Extraterritorial Courts in East Asia: Cross-Border Judicial Activity in the Crosshairs

Can any study of legal history limit itself to a single nation-state? Posing such a question is a brazen act—at least among American historians, many of the most illustrious of whom have long considered foreign institutions in modern colonial settings to be of marginal importance. During the early 1980s I stumbled upon contemporary accounts of foreigners operating courts in China. While I was checking out one such account from Stanford's library, David Kennedy looked down at the word “extraterritoriality” in the book's title and exclaimed, “Extraterritoriality? I thought no one was working on that!” Several years later, Jonathan Spence urged me to choose the wholly national Chinese Supreme Court for my doctoral dissertation, rather than the multinational International Mixed Court of Shanghai. (It was the only time I ignored his advice.)

Two recent books push back against that long-prevailing diminution of extraterritoriality by affixing such cross-border activities in their crosshairs. Pär Kristoffer Cassel's Grounds of Judgment and Teemu Ruskola's Legal Orientalism, convincingly reveal the importance of extraterritorial courts by pulling off that most difficult of tasks in legal history, namely, the telling of a detailed narrative and then illuminating it with connections to larger concepts. For both Cassel, a historian, and Ruskola, a law professor, foreign courts in East Asia provide a rich trove of material on grand themes about modern history that these authors could not have developed by researching purely national courts. Their ambitious projects build for us a richer picture of how a predatory version of such courts left a lasting impression on the people who were subject to them, and even on the people who operated them. In addition, until now, East Asia has not figured prominently in such studies. Not only have these two authors gone a long way toward filling this gap, but the significance of researching cross-border courts is clearer after Cassel and Ruskola have trained their prodigious talents on them. Their success lends support to the notion that legal historiography is—or will be from now on—in large part a cross-border enterprise.

We can profit in another way by reading Cassel and Ruskola side by side with an eye toward the methods they use to approach the legal institutions that regularly ran roughshod over national boundaries and touched multiple nationalities in nineteenth- and twentieth-century East Asia. The growing ranks of legal historians fixating on cross-border institutions are deploying contrasting strategies upon this target. One is the stealth offensive, the other, the tactic of “shoot-first-ask-questions-later.” Grounds of Judgment and Legal Orientalism provide prototypes of these two approaches. I hope that by focusing here on their differences, we can gain insights into a larger divide in our discipline. I refer to the divide between scholars with Ph.Ds who toil in the undercompensated, inglorious trenches of history departments, on the one hand, and the well-paid law professors armed only with J.D.s, on the other hand, who earn their keep, sans teaching assistants, by entertaining hundreds of high-paying law students whose heads are filled with get-rich-quick schemes.

Cassel and Ruskola both aim their studies at the concept of modernity, but they enrich our understanding of it in almost opposite ways. Cassel is interested in complicating the old story of modernity in Asia as something that was thrust upon those places from the outside. His story about China and Japan reveals indigenous innovations designed to acknowledge and accommodate disparate groups. Foreign courts in China and Japan during the late nineteenth century were grafted onto this native base.

His narrative tracks some familiar ground for China historians who have, for several...