 Am. Anthropologist 263 (1984).
15 Recollections of Wittgenstein 157 (Rush Rees ed., 1984).
16 Edward Said, Orientalism (1979).
17 The Chinese scholar Liang Zhiping cites a similar list of Orientalist binary oppositions attached to the United States and China:
America practices rule of law, China practices rule of man; America is democratic, China is dictatorial; Americans are highly
individualistic, Chinese are blind followers; American society is dynamic and progressive, Chinese society is static and unchanging.
See Liang Zhiping (<<foreign language>>), You Fa yu Wu Fa (<<foreign language>>) [Having Law and Not Having Law], Dongfang
Zaobao--Shanghai Shuping (<<foreign language>>) [Eastern Morning Post--Shanghai Book Review]], no. 401 (Oct. 9, 2016), https://
perma.cc/2BTF-J9UA.
18 Pierre Legrand labels this “the trope of the ‘lack.”’ Pierre Legrand, Noted Publications, 8 J. Comp. L. 444, 450 (2013) (reviewing
Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (2013)).

19 At the same time, it is critical to remember that not all assertions of “lack” are false. Pierre Legrand expresses dismay that “even such
a perceptive literary critic and translation theorist as George Steiner falls prey to the trope of the ‘lack’ as he argues, for instance,
that ‘[Chinese] grammar lacks clear tense distinctions' ....” Id. at 450 (citations omitted). But Legrand should not have assumed that
Steiner was indulging in Orientalist assumptions; Chinese grammar does lack clear tense distinctions. See, e.g., Meichun Liu, Tense
and Aspect in Mandarin Chinese, in The Oxford Handbook of Chinese Linguistics 274, 275-76 (William S.-Y. Wang & Chaofen Sun
eds., 2015) (Section 21.2 “Chinese Has No Grammaticalized Tense”).
20 For a Chinese overview of changing Western views of China, see Zhou Ning (<<foreign language>>), Xiangxiang Zhongguo: Cong
“Kongjiao Wutuobang” Dao “Hongse Shengdi” (<<foreign language>>) [Imagining China: From “Confucian Utopia” to “Red Holy
Land”] (2004); Zhou Ning (<<foreign language>>), Tianchao Yaoyuan: Xifang de Zhongguo Xingxiang (<<foreign language>>) [A
Distant Empire: Western Images of China] (2006).
21 Gottfried Wilhelm Leibniz, Letter to Father Bouvet, in 7 Die Philosophische Schriften von Gottfried Wilhelm Leibniz 25-26 (C.I.
Gerhardt ed., Berlin, Weidmannsche Buchhandlung 1890), quoted in Jacques Derrida, Of Grammatology 79-80 (Gayatri Chakravorty
Spivak trans., John Hopkins Univ. Press 1997) (1967).
22 Derrida, supra note 21, at 86. Among other things that Leibniz got wrong, many Chinese characters have a phonetic component and
they are not infinite in number.
23 For a brief account of the Washington Consensus and the controversy around it, see Stephen R. Hurt, Washington Consensus,
Encyclopedia Britannica, https://perma.cc/ZDY5-83YE (last updated Nov. 17, 2016).
24 See Joshua Cooper Ramo, The Beijing Consensus 4 (2004).
25 Just three years after the publication of Ramo's essay, China's premier, Wen Jiabao, was publicly calling China's growth “unstable,
unbalanced, uncoordinated, and unsustainable.” See IMF, China's Difficult Rebalancing Act, IMF Survey Online (Sept. 12, 2007),
https://perma.cc/85E2-DW2B. The willingness to innovate is markedly less than ruthless; it does not include a willingness to touch a
number of sacred cows, including the anathema on formally private land ownership, formal as well as substantive inequality between
urban and rural residents, and the political monopoly of the Communist Party. The notion that China does not focus on GDP is entirely
fanciful--it is a major element in assessments of a local leader's performance in office, and stateset GDP targets are the main driver
of China's statistical falsification woes. And if the state is focusing on equality, it is not showing up in Gini coefficients. See Sara
Hsu, High Income Inequality Still Festering in China, Forbes (Nov. 18, 2016), https://perma.cc/BQ7F-G5KK. Whether the Chinese
state in fact has shifted from practicing power politics to practicing moral politics is less a question of demonstrable fact than one
of opinion best left to the reader.
26 Marco Polo, The Travels of Marco Polo (Henry Yule & Henri Cordier trans., Dover Publ'ns 1993).
27 See Chen Hong, On Matteo Ricci's Interpretations of Chinese Culture, 2015 Coolabah, no. 16, https://perma.cc/V2JW-PV9Q.
Although it is well known that Ricci's reports of China were generally favorable, I have not been able to independently confirm this
specific quotation. The cited author quotes a Chinese translation of Ricci's writings that is not available to me. An English translation
of Ricci's journals is available as Matteo Ricci, China in the Sixteenth Century: The Journals of Matthew Ricci, 1583-1610 (Louis
J. Gallagher trans., Random House 1953).
28 See, e.g., Voltaire, China, in Philosophical Dictionary (William F. Flemming trans., E.R. Dumont 1901), https://perma.cc/59NG-
JHB2.

