Introduction
Sun Jingxian and Ma Weifu were Han Chinese farmers of no particular political creed.Footnote 1 Their land, situated on two small islands where the river met the sea, produced nothing spectacular, just reeds. Yet their names would make it into the archives of not just one, but two former great states. Depending on whose account is consulted, they were variously simple farmers, squatters, troublemakers, or traitors. Only one thing seemed clear: they doubled as peasant lawyers and they staged nothing short of a legal spectacle. The story started in the 1900s, when things took a wrong turn in the farmers’ corner of the world. In those years, states all around them scrambled to lay claim to frontier lands like theirs in Manchuria. We do not know the date of the farmers’ first encounter with scouts of the Japanese empire. But we do know that the encounter was, in the farmers’ view, rather undesirable. The farmers’ islets sat in the Yalu River, the border separating the expanding empire of Japan from the Great Qing. And Japanese officials decided that the farmers were an imperial problem.
Yet this would not be a story of empire building. Strangers to high diplomacy, the farmers were nevertheless vernacular experts in something just as potent: the law. The land mattered to them not because it was imperial territory, but because they had invested decades of labour to reclaim the ‘riparian wasteland 淤灘’ as their possession.Footnote 2 And they would spend the next decades fighting in many courts of law and in the many shadows of the law to defend their work. No legal education could have prepared them for the struggle. But their legal strategies would be of a most cosmopolitan kind. They would cobble together contractual arrangements to map Manchu customary practices onto Japanese structures of rights. They would go to Chinese and Korean courts and make their case using the transnational lingua franca of civil justice. And they would knock on the door of the local American consul. Having confronted multiple empires and consorted with actors on as many sides, they would turn the islets of reeds into webs of rights. This article is about the farmers’ machinations, which spanned two decades and five legal regimes. It is also about the operations of those legal regimes in the Northeast Asian borderland. Despite pressure from the states for borderlanders to be subjects with undivided loyalty, the farmers remained recalcitrantly transnational in a space of laws and private rights. And they were aided, quite counterintuitively, by a group of state-appointed judges. The combination of circumstances allowed the farmers to venture beyond national legal formations and emerge as transnational subjects of justice. Theirs was a vernacular way to make sense of global legal modernity. One might call it grassroots legal cosmopolitanism.
The thesis: Legal plural-cosmopolitanism and the judicial backstory of inter-imperial rivalry in a Northeast Asian borderland
This territorial dispute was a defining moment in the colonial international relations of Northeast Asia. Historians have written about the dispute in its early phase in the 1900s, using it as an example of inter-state conflict in the age of imperialism. In that narrative, the Japanese empire shaped the course of events through negotiations and clashes with the Qing state in a riparian environment.Footnote 3 These valuable contributions in international and environmental history have expertly illustrated the actions and perceptions of the state and its agents. I tell a different story from the bottom up using newly discovered local archival documents from Northeast China, where much of the drama unfolded. A legally informed cross-examination of the Japanese/Korean sources and these new documents show that Chinese farmers and local judges of various origins played a crucial role in the saga. Whereas the political regimes ‘saw’ the wetlands haphazardly through the lens of territorial sovereignty, local farmers, I argue, leveraged their vernacular knowledge about the pluralistic legal environment of the borderland to advance a different set of goals. They combined concepts from multiple land regimes to design a sophisticated structure of rights, which enabled their private claims of ownership to coexist in an uneasy symbiosis with the territorial claims of the two states for decades.
This microhistory of a transnational dispute, one of several hundred whose documentary trail I found in the archives of Northeast China, offers several interventions in the macroscale narrative about law and inter-state rivalry in early twentieth-century Northeast Asia. Manchuria had been the homeland of the Manchu ruling elite of the Qing empire (1644–1911), but by the turn of century, however, the region had become a battleground of three states. The Russian empire occupied the region between 1900 and 1904. After its defeat in the Russo-Japanese War (1904–1905), Russia retained its influence in the northern parts of the borderland. The Japanese empire seized control of the Korean Peninsula in 1905 and annexed Korea in 1910. From there, it extended its tentacles across the Yalu River border into Manchuria, establishing an informal sphere of influence on the Liaodong Peninsula in the south. The Qing and Republican Chinese states both claimed sovereignty over the borderland and controlled the areas outside the concession zones. After 1916, the Republican Chinese state exercised that control haphazardly through Zhang Zuolin, a Han Chinese general with an independent streak. For the quarter of a century between 1906 and 1931, the three states coexisted in an uneasy power equilibrium in the Manchurian contact zone.
