Version classiqueVersion mobile

Exporting Legality

 | 
Mariya Tait Slys

Introduction

Texte intégral

‘Could we conceive the curiosity which would be produced if a Japanese or Chinese Junk should come, some beautiful morning, unexpectedly, into the harbour of New York or London, and anchored by the side of vessels of a totally different construction, containing men of different speech, complexion and costume; then might we imagine something of the curiosity of this people on beholding a foreign ship under similar circumstances, appearing on their shore.’

Peter Parker, 1838.

  • 1  Peter Parker was an American missionary and doctor, as well as one of the pioneering reporters on (...)

1When, over the course of the nineteenth century, Europeans intensified their contacts with Far and Middle Eastern societies, ‘vessels of a totally different construction, containing men of different speech, complexion and costume’ brought more than men. The ship that Doctor Parker refers to in his Journal of an Expedition form Singapore to Japan also carried within it some typically Western ideas of law, justice, politics, and civilization.1 Such ideas had an enormous importance for the future of China, the Ottoman Empire and many other non-European polities that, prior to the rise of Continental imperialism, had been relatively insulated from Western intrusion. The astonishment of some of the Chinese and Japanese indigenous populations upon seeing Europeans for the first time, given today’s globalized world, is hardly imaginable. How would we feel if, one morning, an alien ship, carrying creatures speaking an incomprehensible language and following radically different laws and procedures, landed on the shores of Lake Léman? And, after having found some tools for mutual comprehension, they told us all our previous conceptions of law and justice were wrong and backward? This thesis focuses on two case studies, in national and international law, of such early colonial clashes and encounters.

2The inspiration for this study stems from the observation that, today, the structure of most legal systems around the world is strikingly similar. There may be considerable differences in terms of substance, procedure or ‘efficiency’, but, almost all over the world, law is associated with courts, courts of appeal, university-level jurisprudential education, positive legal codes, a distinction between penal and civil legislation and so forth. In the course of a recent journey to Japan, I visited a university library in Fukuoka. While walking among the bookshelves, I came to the section on law where I randomly picked up a volume with an English title. It happened to be an English translation of the Japanese code on penal procedure. I was surprised by how closely its structure, as well as its substantive, technical terminology, resembled European volumes on the subject. Hence, this thesis developed from a personal curiosity as to how this process of legal ‘transplantation’ had occurred, and what the systems governing some Far and Middle Eastern societies had been like prior to their encounter with the West and its culture.

3This paper will explore the nineteenth-century rise of consular jurisdiction as the general practice of the vast majority of European and American states in their commercial (and other) relations with non-Western societies. Its main ambition is to illustrate how, through the rise and demise of nineteenth-century extraterritorial institutions, the indigenous societies of China and what is now Turkey were compelled eventually to ‘positivize’ their original normative systems. Arguably, it was through the flow of a considerable number of Western citizens, legal experts and, most importantly, legal ideas – and the parallel institution of consular jurisdiction to protect them – to the Ottoman Empire and China that the first encounters and subsequent clashes between some typical Continental notions of law and statehood and radically different, indigenous perceptions of normativity first occurred. As though by permeation or diffusion, such ideas took root in the minds and practice of local rulers and, perhaps paradoxically, said rulers eventually came to perceive assimilation as a prerequisite for the negotiation of the abolishment of extraterritoriality. As a matter of fact, because the revision of extraterritoriality was always conditional upon the implementation of massive legal reforms, based on the introduction of Western-informed, positive civil, commercial, criminal and procedural codes, it was at the very moment of its abolishment that the above-mentioned societies irreversibly entered the club of positivist legality and, consequently, ‘civilization’.

