Law & Sensibility of Empire in the Making of Modern China

A review of Law and Sensibility of Empire in the Making of Modern China, 1750-1900, by LI CHEN.

Li Chen’s dissertation title is too modest. The dissertation goes a long way toward demonstrating not just how law (British) and sensibility (British) made and remade modern China (a significant accomplishment), but also how law (Chinese) and sensibility (Chinese) made and remade modern Britain and the British empire. Or rather, that it was the circulations of a discourse of law and sensibility, backed by competing imperial assertions of sovereignty, which remade Qing China and Britain. The argument that Britain’s colonial experienceremade the home islands is no longer new, but it is new to consider China (not just India) as fundamental to this domestic refashioning. This argument is also fresh for reevaluating something as fundamental to a liberal Anglo-self-identity as legal institutions.

Law and Sensibility is an archaeology of sinological knowledge of a high order. If Fairbank, or Bodde & Morris are easy targets by now, Frederic Wakeman, usually associated with an improved “China-centered” approach, is also indicted by Chen for being misled by discursive tropes of nineteenth-century British sinology that associated China with xenophobia and barbarity, and saw Britain’s civilized modernity as being ‘injured’ by its contact with Chinese law. The project takes as its goal a historiographical housecleaning of Chinese legal history, providing “a much needed historical and global context in which Chinese legal history and transformation can be reexamined without being handicapped by the binary of Chinese/primitive tradition versus Western/civilized modernity” (p. 24).

In a historiographical introduction, Chen situates his project firmly in the new wave of postcolonial studies which move beyond issues of economic imperialism to the realm of culture. In the China field, Chen’s work most resembles that of Lydia Liu, Jerome Bourgon, and James Hevia and, like them, Chen traces the geneaology of the notions of international ‘law’ and ‘sovereignty’ through a series of case studies.

A pattern emerges from these legal cases which can be summarized like so: British sailors and soldiers were, according to their own officials, “disorderly, violent, and in every way [engaging in] imprudent behavior” in China, engaging in behavior which “could not be pursued with impunity in England or any other civilized country” (p. 463); when Chinese died as a result, British officials obfuscated the process of Chinese law by hiding the perpetrators, or requesting extraterritoriality while attempting to discover legal loopholes to avoid any form of Chinese justice, no matter whether they deeply regretted the behavior of their fellow Britons or not: “such abstract sentimentalities cannot, in the nature of things, rule the Administrators of [a Western] Government” (p. 473).

Qing emperors and imperial officials, for their part, operated between the poles of mercy and terror, between coercion and benevolence (p. 64). Their goal: maintaining legal and territorial sovereignty, thus putting them in direct opposition to British imperial interests. If Qing officials were lenient, they were seen by the British as venal and corrupt. If they strictly followed the Qing due legal process (closer to Enlightenment ideals than pre-1832 British law, or even later nineteenth century British legal practice) and executed a foreigner found guilty of murder, then this quickly became ‘proof’ of Chinese barbarity and one more reason why the British should not be subject to Chinese law.

While the basic pattern of British injury repeated itself throughout the 150 years of the study, the results were cumulative and created a feedback mechanism increasingly in favor of the British, enshrined in extraterritoriality after 1842. A negative precedent, from the perspective of the British and subsequent sinologists, was established in the case of Lady Hughes in 1784 at the height of the Qianlong reign (Ch. 1). A stray cannon shot in a crowded harbor (illegal under Chinese or British law) killed two Chinese, and British lies and obfuscation followed until the Chinese governor seized the supercargo demanding the gunner be turned over for trial. The gunner was tried, found guilty, and executed. In the Anglo-American telling of this event over the next two-and-half centuries, the Chinese offered no due process and no humanity. From the fluent and literate bilingual Staunton’s translation and publication of the Qing legal code (Ch. 2), to the writings of Thomas Meadows or Montesquieu’s Spirit of the Laws, Chinese lack of sensibility regarding proper law became axiomatic. Counterintuitively, for some Enlightenment legal reformers, Chinese law became a model, and even Montesquieu admitted that his very negative picture of Chinese despotism would be proven false if he had to take into account Chinese law (Ch. 3, p. 192).

European certainty of Chinese barbarity was secured when images of various Chinese punishments circulated for decades (Ch. 4). No matter what laws were on the books in China, these images were proof for Montesquieu, Hegel, or John Stuart Mill, that Chinese punishments were barbaric and followed no legal code.

By the time of the Opium War, the sensibility of ‘fairness’ and ‘injury’ hitherto applied unidirectionally by the British began to be used by the Chinese, notably by Commissioner Lin in his famous letter to Queen Victoria (Ch. 5). While this use of the British sensibility of injustice and injury won over some critics as high as British Parliamentarians, the final peace settlement enshrined British extraterritoriality in China. With this legal foothold, the British proceeded to use a number of further legal disputes in the 1840s and 1850s to increase their sovereignty at the expense of the Qing and local Chinese villagers who might come into contact with unruly Britons. Chinese officials were now forced to summarily punish any Chinese defending themselves against British trespassers, even when provoked. It was more than a bitter irony that the executions of the Chinese were then witnessed by Britons as ‘proof’ of Chinese legal barbarity (Ch. 6). When elite Chinese became aware of Western law in the translations of Yan Fu at the end of the nineteenth century, it was to the compromised accounts of Montesquieu and Mill that they turned, increasingly denouncing the barbarity of Chinese law.

Li Chen’s work deserves a wide audience beyond sinologists among scholars and practitioners of international law and legal reform.

David Luesink
Department of History
University of British Columbia

Primary Sources

East India Company Factory Records at the British Library
British Parliamentary Papers
Number One Historical Archives (Beijing)
Contemporary Newspapers (esp. The Times in Britain; Chinese Repository in China)
Nineteenth-century sinology (works of Montesquieu; G. T. Staunton; T. Meadows; Hegel, etc.)

Dissertation Information

Columbia University, 2009. 622 pp. Primary Advisor: Madeleine Zelin.