29 Gottfried Wilhelm Leibniz, Vorwort zu Novissima Sinica, in Deutsche Denker über China 11 (Adrian Hsia ed., Insel Verlag 1985),
quoted in Gunther Löttes, China in European Political Thought, 1750-1850, in China and Europe: Images and Influences in Sixteenth
to Eighteenth Centuries 65, 66 (Thomas H.C. Lee ed., 1991).
30 For copyright reasons, the cartoon cannot be reprinted here; it can be seen at http://bit.ly/punchcartoon.
31 The man in question is Lord Palmerston (“Pam”), who was Prime Minister at the time and who had characterized the Chinese as
“a set of kidnapping, murdering, poisoning barbarians.” See Lawrence James, The Rise and Fall of the British Empire 177 (1994).
Britain was then engaged in the Second Opium War against the Qing Empire. As one reviewer of this Article astutely pointed out,
the standard Orientalist reading of the cartoon is complicated by the fact that Mr. Punch (standing to the right of Palmerston), who
in a sense represents England as much as Palmerston, is also short, ugly, and bandy legged. But it is not complicated very much. To
mock oneself is quite different from mocking the weaker.
32 Thomas Stephens, Order and Discipline in China: The Shanghai Mixed Court, 1911-27 (1992).
33 Id. at 5.
34 Id. at 6.
35 If Western courts really did adjudicate according to rigid codes regardless of particular circumstances, there would have been no
controversy over the issue of whether a murderer could inherit from the victim in the absence of a statute prohibiting such inheritance.
In fact, courts came out different ways, some barring inheritance. See Mary Louise Fellows, The Slayer Rule: Not Solely a Matter
of Equity, 71 Iowa L. Rev. 389 (1986). The seminal case, Riggs v. Palmer, 115 N.Y. 506 (1889), is extensively discussed in Ronald
Dworkin, Law's Empire (1986). As for the character of the adjudicators, see this three-part account of an astonishing kangaroo-court
regime in modern New York State: William Glaberson, In Tiny Courts of New York, Abuses of Law and Power, N.Y. Times (Sept. 25,
2006), https://nyti.ms/3cDAMSO; William Glaberson, Small-Town Justice, with Trial and Error, N.Y. Times (Sept. 26, 2006), https://
nyti.ms/3cCBpvB; William Glaberson, How a Reviled Court System Has Outlasted Critics, N.Y. Times (Sept. 27, 2006), https://
nyti.ms/2VQfriH.
36 Said's work was not, of course, itself without its own shortcomings. For a review critiquing it for overgeneralization and ahistoricity,
see David Kopf, Hermeneutics Versus History, 39 J. Asian Stud. 495 (1980).
37 See, e.g., Ruskola, supra note 18.
38 A December 8, 2017 search of Westlaw's “Law Reviews & Journals” database for articles using the term “orientalism” or “orientalist”
over the preceding decade yielded 506 hits. It is safe to assume that few if any of the references were complimentary.
39 For an example, see the Symposium cited supra note 1.
40 Bohannan, supra note 1, at 408.
41 Homi Bhabha, Interview with Homi Bhabha: The Third Space, in Identity: Community, Culture, Difference 207, 209 (Jonathan
Rutherford ed., 1990).
42 Teemu Ruskola, Legal Orientalism, 101 Mich. L. Rev. 179, 234 (2002).

43 Legrand, supra note 18, at 451. Legrand adds that “all that can be said to be ‘universal’ about law's singularity is that it cannot be
universal.” Id. at 453.
44 Ruskola, supra note 42, at 234.
45 Legrand, supra note 18, at 450.
47 Mirjan Damas̆ka, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986).
48 Id. at 199.
50 Id. at 64.
51 Teemu Ruskola, Law Without Law, or Is “Chinese Law” an Oxymoron?, 11 Wm. & Mary Bill Rts. J. 655, 666 (2003).
52 Id.
53 Max Gluckman, The Judicial Process Among the Barotse 357 (1973).
55 This presentation of Ruskola's argument would be unfair had he spent time constructing and defending a definition of law, but since,
for the reasons stated, he declares his lack of interest in doing so and does not in fact do so, I believe it is fair to object to his later
declaring, in effect, that China has it, since such a declaration necessarily involves a definition.
56 Janet E. Ainsworth, Interpreting Sacred Texts: Preliminary Reflections on Constitutional Discourse in China, 43 Hastings L.J. 273,
276 n.13 (1992).
57 Jerome A. Cohen, China's Changing Constitution, 1 Nw. J. Int'l L. & Bus. 57, 106 (1974) (emphasis added).
58 Ainsworth, supra note 56, at 281.
59 See Neil J. Diamant, What the (Expletive) Is a “Constitution”?! Ordinary Cadres Confront the 1954 PRC Draft Constitution, 2 J.
Chinese Hist. 169, 177 (2018).
60 The exact language, as far as we know, was, “I took part in the drafting of the xianfa, but even I don't remember what it says
(<<foreign language>>).” See Liu Zheng (<<foreign language>>), 1954-Nian Xianfa Shixing San Nian Hou Weishenme Bei Zhujian
Qifei (<<foreign language>>) [Why the 1954 Constitution Was Gradually Set Aside Three Years After Coming into Effect], 2002
Zhongguo Renda (<<foreign language>>) [Nat'l People's Congress China], no. 14, at 42, 43. The speech in which the quotation

