Relations between China and the United States have rarely been easy. From the unequal treaties of the nineteenth century to China’s World Trade Organization (WTO) accession at the turn of this past century, the world’s two largest economies have been allies, enemies, “strategic partners,” “strategic competitors,” and “equal partners,” among others.1 As we navigate a host of present challenges—from cybersecurity to trade, from intellectual property to maritime law—how do we understand this relationship? What lessons can the past two centuries of Sino-American relations teach us about how to interact in the present? Professor Jedidiah Kroncke provides partial answers to these pressing questions with an erudite history of U.S.–China legal relations. Kroncke’s provocative thesis can be briefly summarized as follows: America’s optimistic attempts to influence Chinese legal development have failed. The source of America’s blind faith in its own legal system—and its exportability—stems from a missionary mentality that seeks to save China from a parade of social ills: feudalism, corruption, misogyny, poverty, and communism. Kroncke also shows how the missionary mentality later infiltrated U.S. foreign policy, and specifically American support for legal reform efforts in China. Finally, the United States has failed to learn enough about China, and foreign legal systems more generally, to correct these policy failures. Even now, American educators, lawyers, and other professionals continue to promote American law to guide Chinese development, despite Kroncke’s repeated admonitions about the “failure of American legal export efforts.”2 At the same time, many Americans discount the possibility of learning from foreign models, betraying a cosmopolitan spirit that guided this nation’s founding centuries ago. Professor Kroncke illuminates American and European encounters with China with an impressive historical sweep. The book begins with a brief tour of America’s founders, who expressed admiration for certain aspects of Chinese governance, though not necessarily Chinese law.3 From here, Kroncke turns to the differing depictions of China among European and American missionaries. In Europe, seventeenth- and eighteenth-century Jesuit missionaries depicted China as stable and orderly, an idealized mirror image of chaotic Europe.4 By the nineteenth century, however, European perspectives had dimmed, and French and English representations of the Chinese legal system focused on its arbitrariness, corruption, and use of torture. In the United States, the founders’ hazy idealization of China gave way to a missionary view that emphasized both the amorality of Chinese legal institutions (specifically the magistrate) and the deep morality of its people. If we could just change the institutions, the thinking went, we could rescue the Chinese people from the ruthless officials who oppress them. With this background, Kroncke turns to other critical episodes in the U.S.–China relationship, paying particular attention to how the “missionary mentality” came to inflect American encounters with Chinese people and institutions. In the late nineteenth and early twentieth centuries, the missionary legacy, coupled with the presence of lawyers in U.S. foreign policy, produced a new type of interlocutor in the bilateral relationship: the legal missionary. These men aspired to spread American law—constitutionalism, legal education (including Langdell’s case model), and professional organizations—to China with the same fervor that their religious predecessors did. Kroncke describes them as “secular reformers,” and includes case studies of Roscoe Pound and Frank Goodnow to show how even high-powered American academics “failed” to produce meaningful legal reform in China. This archival work contributes significantly to our understanding of U.S.–China relations during crucial junctures in the bilateral relationship, and does so through a distinctly human lens. In short, much recommends this book, not the least of which are its ambit, ambition, and mining of heretofore unappreciated sources. At the same time, the book raises several questions that Kroncke has not adequately answered. First, the “legal missionary” trope seems, at times, stretched. Kroncke has deftly unpacked the origins of U.S. engagement with China, fleshing out the multiple roles (missionary, diplomat, informant, lawyer) played by America’s first interlocutors and inhabitants of China. But to say the “missionary mentality” has inflected U.S. encounters ever since that time both overstates the importance of the missionary origins and overlooks deeper impulses of the U.S. foreign policy agenda. As scholars across various disciplines tell us, America’s engagement with many foreign countries reflects a combination of paternalism and amnesia, even without missionary roots. For example, American efforts to install democracy in Latin America, a project that lasted the entire twentieth century, largely ended in failure.5 A similar conclusion could be drawn about initiatives to buttress democracy in Africa over the past half-century.6 And current attempts to bring democracy and rule of law to Iraq and Afghanistan have likewise borne little fruit.7 Engaging this broader scholarship might have led