Exploring the Legal Orient
Professor of Law
AB, Stanford University, 1990
Inter-University Program for Chinese Language Studies, Taipei, 1992
JD, Yale Law School, 1995
AM, Stanford University, 1999
Scholarly interests: Chinese law, international law, legal history, legal theory
Teemu Ruskola’s interest in Chinese law might be traced to his childhood in Finland, when he was told that if he were to dig a hole in the earth and keep digging, he would come out on the opposite side of the earth — in China. Eventually, he learned that children in the Western Hemisphere are told the same thing. Evidently, China’s location “on the other side of the world” is a matter of the geopolitics of knowledge, not of geographic space, he says.
Ruskola’s research seeks to understand how, and why, China functions as the West’s civilizational “Other,” as well as the role law plays in the political and cultural encounter between East and West. His work on what he calls Legal Orientalism — the longstanding cultural association of China with lawlessness and “Oriental despotism”— seeks to bracket the question whether, or how, Chinese law exists in fact, in order to emphasize why it is that it can’t exist even in theory.
In his book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, forthcoming 2013), Ruskola explores the history of globally circulating narratives about what is law, and who has it. Since the end of the Cold War, China has become a global symbol of disregard for human rights, while the United States has positioned itself as the world’s chief exporter of the Rule of Law. How did lawlessness become an axiom about Chineseness — rather than a fact to be verified empirically — and how did the United States assume the mantle of law’s universal appeal?
In Chinese studies, Ruskola says, the United States is cast conveniently as a “special friend” of China, which defended it against depredations by Great Britain and other European imperial powers — part of a larger narrative of American exceptionalism. Looking at U.S. actions in China through the lens of Legal Orientalism, by contrast, helps Ruskola see the emergence of a distinctive American ideology of empire in the mid-nineteenth century — based not on the traditional model of territorial colonialism, but on a kind of legal, or jurisdictional, imperialism. This history of U.S. extraterritorial empire remains almost unknown. One of the reasons, Ruskola says, is the way in which it straddles both geographic and disciplinary boundaries. In addition to being a story about Chinese history and American history, it is a story about international law, comparative law, and U.S. constitutional law, for example. Despite this pervasiveness, the United States’ extraterritorial empire is easy to miss, as it does not come into full view from the vantage point of any one of these fields of study alone. Precisely because it is a historical monstrosity of sorts, conventional disciplinary approaches render it almost invisible.
From a longer historical perspective, Legal Orientalism examines how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day. The first Sino-United States treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated the United States’ territorial colonialism following the Spanish-American War in 1898 — and found its fullest expression in the bewildering jurisprudence of a U.S. District Court for the “District of China.”
Among its contemporary implications, Legal Orientalism lives on in the enduring damage wrought on the U.S. Constitution by late nineteenth-century anti-Chinese immigration laws, and in the self-Orientalizing reforms of Chinese law today. In the politics of trade and human rights, Legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways. Indeed, in today’s world, ideas of human rights and the Rule of Law have become the global standard for constituting free individual subjects as well as free and democratic states.
Ultimately, Ruskola would like to have a more informed scholarly debate about the legal, political, and geopolitical status of China, historically as well as today. China matters, he says, and people do care about it — especially as its economic might grows — yet so much of the public and even academic discourse about China is misinformed at best, and ignorant at worst. To this day, when he tells people he studies Chinese law, they frequently insist there is no such thing.
Excerpt from Legal Orientalism: China, the United States, and Modern Law
(Harvard University Press, forthcoming 2013) (condensed, citations omitted)
Standard accounts of the origin of modern international law trace its birth to the Treaty of Westphalia in 1648 and the end of the post-Reformation religious civil wars in Europe. Thereafter, each sovereign was to determine the religion of his state, all states were to enjoy formal equality under the law of nations. Collectively, these accounts provide a history of the emergence of the liberal norm of sovereign equality among nation-states.
Yet the picture changes significantly when it is reframed geographically, beyond Europe, and temporally, to an earlier date. Consider Carl Schmitt’s invitation to view the Discovery of the New World in 1492 as the origin of modern international law. From this perspective, the narrative is no longer one of increasing inclusion and equality within Europe. Rather, it becomes a story of the violent exclusion of others outside of Europe, first on the basis of religious, then cultural, difference. Viewing the history of international law from this earlier date, then, how did the New World fit into what was still by and large the public law of the “Christian republic” of Europe? It is important to recall that Columbus ended up in America while looking for a route to India. America hence began its European career as Asia. Columbus believed until his dying day that the New World he had found was in fact Asia. Thus, America originated as the “West Indies” in European historical consciousness, in contrast to the East Indies in the “real” Asia.