So, too, did multiple legal systems operate simultaneously in the borderland space. For much of its reign, the Qing governed Manchuria through inter-ethnic legal pluralism, subjecting Han civilians and banner people to different jurispractices.Footnote 4 These populations, in turn, developed unofficial ways to cross state-imposed legal boundaries, especially in relation to property.Footnote 5 The encroachment of the Russian and Japanese empires into the region overlaid that inter-ethnic legal pluralism with inter-imperial legal pluralism.Footnote 6 That is, each empire also brought a system of legal concepts and practices into the borderland. These two forms of legal pluralism—one from the era of the Qing conquest, the other born out of the meeting of modern empires—became enmeshed at an everyday level. Sitting at the intersection of the two layers of legal pluralism, the Manchurian farmers managed to utilize concepts and strategies from one pluralistic legal order as they negotiated their way through the other.
Their actions add to our understanding of law under empires. Historians have described two forms of bottom-up action in the context of colonial legal pluralism. Some legal actors manipulated the differences between coexisting jurisdictions to maximize their interest in what Mary Lewis called ‘jurisdictional jumping’.Footnote 7 Others used indigenous legal instruments and channels to continue transnational economic activities despite the presence of European colonialism.Footnote 8 The distinctive dynamics of law in Manchuria allowed the legal actors there to do something that was different from both of the patterns above. The farmers found a middle ground between the Qing and Japanese systems of jurispractices, and used their vernacular knowledge of law to bridge the divide between those systems. Rather than manipulating jurisdictional differences through forum shopping, they took advantage of the jurispractical convergence between previously separate legal worlds.Footnote 9 That is, legal pluralism in Manchuria was not just about differences, but also about the compatibility of competing yet converging legalities.
The farmers’ legal sensibilities in the above context also point to a different modality of local agency in a borderland setting. An excellent body of scholarship on Manchuria has emphasized the role of local actors in the processes of state-building in the region. Nianshen Song stresses the ‘problem-solving efforts’ of local officials in the making of the Tumen border.Footnote 10 Alyssa Park, Sören Urbansky, and Victor Zatsepine document how migrants circumvented state-imposed restrictions through smuggling, forgery, and the ‘creative use’, or selective invocation, of state laws in the Sino-Russian border zone.Footnote 11 The case here moved beyond acts of state evasion or, in other words, the subaltern’s art of not being governed.Footnote 12 It shows how the use of laws of property and contracts under conditions of legal pluralism changed the nature of people’s engagement with the state.Footnote 13 Legally literate borderlanders did not just confront or evade the state in a state-subject relationship. Rather, these borderlanders and agents of the state both acted as active legal subjects in a polycentric judicial field, where they used the common language of civil justice to negotiate for settlements.Footnote 14 That judicial lingua franca in the transnational space allowed the farmers to reframe an issue about territorial sovereignty into a dispute over private rights and to engage state agents on a more equal footing as actors in the shadow of law. Historians of the British empire have discussed how colonizers used modern property regimes to facilitate extraction.Footnote 15 Borderlanders, however, also mobilized property regimes to aid their resistance.