appears is translated in Talks at the Beidaihe Conference (Draft Transcript) (August 17-30, 1958), in The Secret Speeches of Chairman
Mao: From the Hundred Flowers to the Great Leap Forward 397 (Roderick MacFarquhar, Timothy Cheek & Eugene Wu eds., 1989).
61 Ainsworth, supra note 56, at 290. Ainsworth goes on to say that “[h]igh Imperial China had no such foundational legal document
to serve as a charter of the monarchy,” implying the existence of another element of her definition of “constitution”: that it be a
charter for a political regime. Yet here we are faced with the same problem we faced in doing translations: does the Chinese xianfa
have the characteristics that would qualify it as a charter, as that word is generally understood? If one of those characteristics is that
it should actually function as a charter, then arguably it does not. As William Jones observed, “[t]he constitution seems to bear no
relation to the actual government of China.” William C. Jones, The Constitution of the People's Republic of China, 63 Wash. U. L.Q.
707, 710 (1985). See also Xin He, The Party's Leadership as a Living Constitution in China, 42 H.K.L.J. 73, 73 (2012) (“China's
constitution ... does not tell how the state actually operates.”).
62 See Taisu Zhang, Beyond Methodological Eurocentricism: Comparing the Chinese and European Legal Traditions, 56 Am. J. Legal
Hist. 195, 200 (2016) (discussing Zhu Suli's forthcoming work, The Constitution of Ancient China). Zhang is a professor at Yale Law
School; Zhu is a professor and former dean of the Beijing University Faculty of Law.
63 Id.
64 Id.
65 Ruskola, supra note 18. Ruskola's book has elicited considerable interest and thoughtful commentary in China. In 2017, the law
journal of Shanghai Jiaotong University published a symposium issue on the book. See Cheng Jinhua (<<foreign language>>), Lixing
Duidai Zhongguo de Wu Fa, You Fa, Fan Fa yu Chao Fa (<<foreign language>>), Rationally Approaching China's Non-law, Law,
Anti-law, and Supra-law], 2017 Jiao Da Faxue (<<foreign language>>) [Shanghai Jiaotong U. L. Rev.], no. 3, at 7; Lu Nan (<<foreign
language>>), Maixiang Dongfang Falü Zhuyi? (<<foreign language>>) [Marching Toward Oriental Legalism?], 2017 Jiao Da Faxue
(<<foreign language>>) [Shanghai Jiaotong U. L. Rev.], no. 3, at 24 [hereinafter Lu, Marching Toward Oriental Legalism?]; Ma
Jianyin (<<foreign language>>), “Xiangxiang” Tazhe yu “Xugou” Ziwo de Xueli Biaoda (<<foreign language>>) [The Theoretical
Exposition of the Imagined Other and the Constructed Self], 2017 Jiao Da Faxue (<<foreign language>>) [Shanghai Jiaotong U.
L. Rev.], no. 3, at 12; Wei Leijie (<<foreign language>>), Tuoshi Lijie Falü Dongfang Zhuyi Heyi Keneng (<<foreign language>>)
[How It Is Possible to Appropriately Understand Legal Orientalism], 2017 Jiao Da Faxue (<<foreign language>>) [Shanghai Jiaotong
U. L. Rev.]], no. 3, at 89; Zheng Ge (<<foreign language>>), Falü Diguo Zhuyi, Falü Dongfang Zhuyi yu Zhongguo de Fazhi
Daolu (<<foreign language>>) [Legal Imperialism, Legal Orientalism, and China's Road to Rule of Law], 2017 Jiao Da Faxue
(<<foreign language>>) [Shanghai Jiaotong U. L. Rev.]], no. 3, at 32 [hereinafter Zheng, China's Road to Rule of Law]. In 2018,
another law journal symposium contained the following contributions: Tian Feilong (<<foreign language>>), Dongfang Falü Zhuyi
yu Zhongguo Fa de Chongsu (<<foreign language>>) [Legal Orientalism and the Remodeling of Chinese Law], 2018 Shanghai
Zhengfa Xueyuan Xuebao (Fazhi Luncong) (<<foreign language>>) [J. Shanghai Pol. -Legal Inst. (Rule L.F.)], no. 2, at 21; Tian Lei
(<<foreign language>>), Xiang Luo Demu Jiaoshou Yiyang Zuo “Waiguo Fa”--Yuedu “Falü Dongfang Zhuyi” de Lingyizhong Silu
(<<foreign language>>) [Doing “Foreign Law” like Professor Ruskola: Another Way of Reading Legal Orientalism], 2018 Shanghai
Zhengfa Xueyuan Xuebao (Fazhi Luncong) (<<foreign language>>)) [J. Shanghai Pol. -Legal Inst. (Rule L.F.)]], no. 2, at 19; Wei
Leijie (<<foreign language>>), Dongfang Falü Zhuyi de Zhongguo Jinlu (<<foreign language>>) [The Progress of Legal Orientalism
in China], 2018 Shanghai Zhengfa Xueyuan Xuebao (Fazhi Luncong) (<<foreign language>>)) [J. Shanghai Pol. -Legal Inst. (Rule
L.F.)], no. 2, at 11; Zheng Ge (<<foreign language>>), Cong Zhongguo Fazhihua dao Fazhi Zhongguohua: “Falü Dongfang Zhuyi”
Gei Women de Qishi (<<foreign language>>) [From Legalizing China to Sinifying Law: Insights from Legal Orientalism], 2018
Shanghai Zhengfa Xueyuan Xuebao (Fazhi Luncong) (<<foreign language>>) [J. Shanghai Pol. -Legal Inst. (Rule L.F.)]], no. 2, at
17; Zhi Zhenfeng (<<foreign language>>), Xiang Shijie Gongxian Zhongguo de Falü Zhihui (<<foreign language>>) [Contribute
China's Legal Wisdom to the World], 2018 Shanghai Zhengfa Xueyuan Xuebao (Fazhi Luncong) (<<foreign language>>) [J. Shanghai
Pol. -Legal Inst. (Rule L.F.)], no. 2, at 14.
Other Chinese commentary includes: Jiang Haisong (<<foreign language>>), Mengdesijiu Zhongguo Falü Guan de Dongjian yu
Wudu (<<foreign language>>) [The Insights and Misreadings of Montesquieu's View of Chinese Law], 2017 Lanzhou Daxue Xuebao
(Shehui Kexue Ban) (<<foreign language>>) [J. Lanzhou U. (Soc. Sci.)], no. 3, at 76; Liang, supra note 17; Lu Nan (<<foreign

