What does one make of the fact that the U.S. Congress passed an act in 1906 establishing a U.S. court, in China? This historical anachronism and its attendant contortions is the focus of Teemu Ruskola's brilliant excavation of the legal products wrought from colonial pillage, orientalist judgments, high-minded legal rhetoric, and gritty international relations. Rhetorically, the U.S. Court of China was intended to provide the rule of law for China, a country deemed terribly deficient in this regard. Practically, as Ruskola points out, the court was needed to try and make U.S. citizens in China behave, as their lawlessness was giving the American empire a bad reputation.
As law was generally linked to territory, putting together a code for U.S. jurisprudence in China was a challenge that was met with almost laughable creativity. Its codes were comprised of “English common law as it existed prior to American independence, general congressional acts, the municipal code of the District of Columbia, and the territorial code of Alaska, parts of which continued to be applied in China even after they were repealed in Alaska” (7). The resulting jurisprudence meant that judges could pick and chose from the legal codes available to them seemingly at random. The result was U.S. legally sanctioned imperial despots who could send prisoners away to the Philippines where they could be physically retrained into being model citizens. I now have a new episode to add to the long catalogue of the ironies and tragedies of colonial administration.
The general observation of the book is that this court was “a placeless law that was justified, ultimately, by the Orientalist axiom that China itself was a fundamentally lawless place” (156). Ruskola has great fun picking apart the absurdities that result. What is most valuable about this discussion is that the author does not rest content to show how colonial legality was a practice destined to undermine its foundational rhetoric. He also uses his argument to point out the absurdities of, for instance, American law. All jurisdictions are based upon fictions, desires, projections, and messy histories. “[L]egally the United States, too, is an edifice of extraordinary complexity, a Babel of jurisdictions not unlike extraterritorial Shanghai” (184).
As the title of the book suggests, orientalism plays a very large role in Ruskola's argument, as he details the fantasies and projections creating laws and policies that ultimately undermine the very distinctions they were meant to reaffirm. It is unclear whether orientalist tropes serve as the justification for the United States' legal regime in China, or if these ideas are truly the catalyst in the history he presents. I am not sure if that question can be answered, but at times, it feels that orientalism is a figure acting in Ruskola's argument, and not a critical lens he is applying. At one point, he states that, “Each of the chapters [in the book] is concerned with defining an Other through its relationship to law” (5). Later, Ruskola establishes “interlegality” as his working paradigm: “Put simply, both Chinese and Western law exist in both Chinese and Western imaginations and are intersubjectively linked” (35–36). I prefer the latter formulation, and found that at times the application of the “Other” as an analytical tool throughout the book was not as complex as the rich story and analysis he was presenting.
Importantly, Ruskola does not limit himself to revealing the projections about the United States and China at work in the development of institutions of the rule of law. Instead, he points out how the rule of law project itself is prone to phantasmagoric scaffolding. The U.S. government currently spends billions of dollars every year to promote “the Rule of Law” around the world, and it is routinely invoked as a panacea for all that ails the world. By focusing on this particularly absurd case of U.S. legality, he brings to light our stilted view of the rule of law in general. Ruskola's welcome contribution is to point out how our vision of ourselves, China, and the rule of law are all terribly inaccurate. “When we look at China as legal outsiders, much of the time law seems to recede to the periphery and all we can see is the residue that is discipline. And conversely, when we look at our own courts, what we tend to see is law, while discipline remains an invisible aura around it” (194). There is no clear definition of what the rule of law actually is, nor any persuasive examples of being able to create it from the outside. Clearly, despite the universal cloak often wrapped around the law, it is highly subjective and based upon historical, political, economic, and cultural factors. Any discourse about law between two countries is ultimately a negotiation of power, and only sometimes about values or morals. Ruskola's book should sound a cautionary note for all those who would be tempted to pronouncements of legal superiority.
Ruskola's book benefits from his expertise in the particularities of Chinese law. He is able to juxtapose American statements about Chinese law being based upon the family with a detailed and fascinating account of Chinese law in regards to the family and how it relates to the development of the modern corporation in that country. The combination of his clear, creative and cheeky writing, his area expertise, and his delicate application of political, legal and postcolonial theory make this an immensely rewarding book to read. Anyone interested in current legal debates over U.S. actions in other countries would find much of interest here.
