In this ambitious study, Li Chen excavates the early formation of European characterizations of China as the “quintessential oriental despotism” over the roughly 150 years preceding the First Opium War. By then, the stereotype of Chinese law as irredeemably brutal and unjust had emerged as a dominant narrative with sufficient strength to underwrite western demands for extraterritorial privilege. While a growing number of scholars have of late begun to deconstruct this orientalist discourse, Chen's contribution begins with a disarmingly simple question the answer to which is usually merely assumed: precisely how did this particular discursive formation acquire such normative and epistemic authority as to eclipse alternative historical narratives and continue to shape western views of China for the next two centuries? Chen's answer to this question is an empirically as well as theoretically masterful study that revisits divergent and often competing discursive formations beginning with the first publication of Montesquieu's The Spirit of the Laws in 1748 to the Opium War.
Chen begins with a critique of the once paradigmatic narrative that Sino-western conflict grew inevitably from a clash of incommensurable cultures. By itself, this is not particularly new or insightful. What sets Chen apart is his challenge to revisionist historians, including Edward Said, who presume a pre-existing internal coherence and “totalizing hegemony” of colonial power and discourse. With an abundance of archival documentation, Chen demonstrates that from the sixteenth to the early nineteenth centuries, the position of western nations vis-à-vis the Qing Empire was manifestly not marked by strength or hegemony but, rather, by precarious vulnerability and anxiety. The discursive structures of Euro-American dominance did not spring full-blown into existence but were instead very much constructed in a process of cultural, racial, and national boundary-making within the “contact zones” of empires. Throughout his study, Chen uncovers the multiple voices, competing interests and internal contradictions at the emergence of universalizing discourses of liberalism, humanitarianism, international law and, indeed, modern civilization.
Chen sets forth his arguments over the course of five roughly chronological case studies, each of which can be read alone but which nonetheless build upon each other to form a satisfying whole. He begins with a reexamination of the Lady Hughes case of 1784, wherein a gunner aboard a British ship anchored near Guangzhou fired in salute to a departing Dutch ship, hitting a Chinese vessel and killing one of its crew. Several days later, the gunner was turned over to Chinese authorities, tried and executed. As the last instance in which a British national was so relinquished, the Lady Hughes case subsequently became a rallying cry among westerners demanding extraterritoriality. The case itself grew out of the tension between British desires to recognize the territorial sovereignty of other nations and the desire for independence from Chinese law as an aspect of national identity and presumed cultural superiority, both of which were compounded by the subordinate position of western traders in China and the vital importance of the China trade. Insofar as the gunner would likely have been convicted of homicide even in a British court, Chen argues, British outrage actually had nothing to do with Chinese law other than that it was Chinese. In the years leading up to the Opium War and beyond, accumulated misconceptions of Chinese law and characterizations of the Qing government as both corrupt and despotic combined into a dominant discourse of cultural incommensurability. Relentlessly intoned by missionaries, traders, and historians, the discourse acquired an unassailable intellectual authority erasing any alternative interpretations. By the early twentieth century, the renowned historian, Hosea Morse, could thus confidently claim that the Lady Hughes case was the direct cause of the Opium War.
Chen next considers George Staunton's translation of the Qing Code, first published in 1810. The translation was of immediate utilitarian value in making Chinese law comprehensible to Western readers. This, in turn, afforded westerners a degree of “epistemic control” over the otherwise inscrutable Chinese by giving them the ability to decode and manipulate Chinese law in the service of western interests. As both a shaper and product of his age, Staunton's translation at once challenged many assumptions in regard to Chinese law and society while at the same time conforming to others. One example of how Staunton reshaped the Qing Code as he translated it is found in Chen's deconstruction of Staunton's title page. Staunton provided a romanized rendition of the Chinese title of the Code, Ta Tsing Leu Lee, followed by what might have been assumed to be its English translation, The Fundamental Laws of the Penal Code of China, neither element of which is actually derived from the Chinese title. Staunton's title page thus furnished a degree of exoticism while also framing the work in categories familiar to western readers. But in categorizing the entire Qing Code as penal, Staunton reduced a wide-ranging body of statutory law dealing with both civil and criminal matters to an entirely punitive tool of tyrannical power rather than an instrument of justice. Subsequent confusion arising out of the obvious lack of fit between such categorization and the substantive elements of the code did not lead to a reevaluation of Staunton's work but was taken as evidence of the irrationality of Chinese law and culture in general.
