Legal Orientalism

Written by Ella Jewell

Laws all have the same end: Enforce justice and support a well-run society. However, in the field of international and comparative law, we find that sets of laws come in hierarchy: the United States takes precedence, western European countries’ are a close second, and laws in developed Asian nations are sub-par. This article stands to detail the history of this view- which is called legal orientalism- and critique it, as well as explain why it is harmful and what the western world can learn from Asian legal systems.

Starting with some definitions, legal orientalism was popularized by Penn law professor Teemu Ruskola in his book by the same name [1]. According to a review of the book, legal orientalism is “a series of assumptions and perspectives with respect to the Chinese legal system, beginning from the premise that the West has law, but China does not. Legal orientalism comprises ‘a set of inter-locking narratives about what is and is not law, and who are and are not its proper subject’.”[2] The assumption fleshed out in the rest of the book is that China lacks law and subjects there are thus less respectable. This is not to say that scholars are delusional people ignoring the fact that every Chinese dynasty had civil codes and that China even now has a four-level court system with over 3,000 operating courts today [3]. The underlying view is that Chinese law is overly punitive with criminals and does not serve to regulate society as a whole, and that Chinese legal systems are often dismissed as “barbaric” or lacking legitimacy in international and comparative contexts; ; thus it is not real “law” in the sense of the justice system which keeps society in place.

Orientalism itself is not a new idea, with doctrinal roots in the 20th century scholar Edward Said’s works. Said's work focused on how European discourse and scholarship positions the “East” (read: Asia) as subordinate to European domination, exotic and backward, and subservient with a need for ‘civilizing forces’ from the “West” (read: Western Europe and the U.S.). [4] This narrative is pervasive in media as white characters swoop in to save the day in the ‘wild East’ a la Indiana Jones, and is in many insidious stereotypes such as that of the “mail order bride” from the Philippines or Vietnam or the ‘Arab jihadist’ found in movies and news media even today. In legal discourse, similar reductive stereotypes persist.  Consider the depiction of a ‘totalitarian, brutal Chinese Communist Party’ or the ‘conformist Asian culture’ that needs no laws to function smoothly. While these are major exaggerations, legal scholars and regimes often lean into the stereotypes’ subtle forms, perpetuating the biases that shape perceptions of non-Western legal systems

Let’s examine how legal orientalism manifests across various national contexts:
Not only in legal scholarship has legal orientalism been the norm, but also laws that uphold orientalist views count as legal orientalism in a different sense.s a review of Professor Ruskola’s work explains: “In terms of legal Orientalism in the United States, the Chinese exclusion movement in the 19th century is undoubtedly representative. The movement was special for the involvement of the masses as well as the authority, ultimately leading Congress to pass a series of Chinese Exclusion Laws and numerous judicial decisions, which implied legal Orientalism as a kind of discourse.” [5] However, the United States is far from the only practitioner of legal orientalism
The case of Taiwan illustrates an interesting example as the ‘westernized’ imperialism of Japan subordinated the island country in the 20th century.Some scholars argue that Japan’s imposition of its legal system amounted to legal orientalism. At this time, Taiwan was predominantly populated by Chinese immigrants and various indigenous groups, whom were all looked down upon by the expansionist regime as less civilized, and especially inferior due to the lack of westernization in their societies at the time [6]. Thus, by imposing its newly minted Western-inspired legal system, Japan enacted  acts of both colonialism and legal orientalism on Taiwan.

At the end of the day, legal orientalism is problematic because it not only discounts legal traditions that deserve respect but also dehumanizes the groups in being criticized throughout the world. Hope is not lost, though, and there are several solutions that individuals, academia, and the legal sphere can employ to extinguish orientalist views. The first is engaging with primary sources, whether it be for learning about the history and traditions of a given country or when reading about legal issues there. Sources published by authors native to the area in question, whether it be China, Taiwan, or other regions, are likely to contain fewer stereotypes and more facts. Additionally, starting dialogues with legal professionals from these countries in our institutions is essential for getting a correct view of what is happening on the ground. Finally, challenging the constitutionality of discriminatory laws or practices in court would be one of the strongest forms of anti-orientalism. Finally, in any setting, it is essential to open your mind and be willing to leave behind any harmful stereotypes (no matter how academic-seeming they may be) behind and learn from voices and traditions that are different from your own.

Works Cited
[1] Teemu Ruskola, Legal Orientalism, 101 MICH. L. REV. 179 (2002). https://repository.law.umich.edu/mlr/vol101/iss1/4.
 
[2] Stern, Rachel. "Legal Orientalism or Legal Imperialism?" ResearchGate, December 2015. https://www.researchgate.net/publication/287414815_Legal_Orientalism_or_Legal_Imperialism.
 
[3] Federal Judicial Center. “Country Profile: China.” Judiciaries Worldwide. https://judiciariesworldwide.fjc.gov/country-profile/china#:~:text=China%20has%20a%20unified%20court,cases%20from%20their%20territorial%20designations.
 
[4] Bok, Patrick. "Orientalism: Edward Said's Groundbreaking Book Explained." The Conversation, February 6, 2023. https://theconversation.com/orientalism-edward-saids-groundbreaking-book-explained-197429.

[5] Merry, Sally Engle. "Transnational Human Rights and Local Activism: Mapping the Middle." American Anthropologist 108, no. 1 (2006): 38–51. https://www.jstor.org/stable/43669521.

[6] de Lisle, Jacques. “The Rule of Law with Chinese Characteristics: Prospects and Limits.” SSRN, June 1, 2016. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2778978.