Chinese Law in Imperial Eyes

The growing interdependence of China and Western countries in a globalized world has significantly changed the power dynamics underlying Sino-Western relations. But for many observers, China’s law and government appear almost as totalitarian and objectionable as they did one or two centuries ago. If anything, this book has shown how this impulse to essentialize and politicize racial, cultural, or national identity and difference could hold the Sino-Western relationship hostage and eventually lead to catastrophic conflicts. We need to rethink rather than reify the historical constructions of boundary and hierarchy in international relations to prevent the concerns about the clash of civilizations or empires from becoming self-fulfilling prophesies again.

When attempting to appropriate Western concepts or institutions, Chinese intellectuals and reformers in the late nineteenth and early twentieth centuries often adopted the strategy of bifurcation—splitting the idea of the West into a “metropolitan West (Western cultures in the West) and the colonial West (the cultures of Western colonizers in China).” As Shu-mei Shih and other scholars have shown in relation to Chinese modernity, this strategy enabled Chinese intellectual or social elites to represent the metropolitan West “as an object of emulation, which often resulted in diminishing the [colonial West] as an object of critique.” Thus, Chinese intellectuals could promote Westernization without being seen as “collaborationists.” However, they did become cultural brokers or mediators in the contact zones of a new era. It is worth recalling that many European intellectuals in the eighteenth and early nineteenth centuries—such as Montesquieu, Staunton, Sir John Barrow, and Lord Francis Jeffrey—had also utilized a similar bifurcation strategy, recommending some Chinese laws or legal principles as worthy of being borrowed by European countries even while dismissing the legal system as suitable only for Oriental despotism.

It is also worth reiterating that China, viewed as an archetypal state of Oriental despotism, likewise exerted a profound influence upon Western modernity, by negatively defining what was not a modern civilization or a modern political or legal system. To put it rather simplistically, both such “positive” and “negative” Chinese impact should be taken into account when discussing Sino-Western encounters and cultural exchanges. What further complicated the situation is the fact that many Chinese later utilized various Orientalist representations of Chinese law or civilization to push for “modernization” of China, ironically, in order to end foreign domination.

Even after China had been reduced to a semicolonial country as a result of the two Opium Wars, the Western empires rarely based their China policies on their military or political domination. Instead, those policies were most effectively represented as necessary for redressing or preventing injury to life, property, treaty rights, or national feeling. This narrative of native injury to the dominant power was by no means confined to the Sino-Western relationship. Its popularity and efficacy in modern politics lies precisely in its liminal position—just like sentiment itself—which enables it to appeal to affect and emotions without being fully bound by formal legal or moral norms, and to claim legal and moral authority without losing its emotional power.