Matthew S. Erie, American Journal of Comparative Law (forthcoming)
Full paper available on SSRN here.
Abstract
Contemporary comparative law operates across a landscape riven by protectionism, nationalism, and securitization, all of which complicate comparative law projects. Nowhere is this more evident than in the U.S-China relationship, the most important bilateral relationship in the world. Despite economic "delinking," the U.S. and Chinese legal systems are interacting more than ever; however, how this interaction works is poorly understood. This Article proposes "adversarial comparativism" to explain this dynamic. It is an approach to comparative law and politics that includes different modalities: competition, aggressiveness, transactionalism, misunderstanding, opportunism, and gaslighting. Many of these are underpinned by emotion. As such, while this Article unpacks adversarial comparativism, its broader contribution is to point to the role of emotion and its cognates-faux emotion, emotional contagion, psychological framing, and affect-in the comparing and making of law across borders. Adversarial comparativism shows emotion as a strategic asset deployed by elites to promote their interests. Drawing on bi-jurisdictional fieldwork, I illustrate this through the US-China relationship and the countries' respective comparative law projects. Chinese are learning extraterritorial law from the US; conversely, US states are building property regimes to limit the extraterritorial reach of the Party-State into American markets. Although the projects are different modalities and are asymmetrical, they are also reactive if not relational, and both are riddled with emotion. Adversarial comparativism shows how emotions like indignation and fear operate as "structures of feeling" that shape lawfare behaviors. Emotional content makes certain outcomes of comparative law projects possible while foreclosing others, including "symbolic legislation" informed by faux emotion. The Article asks what adversarial comparativism means for legal development in both superpowers, the fragmentation of international law, and the discipline of comparative law. Lastly, it suggests that while emotion may be one reason for US-China lawfare, it may also serve as resource for alternative pathways.
