Friday, February 24, 2012

Kroncke on Goodnow and Pound's Chinese Misadventures

We somehow missed the posting of two installments of the research project of Jedidiah Kroncke, a Senior Research Scholar at the Harvard Law School, when they first went up on SSRN.  They are fascinating accounts–I think of them as cautionary tales–of American scholars' attempts to “export American legal models” to China in the twentieth century.  The first is An Early Tragedy of Comparative Constitutionalism: Frank Goodnow & the Chinese Republic:
This article recovers a lost episode in the neglected early history of American comparative constitutionalism. In 1913, pioneering comparative lawyer Frank Goodnow was sent to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow's mission reflected the growing interest of America in China's legal development in this era, and his constitution-writing project won broad support from the American legal profession. Goodnow's tenure ultimately generated great controversy when he advised China to adopt constitutional monarchy rather than continue on as a republic. This article describes this controversy and how American international engagement was increasingly shaped in the early 20th century by the attempted export of American legal models as a presumptively altruistic mechanism of modernization. Goodnow's allegiance to comparative legal science agitated against this more parochial view of legal internationalism, and in the end he was excommunicated from American foreign policy affairs.

More broadly, this article shows how the early history of American comparative constitutionalism had its roots in the early 20th century American discourse on colonial administration. Goodnow and other American lawyers of the era turned to indirect engagements with foreign legal reform only after the popular rejection of colonialism that had been already constitutionally sanctioned by the now infamous Insular Cases. This article further argues that these colonial roots and Goodnow's feckless misadventure in China hold key lessons for today's comparative constitutionalists. It provides a vivid example of how the technocratic illusion of engaging in depoliticized legal reform abroad is self-defeating and untenable. Further, it warns against the inherent tensions between a methodologically coherent comparative law and the desire to export American constitutional models abroad, and how such tensions can undercut clear-sighted American understanding of foreign legal developments.
The second is Roscoe Pound in China: A Lost Precedent for the Liabilities of American Legal Exceptionalism:
Roscoe Pound retired from Harvard Law School in the late 1940's as one of America's most prominent legal figures. Mostly forgotten today is that Pound left Harvard with great fanfare to take up an appointment as legal adviser to China's Guomindang Party (GMD). Pound went to China at the height of America's also oft forgotten early 20th-century preoccupation with the Chinese Republic's potential legal and political Americanization. As adviser, Pound created a grand reform agenda for Chinese law and became an active stateside propagandist for the GMD. Pound's desire to transform the Chinese legal system along American lines was representative of new presumptions about how American law could act as a stimulus for the legal development of foreign legal systems. These presumptions set American law outside and above international legal discourse, establishing a key modern component of what is today often called American legal exceptionalism.

Pound failed to achieve any success in influencing Chinese legal reforms before the victory of Chinese Communist Party in 1949. More broadly, Pound's "export" work in China undermined and degraded his early commitment to comparative law. Further, his representation of Chinese legal reform as following American patterns pro-actively warped domestic perceptions of Chinese legal developments. After 1949, Pound, like the American legal community more broadly, was unable to reflect critically on his failure. Instead, he used his time in China to fuel a polemical and influential anti-Communism that cast positive evaluations of the export of American law as a test of national loyalty. Pound's experience in China serves as a key modern precedent for the liabilities inherent in the export-driven view of American law abroad that still shapes Sino-America legal relations and the normalization of modern American legal exceptionalism.

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