Legal Orientalism: China, the United States, and Modern Law
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Since the Cold War ended, 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 needing to be verified empirically, and how did the United States assume the mantle of law’s universal appeal? In a series of wide-ranging inquiries, Teemu Ruskola investigates the history of “legal Orientalism”: a set of globally circulating narratives about what law is and who has it. For example, why is China said not to have a history of corporate law, as a way of explaining its “failure” to develop capitalism on its own? Ruskola shows 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-U.S. treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated U.S. territorial colonialism after the Spanish-American War in 1898, and found its fullest expression in an American district court’s jurisdiction over the “District of China.” With urgent 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 global politics of trade and human rights, legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways.
are the last two major empires that remain standing in the beginning of the millennium. The achievement is remarkable, considering the violent collapse of several other empires with whom they shared the global stage at the dawn of the twentieth century, IN TR ODU C TI ON : L E G A L O RI E NTA L I S M barely a hundred years ago: the Russian (and subsequently Soviet) Empire, the British Empire, the Ottoman Empire, the Austro-Hungarian Empire, the French Empire, and the German Empire— all are
forma wives and adopted sons for the purposes of succession. In sum, by virtue of its status as a kinship group—real or ﬁctional—the clan corporation acquired some of the ideologically unimpeachable and legally cognizable personality of the family. Even if the social universe was ultimately a uniﬁed whole, the family provided a legitimate means of partaking in that universal source of personality. Transferability of ownership—the penultimate element of our deﬁnition of a corporation—is the
equilibrium.” Yet according to the strongest formulation of contractarianism, ﬁduciary duties are “the same sort of obligations, derived and enforced the same way, as other contractual undertakings.” Just like the rest of corporation law, we are told, they “ﬁll in the blanks and oversights with the terms that people would have bargained for had they anticipated the problems and been able to transact costlessly in advance.” Courts’ task in enforcing ﬁduciary duties is therefore not to
subjectivity, that of the sovereign individual. Yet the consequences of legal Orientalism were greater still, as we will see in the last part of this chapter. In the United States, the enactment of Chinese Exclusion Laws had a direct and deeply damaging impact on the development of U.S. constitutional law in the late nineteenth century. When the U.S. Supreme Court upheld the laws, it did so on a remarkable basis, holding that with regard to immigration the U.S. government possessed a plenary
lawlessness and immorality was hard to fathom. Judge Wilﬂey thought it vital to restore the respect for law among American women in particular. However, when he tried to crack down on “keepers of American bawdy houses” in Shanghai, many of his targets quickly married foreign men. Under the patriarchal logic of derivative spousal citizenship, these women instantly lost their American citizenship and acquired the husband’s foreign one, which in turn protected them from prosecution in the U.S.