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Exporting Legality

Mariya Tait Slys


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1The purpose of this thesis has been to show the ways in which China and the Ottoman Empire came to ‘positivize’ their legal cultures through the institution of extraterritorial consular jurisdiction over the course of the nineteenth and early-twentieth centuries. I have examined the question as to how two political entities that remained comparatively insulated from Western influences and possessed radically different conceptions of law and justice, eventually came to adopt typically European jurisprudential logics. Although the substantive laws of China and modern Turkey certainly diverge from those of the various European and American legal systems, the underlying structural architecture is strikingly similar. Not only did positum legal codes of criminal, civil, commercial and procedural matters become the primary sources of Chinese and Turkish law, but the structure of these counties’ adjudicatory mechanisms and the organization of legal education also conformed to Western standards. Consequently, the Enlightenment’s notion that the law shall be validated by its form – i.e. official pronouncements, emanating from a sovereign legislator, codified into comprehensive legal codes and founded upon a social contract among its subjects – gradually took hold China and the Ottoman Empire.

2My broader argument is that extraterritorial consular jurisdiction was the centrepiece of this process. Not only did Western promises to abolish it promote and accelerate the Chinese and Ottoman reform efforts, but the existence of extraterritoriality also contributed to the diffusion of Western legal structures, political ideas, cognitive categories, cultural values, social practices and normative beliefs throughout the Qing Empire and Turkey. This, in turn, was largely due to the settlement of ever-expanding expatriate communities, whose rights and property were protected by extraterritorial jurisdictional guarantees, in Asia and the Levant. The dissemination of such novel ideas then played a major role in pushing China and Turkey to ‘modernize’ their judicial and political systems in conformity with typically Western standards of ‘progress’ and ‘civilization’. Such reformatory programmes were further motivated by the strong desire of the Chinese and Turkish leaders to abolish extraterritoriality. Through the analysis of a variety of treaty provisions, diplomatic correspondence and academic writings, this thesis demonstrates the substantial connections between Euro-American promises to terminate ‘Unequal Treaties’, on the one hand, and their parallel demands that China and Turkey reform their domestic legal systems in accordance with Continental jurisprudential ideals, on the other.

3Following a general illustration of what is meant by extraterritorial consular jurisdiction, the paper provides an overview of its early articulations in the Mediterranean. It is argued that consular institutions granting a special jurisdictional status to aliens were not a novel invention of the nineteenth century, but rather that their origin can be traced as far back as the age of Antiquity. Having emphasized the non-territorial nature that characterized legality during that era, as well as the substantial differences between early proto-consular institutions and the meaning that extraterritorial jurisdiction later assumed, I further explore the institution’s manifestation during the Middle Ages. With the rise of the so-called doctrine of the personality of laws, it often occurred ‘that five men, each under a different law, would be found walking or sitting together’.1 This pluralistic and fragmented legal environment in turn promoted the development of ‘judge-consuls’, charged with administrating justice in disputes involving merchants conducting business overseas. It was, however, only with the rise of the doctrine of territoriality as the primary basis for the attribution of jurisdiction, and the parallel ascendance of state sovereignty on the Continent, that consular adjudication – and its extraterritorial applications – became a public competence of the sovereign state.

4Understanding the predominant epistemic milieu that characterized Western legal scholarship during the nineteenth century is key to understanding the establishment of extraterritoriality in the Far and Middle East. Since the traditional Chinese and Turkish normative orders were generally characterized as ‘chaotic’, ‘lawless’, ‘irrational’ and ‘unsatisfactory’, Western powers believed that the establishment and/or maintenance of special jurisdictional guarantees for resident aliens were indispensable. Hence, extraterritorial consular jurisdiction was a direct consequence of the common belief in an alleged ‘lack of real law’ in Asia and the Levant. Such a belief in turn contributed to the consolidation of Western legal identities and the framing of what did and did not constitute (international) ‘law’. Legal ‘experts’ played a key role in this process of discursive ‘Orientalization’, as they were frequently the first evaluators of Chinese and Ottoman ‘legality’, measured by reference to the strict standards of Continental legal positivism. Their role in filtering and (poorly) translating those countries’ cultures, as well as in performing political functions, was fundamental to the legitimation of consular jurisdiction. Language and translation also contributed considerably to the production of the collective ‘misperception’ of the alleged lack of law in China and Turkey, as, at that time, very few European officials knew Chinese or Arabic.

