In this exceptionally sweeping and ambitious book, Jed Kroncke provides a richly researched treatment of the long and eventful engagement of the United States with China and its legal system. The Futility of Law and Development is a historical lamentation for the supposed decline and fall of American legal “comparativism,” defined here as a broad-mindedness about and openness to foreign legal ideas and practices. Kroncke's central thesis is how in nearly two centuries of contact (from the American to the Chinese Communist Revolutions) the American intelligentsia jettisoned a view of China as a world-historical innovator of law and legal knowledge for one of China as a backward society in need of legal modernization from without. Of crucial importance to this thesis is the “foundational role of religious missionaries in shaping American legal internationalism and the very notion of foreign legal reform” (3). American Christian missionaries, these “forerunners of modern development theory,” spearheaded American contact with Chinese law and society, giving birth to the notion that “foreign social development could be catalyzed through the transplantation of specific ideas and institutions” (3). Moved by an ethnocentric view of modernity, one based on a supposed “mutuality” of American law and Christianity, missionaries pressed for the redemption and “reform” of China's antiquated legal norms and practices throughout the nineteenth century. Then, in the early twentieth century, the Christian reformers yielded to a new kind of secular missionary, American Progressives committed to the introduction of American liberal legal modernity. In Kroncke's view, however, neither the Christian missionaries nor their Progressive successors enjoyed any meaningful success in the sociolegal reconstruction of China.
A short review cannot do justice to the analytical subtlety and empirical depth of Kroncke's eight chapters and two exemplary (in both senses of the word) case studies. The book's stage-setting first chapter examines “how Chinese law held a special place of esteem” in Enlightenment Era America, and how in “Revolutionary America the predominately positive image of Chinese law survived within a robustly comparative [American] legal culture” (10). Chapters 2 and 3 trace how in the wake of the Opium Wars, mid-nineteenth century European and American missionaries reimagined China as a “fallen nation” replete with antiquated and barbarous laws, a society chronically in need of spiritual and legal regeneration. In Kroncke's account, American missionaries, for all their determined efforts, even more than their European counterparts, signally failed to cause the imperial Chinese state to embrace American-sponsored sociolegal reforms.
In his middle chapters, Kroncke investigates how “in the 1890s America's growing global influence confronted the tension between republicanism and empire” (11). In the Chinese context, leading Americans in China advanced the view that American legal norms and practices could be exported “without usurping Chinese sovereignty” (80). American legal interventions there were justified as non-colonialist, as emanations of an “empire of liberty, and specifically the empire of law” (80). For Kroncke, a yawning gulf existed between American pretensions in this respect and the less savory reality of American chauvinism, anti-Chinese racism, and imperial designs. By 1900, the United States had overtaken territories won in the Spanish–American war to become the “crucible of American internationalism” (110), one infused with Progressive Era secular social-scientism.
The strongest sections of this strong book are those devoted to American legal reform efforts in China from the Chinese Revolution of 1911 to the “loss” of China in 1948. In the last and best case study of the book, Kroncke chronicles how, during 1946–48, the redoubtable Roscoe Pound (recently retired from Harvard) took up tenure as the “main” legal adviser to the Chiang regime in China. In Kroncke's assessment, Pound, like many of his predecessors, viewed China as a vast open air laboratory “for his vision of an ideal legal system” (204). A strident anti-Maoist, Pound also saw Chinese law reform as an antidote to the communist threat there. And although he purported to eschew “unreflective transfers” (208) of law, Pound's actual prescriptions for Chinese legal and judicial change were, in Kroncke's account, calculated to “transform China as a version of modernity scripted as Americanization” (220). In the result, however, Pound's recommendations on legal and judicial reform were largely ignored. However, even as his law reform program was rejected, Pound continued to exert himself as a pro-Guomindang apologist and propagandist, a role that he maintained even after Chiang's regime had fled to Taiwan.
In Kroncke's depiction, Pound's career in China is only the “most revealing example that discloses how the decline of American comparativism went hand in hand with embrace of legal export and all the losses this entailed, intellectually and socially” (221). In postwar Germany and Japan, then in the context of a globalized Cold War, “foreign legal reform became an expected staple of US internationalism” (223). American officials continued to delude themselves that their secularized reform programs were both welcome and free of imperialist taint. By the time of the Vietnam war, Kroncke argues, America's once “broad comparativist sensibility…had completely faded from American legal culture” (224).
In the final analysis, The Futility of Law and Development is a very good book, but one with a pronounced weakness: too much of its rich detail and analysis is subordinated to the author's rather reductionist normative aims. As Kroncke himself states, “This book is written with the open aspiration that we should be guided by an effort to make the best of the world and make it our own, with much the same curiosity and discretion as did the Founders” (9). In this reviewer's opinion, works of academic history, even those as well-researched and well-written as Kroncke's, are ill-served by “open aspirations” of this kind.