language>>), Gongneng Bijiao Fa de Wuyong yu Dongfang Zhuyi de Bianyi: Cong Luo Demu de “Falü Dongfang Zhuyi: Zhongguo,
Meiguo yu Xiandai Fa” Tanqi (<<foreign language>>) [The Misuse of Functional Comparative Law and Variations in Orientalism:
A Discussion Starting from Teemu Ruskola's Legal Orientalism: China, the United States, and Modern Law], 2017 Bijiao Fa Yanjiu
(<<foreign language>>) [Stud. Comp. L.], no. 6, at 187; Luo Xuegui (<<foreign language>>), Falü Dongfang Zhuyi Yujing Xia Dui
Chuangtong Zhongguo Fa Wufaxing de Fansi yu Bianjie (<<foreign language>>) [The Lawlessness of Traditional Chinese Law in
the Discourse of Legal Orientalism: A Reflection and Defense], 2018 Hunan Jingcha Xuanyuan Xuebao (<<foreign language>>) [J.
Hunan Police Acad.], no. 1, at 87; Zhang Jian (<<foreign language>>), Tazhe de Huanxiang: Zouchu Falü Dongfang Zhuyi de Luoji
Xianjing (<<foreign language>>) [The Illusion of the Other: Escaping the Logical Pitfalls of Legal Orientalism], 2018 Hubei Minzu
Xueyuan Xuebao (Zhexue Shehui Kexue Ban) (<<foreign language>>)) [J. Hubei Nationalities Inst. (Phil. & Soc. Sci.)], no. 4, at
59; Zhang Yongle (<<foreign language>>), Cong Shaiyide Dao Zhongguo: “Falü Dongfang Zhuyi” de Yizhong Dufa (<<foreign
language>>) [From Said to China: One Way of Reading Legal Orientalism], 2016 Zhongguo Falü Pinglun (<<foreign language>>)
[China L. Rev.], no. 4, at 173.
66 See, e.g., Cheng, supra note 65, at 9; Zheng, China's Road to Rule of Law, supra note 65, at 36; Lu, Marching Toward Oriental
Legalism?, supra note 65, at 27.
67 See Zheng, China's Road to Rule of Law, supra note 65, at 36.
68 See id. at 40.
69 See Liang, supra note 17. One might very plausibly say the same thing about “Western” societies, of course, but my sense is that
Liang intends here to draw a distinction. It is possible I have misunderstood him.
70 Cheng, supra note 65, at 9.
71 E.g., Ruskola, supra note 18, at 31; Laws of the Postcolonial 10 (Eve Darian-Smith & Peter Fitzpatrick eds., 1999).
73 For a critique of “ontological Orientalism in reverse”--the view that agrees with the Orientalists that there is a fundamental distinction
between East and West, but holds the East to be superior--see Sadiq Jalal al-‘Azm, Orientalism and Orientalism in Reverse, in
Forbidden Agendas: Intolerance and Defiance in the Middle East 349 (Jon Rothschild ed., 1984).
75 Ironically, Ruskola does not seem to shy away from embracing a concept of “contract as such.” In a reference to an article on Han
dynasty contracts by Hugh Scogin, he calls it “an article on ancient Chinese ‘contract law,”’ and states that the analysis of the article
makes “quite evident the need for [the] scare quotes” that he (Ruskola) has added. See id. at 34. Clearly you do not add scare quotes
unless you have a conception of what real contract law is, and believe that ancient Chinese law did not have it. There is nothing
per se objectionable about taking such a position, but it is the kind of position that anti-Orientalists seem always to be declaring
objectionable. Even more ironically, the whole thrust of the article in question is that scare quotes are not needed. Scogin specifically
addresses the question of whether to use them when he speaks of contracts and contract law in the Han dynasty, and makes a conscious
choice not to do so. See Hugh T. Scogin, Jr., Between Heaven and Man: Contract and the State in Han Dynasty China, 63 S. Cal.
L. Rev. 1325, 1338 (1990).
76 John Gardner, Law in General, in Law as a Leap of Faith: Essays on Law in General 270, 279 (2012).