These dynamics in turn invite further interrogation of the nature of East Asian state(s) on their peripheries in the first half of the twentieth century. The farmers were able to do the above because the legal institutions of the borderland enabled them. Recent scholarship on China’s borderlands has rightly highlighted the overall expansion of state capacity in these regions through migrant control, infrastructure building, cultural construction and so on.Footnote 16 The present case, however, complicates the picture by showing the dissonance within the state. Each state regime in Manchuria was in fact the uneasy coexistence of two entities or two sets of practices: the political apparatus and the institutions of justice. Whereas the political apparatuses of the state competed with other states for the control of territory, the judicial institutions exercised power by promoting other objectives such as transnational norms of legal technicality. Legal professionals of Chinese, Japanese, and Korean nationality brought those norms into the region through their shared education in a particular moment of legal modernization in East Asia.Footnote 17 The tensions between the two sets of institutions and practices within each state laid the groundwork for the open, audacious endeavours of non-state actors to engage the state in the field of law.
More broadly, this story of legal pluralism in the Manchurian borderland is also about the qualities of Eurasian cosmopolitanism. It offers an East Asian perspective on a key problem of global legal modernity: how to protect individual rights from the encroachment of modern nation-states in a global judicial framework where legal systems were themselves based on the spatial and political structures of the nation-state. In a somewhat different temporal context, European thinkers like Jürgen Habermas proposed a solution through the concept of ‘international legal cosmopolitanism’, which advocated for the creation of a world judicial authority above the nation-states.Footnote 18 One might argue that this case and many others like it in Manchuria and other borderlands represent other attempts, haphazard though they were, to confront the same fundamental contradiction of legal modernity. Rather than resorting to the adjudicative powers of a unified higher authority, the farmers in this case did the opposite: they drew on resources from myriad origins beyond their cultural cocoon to deflect the demands of the great states. One might say that they were also legal cosmopolitans in the sense the philosopher Debra Satz defined the term: ‘neither nationality nor state boundaries, as such, have moral standing with respect to questions of justice’.Footnote 19 But theirs was different from the international legal cosmopolitanism of Habermas, or the ‘subaltern cosmopolitan legality’ the legal scholars Boaventura de Sousa Santos and César Rodríguez-Garavito proposed for the study of the contemporary Global South.Footnote 20 I discuss these theoretical implications in the conclusion.
In the next sections, I perform a close reading of the farmers’ legal manoeuvres under the Japanese empire and then with/against the Chinese warlord regime under Zhang Zuolin. Of note, I describe the protagonists as ‘Chinese’, ‘Korean’, and ‘Japanese’ merely to indicate their primary languages; these markers do not indicate their submission to any particular political system in the region. Disaggregating language, loyalty, and law will help disentangle the complex storyline.
The case: A tale of two islands and a quagmire of many laws
The Tongdetang islands sat in the middle of the Yalu River, which separated the Qing empire from Joseon/Korea.Footnote 21 Their swampy terrains made the islets a perfect site for growing reeds, a wetland plant used widely in paper making and other industries. A group of Chinese-speaking farmers, possibly of Han ethnicity, joined forces to invest in the islets in the last decades of the nineteenth century.Footnote 22 But the enterprise brought them both profit and trouble. Korean farmers also claimed rights over the islands, and challenged the Chinese investors using both law and force.Footnote 23 The Japanese empire muddied the water even more when it took over the Korean Peninsula in 1905. The empire had little use for reeds, but Japanese officials saw in the dispute an opportunity to annex the strategically situated islets and bolster Japan’s position in the geopolitical contest over the Yalu border.Footnote 24 Qing officials confronted these Japanese/Korean actors, but not always as advocates for the Chinese investors.Footnote 25 The officials appeared to have framed this as an issue of imperial sovereignty, not a problem of private rights for imperial subjects.Footnote 26 At one point, said Qing officials confiscated the land deeds of the investors to assert the Qing state’s power vis-à-vis both the Chinese investors and the Japanese empire.Footnote 27
