Legal Orientalism

Legal Orientalism and

Global Business Law

This section introduces Orientalism and a new theory titled

“legal Orientalism.” Legal Orientalism is explained in
conjunction with critical legal theory. The theory will be
deconstructed by analyzing legal cases in the contemporary
Chinese, Japanese, and Korean contracts and business law.
Themes related to anticipatory repudiation in China,
setting of comparables in transfer pricing in Japan, and the
legal framework of the Kaesong Industrial Complex will be
presented to argue against legal Orientalism.
 Re-visiting Confucian ethics

The last section devotes to a discussion by re-

visiting Confucian ethics to reflect whether the
Artificial Intelligence can adopt legal reasoning
in the 21st century global society.
 Theoretical Orientation
Section 1 Theoretical orientation

Unit 1 Foucault’s power and subject

Unit 2 Orientalism
Unit 3 Legal Orientalism
 Section 2
Deconstructing legal Orientalism
Interview with Prof. Suami

Unit 1 Toward global constitutionalism

Unit 2 Interview with Prof. Suami
Unit 3 Toward legal pluralism
 Section 3 Deconstructing
legal Orientalism
Interview with Prof. Koguchi

Unit 1 Contract law in China

Unit 2 Breach as suspension
Unit 3 Breach as termination
 Section 4 Contract law in China

Unit 1 Contract law in China

Unit 2 　 A comparison with
Uniform Commercial Code
Unit 3 Anticipatory repudiation
 Section 5 Transfer pricing in Japan

Unit 1 　 Transfer pricing cases in Japan

Unit 2 Transfer pricing regulations
Unit 3 The notion of burden of proof
 Section 6 Inter-Korean Business

Unit 1 The Kaesung Industrial Complex

Unit 2 Inter-Korean business legal framework
Unit 3 Agreements on dispute resolutions

Section 7 Review questions

Section 1 Unit 1 Foucault’s power and subject

• Michel Foucault, “The subject and power”

Critical Inquiry, Vol. 8, No. 4 (Summer, 1982), pp.
777-795 http://www.jstor.org/stable/1343197 .
• Why study power?
• How is power exercised?
• What constitutes the nature of power?
 Foucault
Power as a relational notion
Inclusion vs. Exclusion
Punishment
Discipline and Punish: The Birth of Prison
Powerful vs Powerless
The Panopticon
Foucault, Michael. The Archeology of
Knowledge, Discipline and Punish
Gramsci, Antonio. The Prison Notebooks

•Against the dichotomy between “us” and “the

Other”
•Knowledge that alienates oneself
Unit 2 Orientalism
 Definition

… Orientalism, a way of coming to terms with

the Orient that is based on the Orient’s special
place in European Western experience.
 Phryne revealed before the Areopagus
Jean-Léon Gérôme

Wikipedia contributors. (2019, August 3). Phryne before the Areopagus. In Wikipedia, The Free Encyclopedia. Retrieved 05:47, September
30, 2019, from https://en.wikipedia.org/w/index.php?title=Phryne_before_the_Areopagus&oldid=909154674
 Panopticon
https://upload.wikimedia.org/wikipedia/
commons/thumb/1/11/Panopticon.jpg/800px-
Panopticon.jpg
 Orientalism

Suggested reading:
Said, Edward W. Orientalism
(Vantage Books, 1979, 1994).

Preface, Introduction
For long periods of human history, especially in
the Orient, the state is hardly more than a
shadow thrown upon the family and
neighborhood by remote personages, swollen to
gigantic form by religious beliefs. (Said, 1979,
p.41)
It rules but it does not regulate; for its rule is
confined to receipt of tribute and
ceremonial deference. Duties are within the
family; property is possessed by the family.
(Said, 1979, p.41)
Personal loyalties to elders take the place of
political obedience. The relationships of
husband and wife, parent and children, older
and younger children, friend and friend, and the
bonds from which authority proceeds (Said,
1979, p.41)
Politics is not a branch of morals; it is submerged
in morals. All virtues are summed up in filial
piety. Wrongdoing is culpable because it reflects
upon one’s ancestry and kin. Officials are known
but only to be shunned (Said, 1979, 41-42).
Orientalism is an integral part of European
material civilization and culture.
Orientalism expresses and represents that
part culturally and even ideologically as a
mode of discourse with supporting
institutions, vocabulary, scholarship, imagery,
doctrines, even colonial bureaucracies and
colonial styles (Said, 1979, p.2)
The Orient is not only adjacent to Europe;
it is also the place of Europe’s greatest and
richest and oldest colonies, the source of
its civilizations and languages, its cultural
contestant, and one of its deepest and
most recurring images of the Other.
In addition, the Orient has helped to define
Europe as its contrasting image, idea,
personality, experience… (p.1-2)
The first cultural theory or “discourse” to
address assumptions held in Western
scholarship.