Originally both the East and West Indies were regarded as lying beyond the pale of civilization, or as John Locke put it epigrammatically, “in the beginning, all the world was America.” Yet with the American Revolution the United States indeed rose to assume, in its own words, “among the powers of the Earth, the separate and equal station to which the Laws of Nature and Nature’s God” entitled it. Although the new nation emerged from what had once been the West Indies, the United States now claimed to exceed, and supersede, that categorization. It confidently asserted its political parity with Europe, and ultimately even its superiority. With the Revolution, Americans came to believe that theirs was the real West: the New World embodied the universal values of Europe even better than Europe did. With the rise of the New World, the Old World in turn became precisely what the designation suggests—old and anachronistic.
Whatever may have remained of the Indies in the New World was expelled geographically outside of North America proper, where it still languishes, mostly in the islands of the Caribbean. And insofar as some actual “Indians” still remained physically within the borders of the United States, they were not considered citizens of the new polity but became ultimately “domestic dependent nations,” in the memorable words of Chief Justice Marshall.
As far as Europe was concerned, in 1776 the law of nations was still limited in its application to the Family of Nations, or European international society consisting of “civilized” states. Nevertheless, despite some early hesitation, the admission of the United States into this European political family was fairly uncontroversial. Given the colonists’ indisputable genealogical connection to the Old World, the young nation was soon recognized as civilized and hence fully sovereign.
But although the American Revolution reconstituted America’s legal relationship to Europe on the novel basis of sovereign equality, it remained an open question how the young nation would organize its political relations with the rest of the world. Even after the American Revolution, Europeans deemed themselves fully authorized by the law of nations to continue their project of colonizing the extra-European world. With a high degree of self- consciousness, the young United States rejected that European understanding of sovereignty and the “will to empire” that it implied. It was self-evident to patriotic early Americans that they ought not to establish territorial colonies on the European overseas model (but rather on their own continental one, which was not seen as imperialism at all).
Nineteenth-century international law, however, did not divide the world solely into civilized states that were fully sovereign and savages whose lands were either mere terra nullius that was only there waiting to be “discovered” or else could be won through colonial conquest. In certain circumstances, less-than-civilized peoples might indeed possess a degree of sovereignty, yet they could not impose their laws on “civilized” men even when they entered their territory. This exemption from local law became established as the right of extraterritorial jurisdiction.
The secular international law of the nineteenth century justified the practice of extraterritorial jurisdiction in Asia and elsewhere on explicitly civilizational grounds. However, it is important to recognize its religious origins in the much earlier system of the so-called Capitulations, which once mediated Europe’s relations with the Ottoman Empire. In the pre-Westphalian era when religion provided the predominant framework for European inter- state relations, the privileges of the law of the European Respublica Christiana could not be extended to infidels and, concomitantly, Christians sojourning in the Ottoman Empire could not be subjected to Muslim law but adjudicated their disputes under their own law. The arrangement began as a favor granted by Turks to Europeans. Yet as the Ottoman Empire became increasingly weak relative to Europe, the Capitulations ultimately solidified into a resented imperial imposition. By the nineteenth century, they were a well-established, nonterritorial form of imperialism.
As the newborn United States began looking outside its borders and turned its gaze across the South Seas, how was it to constitute its relationship to Asia? Having (ostensibly) rejected outright territorial colonialism, would it decline to follow the European practice of extraterritorial jurisdiction in Asia as well? The matter was far less urgent than the relations with Europe, for example (the clarification of which required a revolution), or the relations with Africa (which were troubled because of slavery). Unsurprisingly, it was also decided much less self-consciously. China figured only minimally in the early American diplomatic consciousness, and from the beginning, U.S.-China relations were inextricably intertwined with questions of trade.
Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, forthcoming 2013)
Schlesinger’s Comparative Law (Foundation Press, 7th ed., 2009) (with Ugo Mattei & Antonio Gidi)
China and the Human (special double issue, co-edited with David L. Eng & Shuang Shen), 109 & 110 Social Text (2011-2012)
The East Asian Legal Tradition, in Cambridge Companion to Comparative Law (Cambridge University Press, forthcoming 2012) ( Mauro Bussani & Ugo Mattei eds.)
Raping Like a State, 57 UCLA Law Review 1477 (2010)
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