As the resident Sinophone, I suspect that one of my responsibilities around here is to post an annual ‘Chinese New Year’ post. As you probably know, last Thursday marked the first day of the Chinese New Year. Having been duly instructed by the ‘taitai’, then in Beijing with the family, to eat some fish (as is required), I went to the local Chinese restaurant here in a working class district in Paris to fulfill my New Year’s responsibilities. I ordered “Fish with Peppers” (please let it be Szechuan!) and – as you might expect – received something that looked Chinese, but did not really taste Chinese. It was as if the chef had been working off-of picture of a Chinese dish, without really understanding its actual ingredients.
All this reminded me of the discipline of comparative law. Over the last generate, the study of comparative law has generally been caught between two extreme positions. One, what we might call universalism, sees all law as ultimately converging on a single paradigm (often termed ‘rule of law’). The other, what we might call relativism argues the exactly the opposite, that the different cultures of the world insure that its various legal systems will be forever divergent and to a significant extent, therefore mutually incomprehensible. My initial responses to my ‘Chinese’ fish dish paralleled these two schools.
The fish dish could be seen as a metaphor for what Alan Watson has famously termed ‘legal transplantation’, a process by which one culture adopts – either by choice or by compulsion – the legal system or principles of some other system. For the last 20 years, Watson theory of legal transplantation has been one of the lightning rods around which the debate between the universalists and cultural relativists has sparked. My first impression of the dish was one of (psychic) rejection: it did not taste anything like Chinese food was supposed to taste like. Here, I was thinking like a universalist. But, once I abandoned my culturalist presumptions, I realized that even though tasting nothing like Chinese food, the fish was in fact pretty good when approached on its own terms. Score one for the cultural relativists.
But there was a twist. Turns out the chef was from China (Shanghai), and he had only lived in Paris for a short time. The fish was his interpretation of how he thought (or guessed) the French palate would want Chinese food to taste like. In this sense, it was both divergent and convergent. It was ‘divergent’ in taste. But it was ‘convergent’ in understanding (or what we might call ‘cognition’, for those of you who have read Gunther Teubner's work). To extend the metaphor, it could be seen as the chef’s effort to develop a point of communication around which the divergent French and Chinese palates could begin constructing a mutual comprehension of one another.
I suspect that this is also what is happening with regards to many of the world’s legal cultures – they are evolving structural capacities for mutual comprehension while retaining non-convergent structural identities. If so, it suggests that the study of comparative law should a third possibility in legal development, one that allows for non-convergent legal systems that nevertheless are able to develop increasingly structural capacity to engage with, ‘understand’ and even learn from each other without losing their own distinctive structural legal identity.