In his third chapter, Chen takes on nothing less than the narrative of the spread of European law and culture as the origin of global modernity by considering the unacknowledged role played by Chinese law in the formative stages of that discourse. Through an extensive analysis of European philosophers, jurists, and politicians, Chen finds a “phantomlike but persistent presence ” by which Chinese law served as both a positive and negative example in the conceptualization of western modernity. From Montesquieu forward, European writing is littered with characterizations of China as despotic. Yet at the same time, British lawyers and politicians who were attempting to reform the arbitrary nature of punishment and the discretion allowed to judges within the British legal system found in the Qing Code an admirable counter-example and model. Any possibility that this latter recognition might have undermined the former characterization was precluded, however, by the discourse of cultural inferiority within which discussions of Chinese law were framed. Thus, while in theory Chinese law may have had admirable qualities, in practice these were obviated by the corrupt and despotic nature of the Qing state. Meanwhile, those opposed to codification of British law as incompatible with British liberty cited China as a negative example in what Chen describes as an instance of nineteenth century British codiphobia being driven at least in part by growing Sinophobia.
Chen continues his examination of the role Chinese law played in the formation of Euro-American modernity in Chapter Four, where he describes the growth of what he refers to as “sentimental imperialism” in the nineteenth century. Through a series of case studies documenting the growth of humanitarian sentiment in the west alongside Euro-American representations of Chinese judicial cruelty, Chen demonstrates how western assumptions of universal liberty, humanity, and sympathy, the roots of the present-day discourse on human rights, provided the moral and theoretical basis for the creation of an international hierarchy of nations that linked sovereignty to putative degrees of humanity. Here again, characterizations of Chinese law served an indispensable role in the process of boundary-setting through the elaboration of cultural difference and national identity.
In his final substantive chapter, Chen links the discursive formations pertaining to Chinese law and society developed in previous chapters to Britain's ability to claim the Opium War as just. Chen notes that British opinion in regard to the opium trade and the onset of hostilities was far from united. Yet even among those who opposed the opium trade as immoral, the Chinese seizure of opium stocks constituted an offense against British property and national honor, thus framing the conflict as a primarily legal issue of what constitutes a just war under international law. At the core of this rationalization lay the relationship between international law and acknowledgment of the legal jurisdiction of sovereign nations within national borders. Tropes pertaining to the barbarity of its laws and the despotism of its government now facilitated the argument among British officials and parliamentarians that China was beyond the pale of international legal rights. This, however, did not absolve China of the obligation to obey international law in regard to the sanctity of property and national honor. Given the grievous injury that China has inflicted upon the British nation and its citizens in these respects, military force was therefore warranted. In this manner what was regarded by many as an immoral trade was transformed into an enabling discourse that essentially shifted the basis of Sino-western relations. The Opium War thus codified by treaty the idea that China was an exception to the tradition of territorial sovereignty because its laws were deemed incompatible with the now universalized notions of western justice.
The chief flaw in this work is a tendency toward over-theorization, particularly in Chapter Four. Thankfully, theory never outruns the empirical evidence Chen marshals in support of his claims. Some readers may be distracted by Chen's moralizing in regard to the present-day demonization of other groups in the name of international law or liberty. The text also contains several minor factual errors that might well have been caught by more assiduous proofing (the Kangxi emperor's reign, for example, began in 1661, not 1644). These faults notwithstanding, Li Chen has delivered a carefully crafted and highly articulate study that will soon be required reading for students of comparative law, imperialism, and Sino-western relations in general.