77 Id. at 36 (citing Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57, 109 (1984)).
78 A.W.B. Simpson, A History of the Common Law of Contract 5-6 (1975).
79 Id. at 6 (emphasis added).
80 Id.
81 The term was apparently coined by Gerhard Casper when he was the dean of the University of Chicago Law School. The idea is that
“[l]ots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of
horses, or with the care veterinarians give to horses or with prizes at horse shows”: Frank Easterbrook, Cyberspace and the Law of
the Horse, 1996 U. Chi. L.F. 207, 207. Nevertheless, nobody imagines that there is a unifying “Law of the Horse” behind them.
82 Grant Gilmore, The Death of Contract 9 (Ohio State Univ. Press 1995) (1974).
83 Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition 49 (1983).
84 One reviewer of this Article objected that anti-Orientalists such as Ruskola readily agree that China has no giraffes, citing his statement
that “it seems beyond argument--tautological, in fact--that China does not have rule-of-law in the Anglo-American sense of the term.”
Ruskola, supra note 18, at 58. But note Ruskola's qualification. In the language of my metaphor, Ruskola is not agreeing that China
has no giraffes. He is agreeing that China has no giraffes in the Kenyan sense of the term. I do not mean at all to suggest that Ruskola's
views on Chinese law are as silly as this view of biology, and offer the analogy only to clarify my point. To speak of “rule-of-law in
the Anglo-American sense of the term” necessarily presupposes a non-Anglo-American sense of the term, just as to speak of “giraffe
in the Kenyan sense of the term” presupposes a giraffe in some other sense--perhaps something resembling a panda.
85 Id. at 40.
86 It is worth noting here that even if a negative value judgment is involved, that is not necessarily Orientalist. Consider the extensive
debate over whether Nazi Germany could be said to have had law, begun by Gustav Radbruch, see Gustav Radbruch, Statutory
Lawlessness and Supra-Statutory Law, 26 Oxford J. Legal Stud. 1 (2006) (translation of Gustav Radbruch, Gesetzliches Unrecht und
übergesetzliches Recht, 1 Süddeutsche Juristen-ZeitungG 105 (1946)), and continued in the famous Hart--Fuller debate, see H.L.A.
Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958); Lon L. Fuller, Positivism and Fidelity to Law: A
Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958); see generally Symposium, The Hart-Fuller Debate at Fifty, 83 N.Y.U. L. Rev.
993 (2008). In Radbruch's view, “[w]here there is not even an attempt at justice, where equality, the core of justice, is deliberately
betrayed in the issuance of positive law, then the statute is not merely ‘flawed law.’ It lacks completely the very nature of law.”
Radbruch, supra, at 7. And he applied that judgment to what purported to be the law of the Third Reich. Others such as Hart disagreed.
But nobody in the debate suggested that it was morally illegitimate, or an arrogant imposition of personal values, for Radbruch to
argue as he did. For two illuminating discussions of role of law (if it may be called that) in the Third Reich, see the classic Ernst
Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (1941), and a recent brilliant meditation on that volume, Jens
Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (2018).
87 Ruskola, supra note 18, at 4. As Professor Ruskola is prominent both as an anti-Orientalist and as a scholar of Chinese law, his work
will get what may seem disproportionate attention in this Article. I have been and remain a great admirer of Professor Ruskola's work
and have learned a great deal from it.
88 See Science and Civilization in China Series, Needham Research Inst., www.nri.cam.ac.uk/science.html (last visited Feb. 20, 2020).

89 Simon Winchester, The Man Who Loved China: The Fantastic Story of the Eccentric Scientist Who Unlocked the Mysteries of the
Middle Kingdom (2008).
90 2 Joseph Needham, Science and Civilization in China 290 (1956). See also id. at 572-74.
91 Stephens, supra note 32.
92 Alice Erh-Soon Tay, Law in Communist China (pts. 1 & 2), 6 Sydney L. Rev. 153, 335 (1969-1971); Alice Erh-Soon Tay, “Smash
Permanent Rules”: China as a Model for the Future, 7 Sydney L. Rev. 400 (1976). See also Alice Erh-Soon Tay, The Struggle for
Law in China, 21 U.B.C. L. Rev. 561 (1987).
93 William C. Jones, Studying the Ch'ing Code--the Ta Ch'ing Lü Li, 22 Am. J. Comp. L. 330, 331, 334 (1974). I disagree with Jones
on this point.
94 Li Chen, Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the “Lady Hughes” Controversy in
1784, 27 Law & Hist. Rev. 1 (2009).
95 Id. at 2.
96 Id. at 3.
97 Frederic E. Wakeman, The Canton Trade and the Opium War 190 (1992), cited in Chen, supra note 94, at 48.
98 To be sure, one can arguably find this view in a vague and abstract form in the Qing and before. But that was not the usual practice.
See M.J. Meijer, An Aspect of Retribution in Traditional Chinese Law, 66 T'oung Pao 199, 199 (1980) (“It is generally known that
the codes of the Ming (1368-1644) and the Ch'ing (1644-1911) dynasties abound in rules which demand sentences of death for a
great number of crimes, but it is also common knowledge that in many of those provisions only lip service is paid to the principle of
strict retribution, when the offender's life was taken in exchange for the life of the victim which he took.”). Jennifer Neighbors writes
that during the Qing, “monetary redemption was available to all persons found guilty of accidental killing.” Jennifer M. Neighbors,
Guoshi Killing: The Continuum of Criminal Intent in Qing and Republican China, 40 Mod. China 243, 246 (2014). The cases of
accidental homicide described in two works of Chinese legal history suggest that in most cases the defendant was not executed.
See Derk Bodde & Clarence Morris, Law in Imperial China 338-43 (1967); Guy Boulais, Manuel du Code Chinois 567-68 (Ch'eng
Wen Publ'g 1966) (1924). Ernest Alabaster lists several cases apparently going the other way, but it is not clear from his description
whether the death sentences were actually carried out. See Ernest Alabaster, Notes and Commentaries on Chinese Criminal Law and
Cognate Topics with Special Relation to Ruling Cases with a Brief Excursus on the Law of Property 288-92 (1899).
99 Chen, supra note 94, at 15.
100 See Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice & Transcultural Politics 1-2 (2016).
101 See Chris Hogg, British Anger at China Execution, BBC News (Dec. 29, 2009), https://perma.cc/D647-VDE9.
102 Chen, supra note 100, at 2.

