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Exporting Legality

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Mariya Tait Slys

Methodology, Sources and Outline

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I. Methodology and Sources

1This thesis is a structural work exploring the historical process through which two political entities presenting remarkably different legal cultures were compelled to adopt a typically European legal architecture. More specifically, it will analyse and highlight the correlation between legal reforms and extraterritorial consular jurisdiction. Chinese and Turkish substantive laws are thus a matter of secondary concern, as the main focus of the research is the reformist macro-processes that affected the legal systems of these two countries. Hence this paper will examine procedural reforms, such as the institution of a hierarchically-organized system of courts and tribunals, as well as wide-scale codification projects in the fields of civil, criminal and commercial law. Moreover, it will emphasize the alleged structural deficiencies of the original Chinese and Turkish legal cultures  in order to better demonstrate the direction that their subsequent reforms were compelled to take.

  • 1 See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference. (Pr (...)
  • 2 For further readings on post-colonialist scholarship as applied to international law, see Antony An (...)

2The epistemic school of thought through which the present research is approached is post-colonialism. Post-colonialism, however, should not be understood in terms of dialectically opposed colonized and colonizing states. As a matter of fact, one of the primary objects of postcolonial critique is precisely the ‘constructed’ and Euro-centric nature of the ‘state’ as the core cognitive category of international history and law.1 Instead, post-colonialism will be interpreted in terms of a hegemonic epistemology of law that has been historically applied to China and the Ottoman Empire.2 In other words, legal cultures, rather than states, will be taken as the primary units of analysis. The paper applies this theoretical framework to Turkish and Chinese law and, more specifically, to the historic claim made by many Western observers that these polities ‘lacked a legal system’ properly speaking.Through the study of the rise and fall of extraterritorial consular jurisdiction, the paper provides a parallel genealogy of certain Western ‘Orientalising’ discourses and links them to the consolidation of legal identity both in Western and non-Western cultures.  

3This will be accomplished through a comparative studyin legal history. Firstly, the establishment and termination of extraterritorial consular jurisdiction in the Ottoman Empire will be compared to the parallel development of the institution in China. In order to better illustrate the similarities of this process, as well as to facilitate the identification of historically contingent differences, the two substantial chapters on extraterritoriality in the Ottoman Empire and China utilize the same structure, thematic order and titles. Secondly, a more anthropological approach will be used for a general comparison of the legal culturesof China and the Ottoman Empire beforeand after their encounter with the West. Hence, before engaging in the substantial study of consular institutions, I will attempt to describe generally these counties’ traditional laws and political systems, emphasizing the major differences vis-à-vis the predominant European legal and political ideas of the same period. Finally, the thesis presents a more implicit study of nineteenth-century doctrines of sovereignty, territorial jurisdiction and sovereign equality in international law as compared to with the conceptualization of such notions today.

4Thesourcesfor this project include original treaties establishing jurisdictional rights for Western nationals in China and the Ottoman Empire, as well as diplomatic correspondence and scholarly articles dating back to the origins of the institution. A variety of contemporary secondary sources, journal articles and monographs are also referenced, with the aim of providing an inter-disciplinary study combining different perspectives from the fields of international law, international history, legal anthropology and philosophy.

  • 3 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Em (...)

5It should also be noted that this thesis is greatly inspired by Kayaoğlu’s monograph Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire and China.3In particular, we use the same case studies and share a similar, post-colonial approach to the functions of extraterritoriality in domestic legal institutionalization. There are, however, some important differences distinguishing our respective research. Firstly, Kayaoglu’s primary argument is that extraterritorial consular jurisdiction had a pioneering role in leading China, Japan and Turkey towards the construction of state sovereignty. What I want to illustrate, in contrast, are the ways in which extraterritoriality contributed to the exportation of positivist legality. Sovereignty is in fact a much broader enterprise, as the process of state-building involves the radical transformation of domains such as the military, public education, the construction of novel infrastructures, the radical reorganization of the political administration, the creation of health-care institutions and so on. Examining positivist legality more narrowly thus provides a more specific focus of analysis, as it constitutes only one of the many facets of the modern state. Moreover, Kayaoğlu discusses the genesis of extraterritorial jurisdiction only briefly, while I aim to give its genealogy more historical depth. Additionally, I will provide an account of the law the Ottoman Empire and China possessed before their colonial encounter with the West. Lastly, I argue that, rather than extraterritoriality as such, the true legal imperialism is found in its legacy: massive legal reorganizations bringing radically different normative systems in conformity with Western ideas of positivist legality.

II. Outline

6Chapter 1 defines the notion of extraterritorial consular jurisdiction for the purposes of the present thesis. Following some theoretical reflections on legal pluralism, which characterized a great variety of legal arrangements in the past, a general account of the attribution of jurisdiction in cases involving aliens in ancient and medieval times will be provided. The main purpose of Chapter 2 is to illustrate the general epistemic framework governing the establishment of consular jurisdiction in Asia and the Levant during the nineteenth and early twentieth centuries. Accordingly, No Law Behind the Great Wall aims to deconstruct the narrative regarding the alleged ‘lack of law’ and ‘deficient legality’ that has been frequently applied to Far and Middle Eastern legal cultures. Additionally, the chapter will argue that such “Orientalising” discourses also contributed to constructing (international) legal subjectivity in the West. A brief account of the role legal experts played in this process, as well as of the importance of language in transmitting or distorting (legal) ideas, will follow. Chapter 3 analyses the birth, development and abolition of the capitulatory system in the Ottoman Empire. Similarly, the rise and fall of extraterritorial consular jurisdiction in China will be analysed thoroughly in Chapter 4. Finally, the Conclusion will contain some closing remarks, as well as a more detailed summary of the research findings.

Notes

1 See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference. (Princeton University Press, 2009). For further readings, see Walter Mignolo, Local histories/global Designs: Coloniality, Subaltern Knowledges, and Border Thinking. (Princeton University Press, 2012); James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. (Yale University Press, 1998); Prasenjit Duara, ‘Why is History Antitheoretical?’ Modern China , 24, No. 2. (1998): 105-120.

2 For further readings on post-colonialist scholarship as applied to international law, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law. (Cambridge: Cambridge University Press, 2007); Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-century International Law’, Harvard International Law Journal 40 (1999): 1-80; Eve Darian-Smith and Peter Fitzpatrick, eds. Laws of the Postcolonial. (University of Michigan Press, 1999); John L. Comaroff, ‘Colonialism, Culture, and the Law: A Foreword’, Law & Social Inquiry 26, no. 2 (2001): 305-314; Bhupinder S. Chimni, ‘Third World Approaches to International Law: a Manifesto’, International Community Law Review 8 (2006): 3-27;  Obiora Chinedu Okafor, ‘Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?’ International Community Law Review 10, no. 4 (2008): 371-378; Ratna, Kapur, ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’, Sydney Law Review 28 (2006): 665 – 688.

3 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010).

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