Grounds of Judgment departs from previous scholarship in that it approaches extraterritoriality from the Chinese and the Japanese perspectives instead of those of foreign actors in the treaty ports. In Pär Cassel’s narrative, China and Japan emerge as the main players in the encounter with the West, not the hapless victims of unequal treaties. This well-researched work sets forth how the establishment and the execution of consular jurisdiction were shaped and influenced by the traditional Chinese and Japanese legal orders and by their subsequent changes over the nineteenth century.
Extraterritoriality is a legal regime through which a state exercises [End Page 382] exclusive jurisdiction over its nationals in another state’s territory. After it suffered defeat in the Opium Wars in 1842 and 1860, Qing China was forced to conclude treaties with Western powers and to give up the right to try the citizens of those powers in the treaty ports. Trials of Chinese or foreigners without treaty rights in the concession areas were to be conducted by a mixed court of Chinese judges and foreign assessors. The signing of similar treaties in Tokugawa Japan, starting in 1858, precipitated the ignominy of extraterritoriality that continued until the Meiji government succeeded in abolishing it in 1899. For China it was not until 1943, in the midst of World War II, that the foreign powers relinquished their consular-jurisdiction privileges, which had aggrieved their wartime ally.
The Western powers justified extraterritoriality on the grounds that East Asian law and legal systems were not advanced enough to guarantee impartiality in the treatment and trials of foreign nationals. Meiji leaders accepted early on that legal reforms were essential in order to abolish extraterritoriality and to achieve international parity with Western nations. Qing authorities, in contrast, remained largely oblivious to the need to revise the treaties. For most of the nineteenth century, states Cassel, there is little evidence that the Qing government made a concerted effort to abolish extraterritoriality. Whenever an “extraterritoriality incident” occurred, that is, whenever Westerners who committed crimes in the concession areas evaded Chinese courts due to extraterritoriality, Qing officials “shied away from mobilizing public opinion, and instead they did their utmost to secure the best possible outcome within the confines of the existing legal order” (p. 163). Why this debilitating indifference and costly complacency? After all, Cassel argues—this is one of the main arguments in the book— that “extraterritoriality was not necessarily incompatible with a Chinese legal sensibility” (p. 39).
Cassel is keen to dismiss the standard narrative that the Chinese and Japanese vigorously but unsuccessfully opposed the Western demand for extraterritoriality. Far from the common belief that the Qing government resisted the imposition of extraterritoriality, Cassel finds that “some of the privileges that were later decried as imperialist impositions on China were actually offered to the Western powers by Qing officials voluntarily” (p. 47). He embraces John King Fairbank’s insight that the treaty system was “a Ch’ing device for accommodating [End Page 383] the West and giving it a place within the Chinese world.”1 Historians have shown that a distinct East Asian interstate system existed in the borderlands in the premodern period and that the multi-ethnic Manchu empire pursued a flexible legal policy toward the peoples in the outer regions, such as the Miao, Yao, Muslims, and Mongols.
Cassel stresses that extraterritoriality was not a foreign concept suddenly thrust on China in the nineteenth century. He shows, in particular, how the Qing institution of judicial subprefects served as a precedent to extraterritoriality and the mixed courts in Shanghai. Judicial subprefects adjudicated “mixed cases,” such as disputes between Manchu bannermen and Chinese civilians, in a joint trial with local officials. When Qing officials agreed to set up mixed courts that included foreign consuls, they were drawing on their experience of managing interethnic disputes (p. 67). Continuing the traditional policy of not interfering in conflicts between foreigners, Qing officials saw treaties granting extraterritoriality as normal diplomatic strategies. Thus, “the Qing...