103 See Prime Minister Gordon Brown's Fury as Beijing Executes Brit over Drugs, The Mirror (Dec. 30, 2009_, https://perma.cc/G8YQ-
CMYK.
104 I say “possible” because it is it is not clear whether he has been executed yet. My understanding is that his case was under review at
the Supreme People's Court for several years. All death sentences in China are subject to Supreme People's Court review, and there
is no limit on how long it can take.
105 See Patrick Boehler, German Sentenced to Death in China for Double Murder of Ex-girlfriend and Her Partner, S. China Morning
Post (Aug. 21, 2014), https://perma.cc/9Q48-L6WC. One reviewer of this Article suggested that in lobbying against the death penalty
for a German citizen but not for Chinese citizens, the German government was valuing human lives differently along traditional
Orientalist principles. I do not find this suggestion plausible. To value the lives of citizens over noncitizens is standard practice for
virtually every national government in the world; are they all to be condemned as Orientalist? Moreover, were the failure to lobby for
individual Chinese driven by Orientalism, we would expect to see the German government regularly lobbying against the execution
of citizens of countries deemed Western, but in general we do not.
106 See Isaac Stone Fish, Why China Executed a Mentally Ill Briton, Newsweek (Jan. 3, 2010), https://perma.cc/49EM-87MC.
107 See generally Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and
Japan (2012); Pär Cassel, Extraterritoriality in China: What We Know and What We Don't Know, in Treaty Ports in Modern China:
Law, Land and Power 23 (Robert A. Bickers & Isabella Jackson eds., 2016).
108 See Ruskola, supra note 18, at 205.
109 Id. at 205.
110 See id. at 206.
111 See Donald C. Clarke, China's Legal System and the WTO: Prospects for Compliance, 2 Wash. U. Global Stud. L. Rev. 97, 111 (2003)
( “[T]he WTO does not mandate a perfect legal system, or even a basically fair one, outside of a few specific areas,” and “[i]t is hard to
see a strong mandate here for institutional reforms.”). The article on which Ruskola relies, by Julia Qin, does not make such a strong
claim as Ruskola. See Julia Ya Qin, “WTO-Plus” Obligations and Their Implication for the World Trade Organization Legal System:
An Appraisal of the China Accession Protocol, 37 J. World Trade 483 (2003). Qin does list some obligations assumed by China that
were not required of other new WTO members. Those most relevant to China's domestic legal system are ones of transparency (the
requirement that only public rules be enforced), notice and comment periods for trade-related legislation, the obligation to respond
to information inquiries, the obligation to provide translations of WTO-relevant laws and regulations, and the obligation to provide
independent judicial review of administrative actions. This is not the place to go into a detailed discussion of how significant any of
these are, whether they were justified, and the degree to which China has actually fulfilled them. Suffice it to say that I do not think Qin
can be fairly read as concluding that they constitute a requirement that China alter its legal institutions to comply with North Atlantic
standards. Certainly, China did not actually do so, and no complaints have been brought against it at the WTO for its failing to do so.
112 Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 41.5, Apr. 15, 1994, Marrakesh Agreement Establishing
the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.
113 See, e.g., Nga Kit “Christy” Tang, The WTO's Impact on China: A Battle of Administrative Review Settings Between Internal and
External Regulatory Frameworks, 10 Vienna J. Int'l Const'l L. 251, 252, 273 (2016) (finding that China's system of administrative
review is inconsistent with that expected of WTO members, and that in this area China has “not [been] affected by the WTO yet”).

114 I hope it will be clear by now that any common term arrived at before the inquiry is bound to prejudice the outcome in certain ways.
115 Stephens, supra note 32.
116 See Ruskola, supra note 18, at 193-94.
117 See Bohannan, supra note 1, at 408.
118 David H. Fischer, Historians' Fallacies: Toward a Logic of Historical Thought 203 (1970). See also Geertz, supra note 14, at 272
passim (criticizing concepts of a universal “underlying structure” of human nature and of a “tendency to see diversity as surface and
universality as depth”).
119 William C. Jones, Introduction to The Great Qing Code 1, 18-19 (William Jones trans., Clarendon Press 1994).
120 See Lydia H. Liu, The Clash of Empires 124-31 (2004). See also Deborah Cao, On the Universality of “Rights”: Absence and Presence
of “Rights” in the Chinese Language, 14 Intercultural Pragmatics 277 (2017) (arguing that classical Chinese language and culture did
not have an equivalent word or concept for the English word “rights”); Dan Fenno Henderson, Japanese Influences on Communist
Chinese Legal Language, in Contemporary Chinese Law: Research Problems and Perspectives 158, 167 (Jerome A. Cohen ed., 1970).
121 Geoffrey K. Pullum, Newt Gingrich: Whorfian Theorist, Language Log (May 14, 2013), https://perma.cc/WFS6-BEKE. See generally
Barbara C. Scholz, Francis Jeffry Pelletier & Geoffrey K. Pullum, Philosophy of Linguistics § 4.4, in Stanford Encyclopedia of
Philosophy, https://perma.cc/N2S5-9A69 (rev. Jan. 1, 2015) (“Strong and Weak Whorfianism”).
122 See Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), aff'd sub nom. Newman v. Alabama, 559 F. 2d 283 (5th Cir. 1977), rev'd in
part sub nom. Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam). See generally Larry W. Yackle, Reform and Regret: The Story
of Federal Judicial Involvement in the Alabama Prison System (1989); Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374
(1982). Note also that it does not happen very often. See, e.g., Yarls v. Bunton, 231 F. Supp. 3d 128, 132 (M.D. La. 2017) (finding
that funding for public defense in Louisiana was unconstitutionally inadequate, but declining to “become the overseer of the Orleans
Parish criminal court system, a result explicitly condemned by the United States Supreme Court”).
123 See Jones, supra note 119, at 9 (“Our law has grown outward, as it were, from the concerns of individuals or ‘persons.’ It fulfills
large social purposes, but it does so indirectly by dealing with the affairs of individuals, largely from their points of view. ... In China,
precisely the reverse was the case. The state promulgated laws to make sure its interests were advanced. As this was done, the interests
of individuals were often protected as an indirect result.”). See also Jones, supra note 93.
124 See Stephens, supra note 32, at 88.
125 Benjamin Liebman, A Return to Populist Legality Historical Legacies and Legal Reform, in Mao's Invisible Hand 165, 174 (Elizabeth
Perry & Sebastian Heilmann eds., 2011).
126 Id. at 177.
127 Id. at 178.