Kroncke to other formulations of U.S. engagement with China. Political scientists and international relations scholars argue that, despite lip service to the prevailing ideology (democracy, rule of law, Christianity) the United States was most interested in promoting some combination of strategic, economic, or political interests.8 Kroncke, by contrast, largely leaves out asking why the United States has been drawn to China in the first place. Surely it was not to rescue the soul—religious, legal, or otherwise—of the Chinese populace. Relatedly, Kroncke does not closely attend to the impact of American legal reform efforts in China. He does this on occasion, for example, in analyzing the impact of the Far Eastern American Bar Association in the 1910s and 1920s.9 But if the broader thesis is correct, there must be mountains of failed reform attempts. Without sifting through this detritus, it is difficult to conclude that American legal reform attempts resulted in failure. Such an exercise might have nuanced Kroncke’s conclusions. Seeing how China transplanted, say, the exclusionary rule or adversarial criminal procedure would yield insights into the comparative law enterprise, while showing how American attempts to influence other legal systems rarely produce the intended results. More importantly, the current Chinese government frequently seeks out foreign legal models in its ongoing reform effort. Many scholars have noted the impact of American law on legal reform efforts in China.10 One recent study concludes China has borrowed more legal concepts from the United States than any other country.11 Yet Kroncke does not investigate how this transplantation process works. Instead, he repeats the argument that the current wave of legal reform efforts follows “the same missionary cycle of enthusiasm and disappointment” of previous centuries.12 To be sure, unlike many earlier encounters, the Chinese government solicits these transplants. In so doing, Chinese government actors rely on a wide range of American interlocutors to draft their laws and regulations. American nongovernmental organizations (NGOs), lawyers, academics, and even government agencies now play a critical role in discussing Chinese legal reform.13 The influence of such exchanges may be difficult to tease out. But conversations with members of these communities would surely have yielded some insights. It would also give attention to Chinese law, something largely absent in a book about comparative law. If postcolonial studies have taught us anything, it is not that the subaltern cannot speak, but rather that Western scholars need first to comprehend the language in which the subaltern is speaking, and then to dig deeper to capture that voice. A final critique is the relative absence of prescriptions or lessons learned. Assume Kroncke is right. American legal export has been a failure. What is the appropriate response? How can we improve upon our own history of myopic self-congratulation? Kroncke’s call for renewed attention to comparative law offers one way forward, even though his suggestion that executive and legislative branches lead the charge on this initiative seems unlikely.14 Should U.S. law schools require international and comparative law classes, as some institutions do? What aspects of China’s current legal system should Americans know about and try to emulate? How can we ensure that American interactions with other legal systems, including China’s, are tempered by respect and not the impulse to reform? How do we produce more cosmopolitan lawyers and judges in the United States? Such policy prescriptions may lie outside of Kroncke’s immediate concern, which is to reorient the ways we consider Sino-American relations. But more constructive engagement along these lines would have raised Kroncke’s book from an insightful intervention to an obligatory guide to a more cosmopolitan future. As it stands, Professor Kroncke has provided a rich and absorbing corrective on the history of the West’s, and specifically the United States’, relationship with China. This is primarily a book about legal history, and the encounters Kroncke has unearthed fill in gaps of the bilateral relationship. In this way, Kroncke follows other theoretically sophisticated works in the field of legal history, such as Teemu Ruskola’s excellent Legal Orientalism, which has also been reviewed in this Journal.15 At a time when the United States and China approach economic parity, trade and invest in the other country in unprecedented volumes, and seek new ways to ease bilateral tensions, Kroncke’s urge for modesty is timely and necessary. Two hundred years ago, a new nation believed China offered lessons in governance and political philosophy. Now, the new country is China, drawing on various global models, including that of the United States, in its ongoing legal reform project. The question remains whether the United States can rekindle that spark of curiosity about the outside world, including China. With the world more interconnected than ever before, and the virtues of globalization under increasing scrutiny, the question has never been so urgent. Footnotes 1. The United States fought alongside nationalist China in World War II (1941–1945), and against communist China