Monday, February 11, 2008

Of Fish, Law and the Chinese New Year.

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.

Posted by Mike Dowdle (who needs to recognize that sometimes a fish is just a fish).


Michael C. Dorf said...

1) As one of the two resident vegans, I feel obliged to point out that from the perspective of the fish, it didn't matter much how authentically Chinese he tasted, just that he had been asphyxiated to death when caught in a net.

2) I would also note---more in the spirit of the post---how similar the position of the chef is to that of Democratic Party voters. A Chinese chef trying to guess what French diners will think tastes authentically Chinese is a lovely metaphor for Democrats trying to guess which candidate will appeal to independents and potentially cross-over Republicans.

3) Or at least that would have been a good metaphor a month ago. We now know pretty clearly from primary results that Obama has stronger appeal to independents and cross-over Republicans.

Sobek said...

"...just that he had been asphyxiated to death when caught in a net."

You gotta go sometime. The only question is, will you end up a yummy dish in a law professor's belly, or a yummy (in a different way) dish in the belly of a bear, or phagocytized by a zillion microbes in the bottom of a pond.

We now know pretty clearly from primary results that Obama has stronger appeal to independents and cross-over Republicans.

Do we really know that? How much cross-over has there been in the Dem primaries? I suspect the cross-over will increase as the Republican contest winds down and Republicans feel free to mess with the opposition (I know one conservative who did precisely that on Super Tuesday -- for Obama), but we haven't seen much voting post-Super Tuesday.

Michael W. Dowdle said...

With regards to the comment by Michael C. Dorf, it should be noted that the fish that was the subject of the post was a know killer and devourer of other, cuter fish -- fish with names like 'Dory' and 'Nemo' who, given the opportunity, would undoubtedly vote for Obama. As the chef himself told me, "tasting Chinese would have been too good for him."

I might add that through my actions, I undoubtedly saved the lives of hundreds if not thousands of this other fish, and through them perhaps the Democratic Party itself. Remember that President Bush himself claimed to be actively seeking a world in which "the human being and fish can coexist peacefully", suggesting that Karl Rove has been actively trying to make human-fish relations into a partisan Republican issue.

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