Prior cultural theories: focus on “power”

Power determines truth
Reversed Orientalism

Occidentalism?
 Unit 3 Legal Orientalism
Teemu Ruskola, “Legal Orientalism” Michigan
Law Review, Vol. 101, No. 1 (Oct., 2002), pp.
179-234
Teemu Ruskola, Law, Sexual Morality, and
Gender Equality in Qing and Communist China,
103 Yale L.J. 2531 (1994).
Ruskola, Teemu. Legal Orientalism. Cambridge,
MA, Harvard University Press, 2013. 338 pp.
ISBN 978-0-674-07306-7.
 Intellectual superiority
Eurocentrism was typically formulated using
dichotomies
"A product of modern European civilization,
studying any problem of universal history, is bound
to ask himself to what combination of
circumstances the fact should be attributed that in
Western civilization, and in Western civilization
only, cultural phenomena have appeared which lie
in a line of development having universal
significance and value"(Max Weber, The Protestant
Ethic and the Spirit of Capitalism, 1976, p.13).
Western academia
• The "fact" that Western civilization was
unique and superior
• The underlying premise was the worldview
that represented Western superiority through
European exceptionalism
• The inferiority of the non-West
West Non-West
Rule of law Custom-based law

Self The Other

lawful Lawless

Rational and formal Irrational and substantive

Progressive Backward tradition

Occident Orient
 Ruth Benedict
[The] world-wide... diffusion of [Western
culture] has protected us as man had never
been protected before from having to take
seriously the civilizations of other peoples; it
has given to our culture a massive universality
that we have long ceased to account for
historically, and which we read off rather as
necessary and inevitable.' -Ruth Benedict
(Teemu Ruskola, 2002, p. 179)
 Foucault
[In China,] animals are divided into: (a) belonging
to the Emperor, (b) embalmed, (c) tame, (d)
sucking pigs, (e) sirens, (f) fabulous, (g) stray
dogs, (h) included in the present classification,
(i) frenzied, (j) innumerable, (k) drawn with a
very fine camel hair brush, (I) et cetera, (m)
having just broken the water pitcher, (n) that
from a long way off look like flies. - Michel
Foucault (Teemu Ruskola, 2002, page 179)
 A case in China
But just what does it mean to claim that China
suffers from a (relative or absolute) lack of
"law"? After all, only the most negligent
observer could miss the fact that imperial
China boasted dynastic legal codes going
back to the Tang dynasty, and earlier. The
point is usually a subtler one: whatever law
China has known is a form that falls short of
"real" law (Ruskola, 2002, p.182).
 Superiority of which law?
This view is implicit in the often stated claim
that Chinese law has been historically
exclusively penal and associated with
criminal sanctions. Especially in continental
systems, civil law stands at the heart of
jurisprudence, and its absence thus signifies
a gaping hole at the center of the Chinese
legal system. (Ruskola, 2002, p.182)
 Epistemological Imperialism

Epistemology
The study of knowledge
The structure of knowledge
 Legal Orientalism

To reiterate, there is indeed a strong cultural

tendency to associate the United States with law
(even if excessively so at times), and a
corresponding historic tendency to associate
China with an absence of law (whether that
absence be considered a vice or a virtue… (p.6)
 Legal Orientalism
The distinction is crucial because the emergence
of law, in the sense of rule- of- law, is one of the
signal markers of modernity. This rough cultural
mapping of the triangulated relationship among
China, the United States, and law generates
a number of assumptions that provide the
framework for scores of comparative studies of
China (Ruskola, 2002, p.6).
 Legal Orientalism

These include, most notably, the notion that

China is traditional— or worse, primitive— while
the United States is modern, as is the law that
embodies its essential values. From these
fundamental oppositions much else ensues,
historically and conceptually, … (Ruskola, 2002,
p.6).
 Limits of legal Orientalism

1. Multiple definitions
2. Western representations of Chinese law
3. “the distinction here between law as a system
of representation and law as a material
practice is only heuristic.”
4. Exclusiveness between Western and Chinese
law? (Ruskola, 2002, p.197).
 Against legal Orientalism

1. Chinese contracts law

2. Transfer pricing in Japan
3. Inter-Korea business law
 Contracts Law: China

Professor Koguchi
Expert in Chinese Contracts Law
Waseda University
President, Edogawabashi University
Research projects supported by JSPS
 Anticipatory repudiation

Contracts Law

Offer --------- Acceptance

Formation of a contract
Breach
 Transfer pricing in Japan

• Transfer pricing in Japan

• Tax-avoidance
• New transfer pricing methods
 Inter-Korea business law

• The Kaesung Industrial Complex as a model

• Prospective foreign direct investment