A new paper by Samuli Seppänen
European and American comparative lawyers’ engagement with so-called “radically different” legal systems has generated much introspection and methodological controversy among comparative lawyers. Is it possible to truly understand “radically different” foreign law? Can one understand foreign law through translations? What right do comparatists have to write about areas of law which are outside their field of expertise, in the first place? Similar questions have long been raised in comparative law, but they have gained new momentum as American and European comparatists have begun to examine “non-Western” legal systems.
Yet, there remains a striking asymmetry in how such questions are conventionally posed. While many American and European comparatists have expressed concerns about intercultural comparisons, few studies have examined whether the experience of “radical difference” and its side effects—self-doubt, suspicion of cultural bias, and feelings of inadequacy—affect comparative lawyers in “radically different” legal cultures, such as China.
My article “After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law” (free draft) examines perceptions of difference in Chinese comparative law. I seek to demonstrate that labelling foreign law as “different” or “similar” carries different political implications in China than in liberal democratic societies, such as Britain and the United States. China’s governing Communist Party sees the promotion of Western constitutional democracy as an “attempt to undermine the current leadership and the socialism with Chinese characteristics.” The Chinese leadership has also instructed legal scholars and other social scientists to develop original theories based on China’s practical conditions.
In this political climate, an emphasis on “similarity” in comparative legal scholarship often coincides with a willingness to adopt liberal legal and political reforms, whereas a conspicuous preference for “difference” implies resistance to such reforms. A legal institution that is described as foreign, and yet familiar, can be more easily advanced in China than a legal institution that can never be “truly” understood or one that is portrayed as being “radically” different from Chinese law.
Comparative law has also supported mainstream legal scholars who try to find a middle ground between conservative socialism and devotional liberalism. A comparative law focus on the social purposes of legal institutions, for instance, has allowed Chinese comparatists to denounce politically sensitive foreign legal institutions—such as the judicial review of legislation—which supposedly serve the idiosyncratic purposes of Western societies, while at the same time endorsing and advocating politically less controversial legal reforms.
To be sure, there are many nuances in Chinese comparative law. An emphasis on difference can be a liberal strategy, whereas arguments about similarity have been used to resist legal and political reforms. It is also true that many Chinese comparatists are sufficiently familiar with American and European law so as not to experience them as exotic. The question of (radical) difference and similarity also relates to Chinese legal scholars’ professional identity and worldview. Whereas American and European comparatists may view Chinese comparatists (and indeed, all students of Chinese law) as being on the margins of their discipline, Chinese mainstream comparatists are committed to learning and understanding foreign law. This attitude is not limited to Chinese studies of European and American law, but it can also be seen in some Chinese research on non-European legal systems, such as Hindu law.
Finally, the larger argument of my Article is that statements about difference and similarity—and attitudes towards understanding, in general—should be understood in light of the individual scholar’s ideological project. There is no ideologically innocent way to relate to foreign legal systems either in China or abroad. Scholars who encounter legal systems that at first seem difficult or even impossible to “understand” would do well to remember that difference and similarity are matters of perception—and, it would appear, not the most fruitful theoretical basis for legal research.
Find Samuli Seppänen’s free draft of “After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law” here. He is an Associate Professor at the Chinese University of Hong Kong. His research focuses on legal and political thought in China and developmental aspects of international law. Reach out to him at sseppanen(at)cuhk.edu.hk.