The English Poet, Rudyard Kipling believed that the western civilization was duty bound to enlighten the more brutish and barbaric parts of the world. His poem, the White Man’s Burden opens by referring to these people as “new-caught, sullen peoples, half devil and half child”. This Orientalist view of the world, though much more acutely prevalent in Kipling’s times, still continues to exist, and according to Professor Teemu Ruskola of Emory University’s School of Law, the modern world is an orientalist world, and we have no choice to live outside of it.

Professor  Ruskola, in a talk at the Centre for the Study of South Asia on November 11, 2014, spoke about the manifestation of Orientalism in law and legality in the United States’ dealings with China. He claimed that while the study of legal orientalism is merely considered to be an epistemological argument, legal orientalism itself has become material practice. The question, however, that lay before us was to understand how China fit into the legal institutions of modernity, given our understanding of law as a technology of world making? The image of ‘law’ in China is resonated by images of violence, repression, and incidents like the Tiananmen Square Massacre of 1989. Following the collapse of the Soviet Union, China has emerged as the world’s largest law repressor in western eyes.

Historically, this legal orientalism has allowed the United States to view China with the same lens. The United States opened and operated the U.S. Court for China in Shanghai through the first half of the 20^th century. This court gave the United States extra-territorial powers over its citizens in China, whilst undermining the supremacy of Chinese law within its own territory. According to Ruskola, “Chinese values were coded as being universally particular, while American values were particularly universal”. He also held the opinion that the United States saw itself as the embodiment of law, as opposed to Chinese ‘lawlessness’. Thus, having knowledge of Chinese backwardness had granted them the privilege of extra-territoriality. Ruskola asserts that these ideas have impeded the academic study of Chinese law.

The realm of international law only came into existence following the Treaty of Westphalia in 1648. While European colonialists largely disregarded international law in their conquests, the Americans created their own model which they believed was far from being imperialistic. They decided to adopt the non-territorial imperialism practiced by the British in China following the Opium Wars. According to Ruskola this extra-territorial control, instead of colonization, was based on the idea that the Chinese had civilization but were however not equipped for the modern world. This can be explained by the American dispatching of Christian missions as opposed to ‘civilizing missions’ that were sent to places like the Philippines.

A secondary purpose of establishing legal extra-territoriality in China was to decriminalize Americans. Ruskola argues that it instead ended up de-Americanizing  criminals by creating double standards. While Asian immigrants in the United States were not equal under the law, governing American citizens under a separate law in China was only reaffirming their strict adherence to orientalist thought. This implementation of the ‘white lawyer’s burden’ was largely counterproductive. Instead of providing a model for China for legal modernization, it lead to judicial despotism, much like the use of imperialist despotism that gave them the legitimacy to establish extra-territoriality in the first place.

While China races into modernity, it will be interesting to see how western perspectives on Chinese law and legality transform. Will the Orientalist perspective stand, or will China’s economic modernization and large global market share lead to the West adhering to Chinese legal requirements? This is yet to be seen.

Professor Teemu Ruskola has recently authored a book titled ‘Legal Orientalism’ (Harvard University Press, 2013)

-written by  S. Taha H. Shah, a third year student in the Contemporary Asian Studies Program

This article is part of  a series of articles written by undergraduate students affiliated with the Asian Institute about events hosted by the Asian Institute.