4China and the Ottoman Empire during the nineteenth and early twentieth century have been chosen as the substantial cases for this study due to a number of theoretical and historical considerations. Admittedly, extraterritorial consular jurisdiction existed in a variety of other polities in Asia and the Middle East. However, the surface of the globe that these two countries jointly cover is enormous, even more so in the past.  Furthermore, neither China nor the Ottoman Empire were ever directly colonized by Anglo-European powers; thus, they were comparatively insulated from Western influence over the course of the past centuries. Each existed in a long-lasting imperial system, and possessed a strong cultural identity, an internally pluralistic legal order, and, when contrasted with European tradition, two radically different languages.

  • 2  Accordingly, following the collapse of the Ottoman Empire, Mustafa Kemal Ataturk’s Turkey assumed (...)

5Consular jurisdiction followed remarkably similar paths within these two polities, from the increasing settlement of foreign expatriate communities within their territories, to the codification of aliens’ jurisdictional privileges in the form of ‘Unequal Treaties’, to the implementation of massive legal reforms as the price of said Treaties’ termination. Moreover, the encounter with Western nationals and ideas contributed to the rise of strong nationalist movements within both the Qing and Ottoman Empires, as well as to the outbreak of major revolutions.2 Lastly, this study is especially relevant for the understanding of contemporary international law, as it examines a time of radical transformation of the international system, when international law was constructing its identity as a practice and as a discipline.

  • 3  ‘One simply cannot think of political modernity without these and other related concepts that foun (...)
  • 4  Martti Koskenniemi, The Gentle Civilizer of Nations. (Cambridge University Press, 2002).
  • 5  For a similar approach applied to the post-WWII institutional networks, see G. John. Ikenberry, Af (...)

6Dipesh Chakrabarty argues that ‘concepts such as citizenship, the state, civil society, public sphere, human rights, equality before the law, the individual, distinctions between public and private, the idea of the subject, democracy, popular sovereignty, social justice, scientific rationality, and so on all bear the burden of European thought and history.’3 Accordingly, the significance of this thesis today lies in its provision of an overview as to how, why and when the expansion of Continental models of legality first occurred. International law’s function in this process as an acculturative institution should not be neglected, as it often acted as a ‘gentle civilizer of nations’.4 Institutions create order, conformity and reduce uncertainty; they establish norms of behaviour and may sometimes become self-reinforcing.5 In order to provide a concrete example of the acculturative function an institution, legitimized under public international law, may perform, this study concentrates on extraterritorial consular jurisdiction. For while it may be difficult to truly ‘think outside the boxes’ in which we were born, it is legitimate to wonder how they were constructed.

Notes

1  Peter Parker was an American missionary and doctor, as well as one of the pioneering reporters on the Chinese and the Japanese cultures before the intensification of Western business in East Asia. The citation can be found in Peter, Parker Journal of an Expedition from Sincapore to Japan: With a Visit to Loo-Choo, Descriptive of These Islands and Their Inhabitants, in an Attempt with the Aid of Natives Educated in England to Create an Opening for Missionary Labours in Japan.  (London: Smith & Elder, 1838). 8.

2  Accordingly, following the collapse of the Ottoman Empire, Mustafa Kemal Ataturk’s Turkey assumed the international legal obligations of its predecessors, including extraterritoriality and the desire to abolish it. A similar process affected the Qing Empire, which in 1911 formally became the Republic of China. While it is important for the reader to keep in mind such instances of succession, this thesis shall not include the comprehensive analysis of state succession. Hence ‘the Ottoman Empire’ and ‘Turkey’, on the one hand, and ‘the Qing Empire’ and ‘China’, on the other, will sometimes be used interchangeably.

3  ‘One simply cannot think of political modernity without these and other related concepts that found a climactic form in the course of the European Enlightenment and the nineteenth century.’ In Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference. (Princeton University Press, 2009). 4.

4  Martti Koskenniemi, The Gentle Civilizer of Nations. (Cambridge University Press, 2002).

5  For a similar approach applied to the post-WWII institutional networks, see G. John. Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars. (Princeton University Press, 2009).

Acheter

Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search