128 See Zuigao Fayuan Yuanzhang Tan Sixing Yiju Yinfa Zhengyi (<<foreign language>>) [Supreme People's Court President Discusses
Basis for Death Penalty, Stirs up Controversy], Caixin (<<foreign language>>) [Fin. News] (Apr. 11, 2008), https://perma.cc/6QFB-
TXF6.
129 See Zhou Bin (<<foreign language>>), Zui Gao Fa: Quebao Xing An Caipan Jieguo Zuida Xiandu Jiejin Shehui Yuqi (<<foreign
language>>) [Supreme People's Court: Ensure that Judgments in Criminal Cases Are as Close as Possible to Social Expectations],
Fazhi Ribao (<<foreign language>>) [Legal Sys. Daily] (July 26, 2017), https://perma.cc/CXD2-S7NP.
130 Kwai Hang Ng & Xin He, Embedded Courts: Judicial Decision-Making in China 120 (2017) (emphasis added) (citations omitted).
131 See Richard Posner, Law, Pragmatism, and Democracy (2003).
132 Richard Posner, The Federal Judiciary: Strengths and Weaknesses, at x (2017).
133 Id. at 82.
134 Joel Cohen, Richard A. Posner & Jed S. Rakoff, Should a Judge Rely on the Law or His Own Common Sense?, Slate (Sept. 18,
2017), https://perma.cc/5LZQ-G2XH. No judge could possibly be criticized for declining to apply law “that doesn't actually govern
the case at hand.”
135 For an excellent treatment in English, see Flora Sapio, Shuanggui and Extralegal Detention in China, 22 China Info., no. 1, at 7
(2008). “Double designation” comes from the fiction that the person investigated is instructed to present himself for questioning at
a designated time and place. Shuanggui could in theory involve questioning without coercive detention, and perhaps at times is like
that. In this Article, however, by shuanggui I mean coercive shuanggui.
136 See Lifa Fa (<<foreign language>>) [Law on Legislation] (promulgated by the Standing Comm. Nat'l People's Cong., Mar. 15, 2000,
effective July 1, 2000), art. 8, 2000 Standing Comm. Nat'l People's Cong. Gaz. 112, https://perma.cc/XQ95-AMYE.
137 On March 20, 2018, the Law on Supervision came into effect. See Jiancha Fa (<<foreign language>>) [Law on Supervision]
(promulgated by the Nat'l People's Cong., Mar. 20, 2018, effective Mar. 20, 2018), 2018 Standing Comm. Nat'l People's Cong. Gaz.
147, https://perma.cc/CJ9C-6FWJ, translation at China Law Translate, http://bit.ly/jianchafa. This law was in effect designed to
give proper legal sanction to shuanggui procedures, and that is essentially all it does. It does not provide for meaningful procedural
protections. See Jamie P. Horsley, What's So Controversial About China's New Anti-corruption Body?, The Diplomat (May 30, 2018),
https://perma.cc/SL2T-3Q6A.
138 Liu Hui (<<foreign language>>) & Wei Xiaoxiao (<<foreign language>>), Guanyu “Shuanggui” de Falixue Sikao (<<foreign
language>>) [A Jurisprudential Contemplation of “Shuanggui”], 2007 Fazhi yu Shehui (<<foreign language>>) [Law & Soc'y], no.
1, at 665, 665.
139 Wang Jingui (<<foreign language>>), “Shuanggui” yu Zishou: Hexianxing Wenti Yanjiu (<<foreign language>>) [“Shuanggui” and
Voluntary Surrender: A Study of the Issue of Constitutionality], 2005 Faxue (<<foreign language>>) [Jurisprudence], no. 8, at 62, 62.
Finding it unconstitutional makes it more acceptable, since the constitution is not really binding and everyone knows that, whereas
finding it a criminal violation raises the stakes.

140 See, e.g., Sapio, supra note 135; Maureen Fan, Chinese Official Is Dismissed in Pension Scandal, Wash. Post, Sept. 26, 2006, https://
perma.cc/SZ2Y-TBN6 (American journalist); Li Qiyan, CNTIEC Official Held for Nuclear Bid Leaks, Caijing (Oct. 14, 2008), https://
perma.cc/9WRL-Q7CN (Chinese journalist).
141 Even Donald Trump has acknowledged the importance of legality. In comments on the March 2016 Brussels bombings, he was quoted
as saying, “Frankly, the waterboarding, if it was up to me, and if we changed the laws or had the laws, waterboarding would be fine. If
they could expand the laws, I would do a lot more than waterboarding.” See Scott Stump, Donald Trump: Brussels Is “Catastrophic,”
Waterboarding Paris Suspect “Would Be Fine,” Today (Mar. 22, 2016), https://perma.cc/V5Z7-MDF3.
142 I am not going to get into needless debates by saying “the West” here. First, the term is much too broad, and sets up an unnecessary and
possibly invidious distinction between Them and Us. Second, recent political developments in some countries most would consider
part of “the West” suggest that at least some politicians may indeed feel able to openly renounce playing the game. The point is that
there are meaningful differences between sociopolitical orders; where they are located is unimportant.
143 I take this to be Liang Zhiping's point when he argues that the simple binary of lawful/unlawful is inadequate for China, and suggests
categories such as unlegal, nonlegal, and extralegal. See supra note 69 and accompanying text.
145 See Giorgio Agamben, State of Exception (Kevin Attell trans., Univ. of Chicago Press 2005). The state of exception as discussed by
Schmitt and Agamben is not what we are observing in the phenomenon of shuanggui. While it shares the element of extralegality,
shuanggui does not share the element of exceptionality. Shuanggui and similar institutions and practices are a regular and everyday
part of the functioning of the Chinese order system. For an excellent recent collection of essays on Schmitt, see The Oxford Handbook
of Carl Schmitt (Jens Meierhenrich & Oliver Simons eds., 2016).
146 See, e.g., Randall Peerenboom, China's Long March Toward Rule of Law 422 (2002) (referring to “the immaturity of the legal
system”). I do not mean to criticize Peerenboom here by seizing on his use of a single word in a book of several hundred pages.
It is nearly impossible to avoid using these kinds of metaphors, and no doubt I have done so myself. If one is willing to make the
affirmative argument (as opposed to the a priori assumption) that the Chinese legal system as it now exists is in fact an immature
version of something else, then of course the metaphor is perfectly appropriate.
147 See the parade of authors cited by Stephens in Stephens, supra note 32, at 8-10.
148 A possible exception is Flora Sapio, Sovereign Power and the Law in ChinaA (2010).
149 I discuss this problem more fully in Donald C. Clarke, Puzzling Observations in Chinese Law: When Is a Riddle Just a Mistake?, in
Understanding China's Legal System 93 (C. Stephen Hsu ed., 2003).
150 Ronald Dworkin, Hart and the Concepts of Law, 119 Harv. L. Rev. F. 95, 97-98 (2005).
151 See generally Barry Naughton, The Chinese Economy: Adaptation and Growth ch. 16 (2018).
152 See World Bank, Exports of Goods and Services (Current US$)), https://perma.cc/9G6K-BF3F (last visited Mar. 6, 2020).
153 See World Bank, GDP (Current US$)), https://perma.cc/RJ23-9FZB (last visited Mar. 6, 2020) (GDP figures); World Integrated Trade
Solution, China Trade Statistics, https://perma.cc/M4GS-ABP8 (last visited Mar. 6, 2020) (Chinese trade figures for 2018); Zhongguo