during the Korean War (1950–1953). More recently, American presidents have labeled the bilateral relationship in many ways. See Suisheng Zhao, Chinese Foreign Policy: Pragmatism & Strategic Behavior, inChinese Foreign Policy: Pragmatism & Strategic Behavior 3 (Suisheng Zhao ed., 2004). During the second term of the Bill Clinton administration, both states referred to a “constructive strategic partnership.” Id. at 15. During the first term of the George W. Bush administration, China became a “strategic partner.” Id. President Obama said he hoped China will continue to “work with us as equal partners in dealing with many of the global challenges that no single nation can address by itself.” See Christs Parsons & Paul Richter, Obama, Chinese President Wrap Up a Sometimes Contentious Summit, L.A. Times, June 8, 2013. President Trump, particularly during his candidacy, used a range of metaphors to describe U.S.–China relations that included rape, theft, and labeling China “the enemy.” 2. Jedidiah J. Kroncke, The Futility of Law and Development: China and the Dangers of Exporting American Law 6 (2016). 3. Id. at 15. 4. Id. at 18. 5. See Paul W. Drake, From Good Men to Good Neighbors: 1912–1932, inExporting Democracy: The United States and Latin America, Themes and Issues 3 (Abraham F. Lowenthal ed., 1991). Drake attributes America’s failure to democratize Latin American states to its superficial understanding of democracy (an emphasis on elections, but not institutions), incomplete commitment to full democracy, and the general point that impositions of any type of political system generally fail. Id. at 5. Drake also notes these lessons were quickly forgotten. 6. See Anyang’ Nyong’o, Promotion of Democracy as a Goal of U.S. Foreign Policy in Africa, inRethinking Global Security: An African Perspective? 61, 67 (Makumi Mwagiru & Okello Oculi eds., 2006) (arguing that American foreign policy in Africa is driven more by economic and strategic interests than by the pursuit of democracy and good governance in these countries). 7. The situations in both Iraq and Afghanistan remain fluid at the time of this writing (2017). The Islamic State controls vast swathes of Northern Iraq, while the Taliban either controls or exerts influence over half the territory of Afghanistan. See Sarah Almukhtar & Karen Yourish, More Than 14 Years After U.S. Invasion, the Taliban Control Large Parts of Afghanistan, N.Y. Times, Apr. 19, 2016. See also Zachary Elkins, Tom Ginsburg & James Melton, Baghdad, Tokyo, Kabul . . . : Constitution-Making in Occupied States, 49 Wm. & Mary L. Rev. 1139 (2008) (describing the importance of domestic input and negotiation in the process of drafting constitutions while a foreign power occupies one’s country). 8. See,e.g., Abraham F. Lowenthal, The United States and Latin American Democracy: Learning from History, inExporting Democracy: The United States and Latin America, Themes & Issues, supra note 5, at 261, 261 (“From the turn of the century until the 1980s, the overall impact of U.S. policy on Latin America’s ability to achieve democratic politics was usually negligible, often counterproductive, and only occasionally positive.”). 9. Kroncke, supra note 2, at 124–25. 10. See,e.g., Ying-Mei Faxi jiqi dui Zhongguode Yingxiang (英美法系及其对中国的影响) [The Influence of Anglo-American Law on China] (He Qinhua (何勤) ed., 2009) (containing dozens of articles about the impact of the common law on Chinese legal developments); Shen Zongling (沈宗灵), Dangdai Zhongguo Jiejian Waiguo Falüde Shili (shang) (当代中国借鉴外国法律的实例（上）) [Cases Where Contemporary China Has Borrowed Foreign Law (1)], 5 Zhongguo Faxue （中国法学） [Chinese L.] 22 (1997); Shen Zongling (沈宗灵), Dangdai Zhongguo Jiejian Waiguo Falüde Shili (xia) ((当代中国借鉴外国法律的实例（下）) [Cases Where Contemporary China Has Borrowed Foreign Law (2)], 5 Zhongguo Faxue （中国法学）[Chinese L.] 31 (1997) (analyzing twenty-six Chinese laws involving significant legal borrowing). 11. Shiping Hua, The U.S. Impact on China’s Legal System During the Reform Era, 5 Int’l J. China Stud. 681 (2014). 12. Kroncke, supra note 2, at 230. 13. Many organizations consult with China on legal reform projects, such as the American Bar Association’s (ABA) Rule of Law Initiative, Asia Catalyst, Ford Foundation, Open Society Foundation, and the Public Interest Law Initiative. In addition, U.S. law schools, such as New York University and Yale, have centers that advise on legal reform projects. The U.S. State Department and the Chinese Ministry of Foreign Affairs have convened a “Legal Experts Dialogue” for many years. The Commerce and Justice Departments recently announced a “Judicial Dialogue.” See Commerce, Justice to Lead First U.S.–China Judicial Dialogue: In Support of Economic Growth, Off. of the Gen. Couns. Blog (July 19, 2016, 12:40 PM), https://ogc.commerce.gov/news/blog/2016/07/commerce-justice-lead-first-us-china-judicial-dialogue-support-economic-growth-and. 14. Kroncke, supra note 2, at 234–35. 15. See Timothy Webster, The Legal Precedents of American Orientalism, 62 Am. J. Comp. L. 1003 (2014) (book review). © The Author(s) . Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org.
American Journal of Comparative Law – Oxford University Press
Published: Dec 1, 2017
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