5In the Ottoman Empire, Western consular jurisdiction developed as a result of the long-lasting custom of the concession of capitulary privileges by the Ottoman sultans. The capitulations were voluntary commercial legations the Sublime Porte traditionally granted to foreign traders as a sign of friendship and grace, as well as a direct consequence of the belief in the immiscibility of the alien into its religious community. Following their codification into the form of positive treaties backed by an enormous potential for military coercion, however, such early jurisdictional and economic privileges came to be abused over the course of the nineteenth century. The Sublime Porte perceived the ever-increasing numbers of consular courts within its territories as constituting a multiplicity of governments within the government, thus rendering the ordinary administration of justice extremely difficult. The factual evidence that aliens were not only virtually immune from local laws, but also often went unpunished by their own legal procedures exacerbated the internal opposition to extraterritoriality. Therefore, beginning with the 1856 Congress of Paris and its unfulfilled promises to abolish consular jurisdiction, the Ottoman rulers repeatedly attempted to terminate these ‘Unequal Treaties’. Western demands for the ‘modernization’ of the Turkish legal system as a necessary condition for the abrogation of their capitulary privileges usually followed. After several decades of massive legal reforms aimed at ‘Westernizing’ the Ottoman legal culture by transplanting positivist Continental codes and procedures, diplomatic negotiations in the course of the1923 Lausanne Conference led to the abolition of extraterritorial consular jurisdiction.

6No coherent custom of granting foreigners special jurisdictional status existed in China before the arrival of Europeans. As such, the East India Companies played a pioneering role in essentially garnering their traders de facto immunity from local laws and customs – particularly with respect to penal matters. Extraterritorial consular jurisdiction was only formally instituted, however, following the first Opium War between the Qing Empire and Great Britain, which concluded in 1943. The capitulatory regime of the Ottoman Empire served as both a practical and theoretical frame of reference in establishing ‘Unequal Treaties’ in East Asia. The American and a variety of other European governments soon followed the British Example. As in the case of Turkey, internal opposition to foreign legal privileges gradually developed among the Chinese, particularly following the 1911 nationalist revolution. Strikingly similar to events in the Levant, Western demands for wide-scale structural administrative and judicial reforms were sufficient to rebuff the Chinese desire to abolish extraterritoriality. A century after its institution consular jurisdiction was finally abolished, through a joint Anglo-American initiative in 1943.

7Hence, the legacy of extraterritoriality in China and the Ottoman Empire was the structural readjustment of their indigenous legal cultures to comply with typically Western conceptions of law and normativity. China and the Ottoman Empire are, however, just two examples of a much broader phenomenon. Western powers also invoked extraterritorial consular jurisdiction in Algiers, Morocco, Tripoli, Tunis, Persia, Muscat, Zanzibar, Egypt, Congo, Abyssinia and Madagascar. In the Far East, it extended to Japan, Korea, Siam, Borneo, Tonga and Samoa. It had also previously applied to many other areas, such as India and Malaya, where it ended only when they became formal colonial possessions.2 Although a comprehensive treatise of the legal history of the institution these areas is clearly beyond the scope of this thesis, it is likely that, at least to some extent, extraterritoriality influenced the internal legal and political development of these polities as well.

8The purpose of this thesis is not to reject, a priori, Western legal categories as evil or flawed. Nor does it aim to present an idealized or nostalgic depiction of nineteenth century law in China and the Ottoman Empire. Instead, this work is a small contribution towards ‘provincializing Europe’ through the demonstration that many conventional European legal categories, which today appear profoundly normal, were not natural manifestations of every legal culture around the world.3 Their transplantation to radically different societies was rooted in a hierarchical epistemology of progress, wherein civilization was understood as directly proportional to legalization. Accordingly, it was only when Western governments terminated their Unequal Treaties’ that China and Turkey formally became ‘civilized’ members of international society.4When, in contrast, a country’s law significantly differed from European ideas of legality, the country was dismissed as merely stagnating in the ‘Third World’. Yet, cultures – including legal cultures – do not come labelled with ordinal numbers.5 And thus, the great epistemic question remains: Who sets the standard of civilization and who becomes its object?

91  The statement appears in Friedrich Karl Von Savigny, Geschichte des römischen Rechts im Mittelalter vol.i. (Heidelberg: JCB Mohr, 1834). 116.

102  See George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948); Shin Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969).

113  Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference. (Princeton University Press, 2009).

124  Gerrit Gong, ‘China's Entry into International Society’, In The Expansion of International Society, ed. Hedley Bull and Adam Watson. (Oxford: Clarendon Press, 1984: 183).

135  See Teemu Ruskola, ‘Legal Orientalism’, Michigan Law Review 101, no. 1 (2002): 185.


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