Maoyi Waijing Tongji Nianjian 2017 (<<foreign language>>) [Statistical Yearbook of China's Trade and Foreign-Related Economic
Activity] 512, Table 6-2 (2017), https://perma.cc/2NGZ-3CA3 (Chinese trade figures for 1979).
154 See The Complete List of Chinese ADRs, Top Foreign Stocks, https://perma.cc/3H5Z-BHTU (last visited Mar. 6, 2020). This figure
includes companies that are run by Chinese nationals and operate primarily in China, but are incorporated outside of the PRC mainland.
155 See Niall McCarthy, The Countries with the Most Native-Born People Living Abroad, Forbes (Jan. 15, 2016), https://perma.cc/V2PT-
SP3U. This number must be understood to be very approximate. Moreover, not all Chinese-born persons living abroad remain citizens
of China.
156 See Kate Mather & Cindy Chang, An L.A. Triple-Murder Suspect Was Tried in China, and His Case Could Open the Door for Similar
Prosecutions, L.A. Times (May 5, 2018), https://perma.cc/G4P6-3X9C; Kate Mather & Cindy Chang, American Crimes, Chinese
Trials: Here's How It Works, L.A. Times (May 5, 2018), https://perma.cc/T94L-4DYM.
157 See Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. 390, 403 (2017).
158 I say “supposed to” because although the Supreme Court has stated that the doctrine is to be applied “rarely” (Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 508 (1947)), federal judges appear to grant motions to dismiss on FNC grounds roughly half the time. See
Gardner, supra note 157, at 396 n.33 (discussing studies).
159 I am grateful to an anonymous reviewer for raising this question.
160 This was precisely the claim of Professor Shen Sibao in his expert opinion on behalf of the Chinese defendants in the case of In re
Vitamin C Antitrust Litigation. See Report of Professor Shen Sibao, Feb. 19, 2009, In re Vitamin C Antitrust Litig., 2009 WL 5133512
(E.D. N.Y.) (No. 06MD01738). That case ultimately went to the Supreme Court as Animal Science Products, Inc. v. Hebei Welcome
Pharmaceutical Co., 138 S. Ct. 1865 (2018).
68 AMJCL 55
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ANTI ANTI-ORIENTALISM, OR IS CHINESE LAW DIFFERENT?, 68 Am. J. Comp. L.

American Journal of Comparative Law

*55 ANTI ANTI-ORIENTALISM, OR IS CHINESE LAW DIFFERENT?d1

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I. Orientalism And Anti-Orientalism

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II. How Does Anti-Orientalism Operate?

A. The Denial of Difference

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C. Susceptibility to Attractive Narratives

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III. What Does It Mean to Say that China Is “Different”?

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He then moves on to present-day China:

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3 See, e.g., Symposium, Law and Orientalism, 7 J. Comp. L. 1 (2012).

5 The work of various professors will be discussed in this Article.

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14 Clifford Geertz, Anti Anti-Relativism, 86 Am. Anthropologist 263 (1984).

15 Recollections of Wittgenstein 157 (Rush Rees ed., 1984).

16 Edward Said, Orientalism (1979).

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24 See Joshua Cooper Ramo, The Beijing Consensus 4 (2004).

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37 See, e.g., Ruskola, supra note 18.

39 For an example, see the Symposium cited supra note 1.

40 Bohannan, supra note 1, at 408.

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44 Ruskola, supra note 42, at 234.

45 Legrand, supra note 18, at 450.

46 Bohannan, supra note 1, at 409.

49 Ruskola, supra note 18, at 14.

54 Bohannan, supra note 1, at 411.

58 Ainsworth, supra note 56, at 281.

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68 See id. at 40.

70 Cheng, supra note 65, at 9.

72 Ruskola, supra note 18, at 22.

74 Ruskola, supra note 18, at 21.

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78 A.W.B. Simpson, A History of the Common Law of Contract 5-6 (1975).

79 Id. at 6 (emphasis added).

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91 Stephens, supra note 32.

99 Chen, supra note 94, at 15.

102 Chen, supra note 100, at 2.

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108 See Ruskola, supra note 18, at 205.

109 Id. at 205.