How a “Lawless” China Made Modern America: An Epic Told in Orientalism
Legal Orientalism begins with a map of modern law in which the United States and China are located at opposite ends. America sees itself as being built on “particularly universal” political values in which law is given a privileged position (p. 9). From this perspective, China and Chinese law are cast as being “universally particular” (p. 9). In its particularity, the rule of law and democracy are out of its reach. While the United States has become the world’s “chief law enforcer,” China, because of its poor human rights record, is a “law breaker in chief” (pp. 1–2). Professor Teemu Ruskola’s theoretically sophisticated book traces the historical journey traveled by American law starting with the receipt of extraterritorial rights for its citizens in 1844, a milestone in America’s career as an imperial nation; this is not least because it was at this juncture that a law of nations that was not universal but particular emerged, in part to justify America’s extraterritorial rights in China. The next development was the establishment of an American court in China whose decisions were as arbitrary as those reached by the Chinese courts, the alleged arbitrariness of those courts being why, foreigners had argued, extraterritorial rights were necessary. There was then the taking over of a Chinese court in Shanghai, with the consequence that American judges determined the very content of Chinese law. The United States passed anti-Chinese immigration laws that were justified by the assertion that the “lawlessness” of China had produced Chinese immigrants who knew only despotic rule and who were therefore unsuited to a life under the rule of law in America (pp. 8, 46, 49, and 143). The U.S. Supreme Court upheld these anti-Chinese laws on the basis of the federal government’s plenary powers in passing immigration laws, powers that were unconstrained by the Constitution (p. 143).
The major part of Legal Orientalism is concerned with the question of how it was that Chinese law was not considered to be law and the ideational and material consequences of this exclusion. In the book’s Epilogue (Chapter Six), Ruskola argues that even with the large increase in the volume of laws in China since the 1980s, legal Orientalism cannot be simply a matter of history. Ruskola notes that in China’s accession to the World Trade Organization, it was necessary for China to adapt its legal system (pp. 205–06). Although China was voluntarily seeking admission, the situation was reminiscent of the early-twentieth century when China was told it had to modernize its legal system if it wanted to end extraterritorialism (p. 205). Ruskola concludes that colonialism’s spread of modern law has triumphed: “Today law is universal” (p. 208). Moreover, modern law, as an extension of the state, has its own tendency to enact “colonialism without even colonizers” (p. 207). Even though this project is not yet complete and there are some areas of activity and life that Ruskola thinks are better considered “unlegal” (p. 220), the success of the modern legal project “in creating Chinese subjects who desire law and conceive of politics in juridified terms” (p. 208) is clear. Chinese citizens “are increasingly suing their employers, landlords, each other, and even the state” (p. 208). While Ruskola does not commit himself to modern law (though he states that “[t]he world in which we live is a fundamentally legal one” (p. 14)), he points to the rising rights consciousness in China and acknowledges that the importance of law as a “counterhegemonic” weapon is in fact increased in an authoritarian state such as China, where there is a greater risk of state encroachment on individual rights (p. 211). In closing Legal Orientalism, Ruskola observes that, despite China’s economic and political rise, “the idea of ‘Chinese law’ continues to strike many as an oxymoron, haunted as it is by a long history of legal Orientalism” (p. 235).
A work as rich and ambitious as Legal Orientalism is open to multiple readings. This Review begins by placing Legal Orientalism in legal deconstruction before looking briefly at earlier works on the subject of Orientalism and law. It then examines the book’s claims regarding the myth of China’s lawlessness and explores the book’s argument about why America sought extraterritorial rights from China, before looking at one empirical aspect of the work — America’s practice of extraterritoriality in China — and considering Orientalism’s contribution to and future in the study of law.
*Professor of Law, SOAS, University of London. I would like to thank the President and editors of the Harvard Law Review for their many helpful comments. Errors remain mine. I would also like to record my thanks to the Center of Asian Legal Exchange and the Graduate School of Law, Nagoya University for hosting me when I was in the final stages of writing this Review.