Korean farmers’ claims over the islands had been about private land rights.Footnote 28 But at the turn of the century, a discourse about territory started to reframe the grievances. On another island, part of the same group at the mouth of the Yalu, a certain Korean farmer Chang Kyŏngyŏm petitioned for the Korean prefect of Ryongchŏn to defend the ‘territory (Ko: kangt’o)’ from Chinese harvesters, for ‘the boundary (Ko: kyŏnggye) between us and them should be like a chasm’.Footnote 29 The prefect wrote approvingly of the sentiment just before the Japanese takeover of Korea. Japanese officials would later appropriate this and other exchanges as part of the Japanese pretext for ‘establish(ing) Korean territorial sovereignty’ (meaning colonial Japanese sovereignty) over the island group, the Tongdetang islands included.Footnote 30 After the Japanese takeover in 1905, the pro-Japanese Korean grassroots organization Iljinhoe collaborated with Japanese officials and quasi-official proxies to establish de facto Korean occupation of the Tongdetang islands.Footnote 31 In the Japanese consul Okabe’s words, both parties took this as ‘an issue of the state’ and worked to ‘aid (Japanese imperial) diplomacy’.Footnote 32
The trilateral diplomatic manoeuvres over territorial sovereignty accomplished little beyond the creation of a massive paper trail for the case. A rare blessing to future historians, it spelled trouble for the Chinese farmers. They needed a strategy to protect their property rights at the epicentre of a brewing inter-imperial firestorm. Thankfully, nature stood on their side. Created just a few decades prior by river sedimentation, the islands straddled the centreline of the border river, making their sovereignty status impossible to determine on the map. The marshy lands were too inhospitable for permanent military installations, and the manifold river system too porous for the empires to police: neither empire could solve the problem by military force.Footnote 33 Unruly nature disrupted the nature of sovereignty at every turn.Footnote 34
The stage was thus set for a transnational legal drama that would span more than two decades. The case developed in two phases. The first phase took place around 1907 and 1909. At that time, the Chinese farmers made a semi-secret deal with Japanese colonial officials and the local Korean government to retain the farmers’ private rights over the islands. The second phase happened between 1916 and 1925. In this decade, a new Chinese regional regime—led by Zhang Zuolin—attempted to void the deal and assert the regime’s control over the reedy enterprise. The Chinese farmers thwarted the warlord regime’s initiatives in Chinese and Korean/Japanese courts of law.
Case stage I: Farmers trapping empires with a contract, 1907–1909
The legal drama started with the Chinese farmers concluding a contract with agents of the Japanese empire through an unlikely route. With Qing and Japanese officials pushing their claims at the expense of the farmers’ interests, the farmers’ situation felt precarious. Sometime between 1907 and 1909, they decided to bypass the Chinese and Japanese authorities and look for another recourse. Interestingly, they chose the Americans.Footnote 35 The American consul in Andong, Charles Arnell, was an active participant on the local legal scene.Footnote 36 Proficient in both Chinese and Japanese, he sometimes intervened in Sino-Japanese land disputes when local inhabitants came asking for the justice of ‘international law’.Footnote 37 We do not know if the farmers in our case used that same discourse about international law, but they reached out to the consul for mediation. By the Chinese farmers’ account, the consul produced favourable results: ‘[we] signed a ten-year contract for protection with the Japanese … after the American consul mediated between us [Ch: 經美國領事通融辦理…與日人定立保護字據十年]’.Footnote 38
This new discovery of the Chinese farmers’ initiative and American involvement challenges the existing historical interpretation of the incident, which generally considers this ten-year contract a Japanese colonial imposition or an act of the states.Footnote 39 In fact, the contract was very much of the Chinese farmers’ making. An analysis of the Japanese documents and the text of the contract also points in this direction. Miho Gorō, the Japanese official who closed the deal, reported that his plan involved having someone ‘speak with all 36 stake-holders and listen intently to their arguments’ [Ja: 能く三十六户の株主を周説し其理論に傾聴して...].Footnote 40 The plan was largely successful, although the contract had to be revised multiple times because the Chinese farmers refused to compromise on certain key points. The final language, which Miho presented to his Japanese superiors for review, represented the ‘establishment of mutual consensus’ [Ja: 双方の合意成立].Footnote 41
The linguistic and formatting choices in the contract also indicate that the Chinese farmers were deeply involved in its creation. All three versions of the contract Miho attached to his Japanese report were in Chinese only. There was no Japanese or Korean text except for a summary that Miho provided in the report. The formatting and framing of the contract were similar to private Chinese contracts for land transfers: the text was not a list of rights and obligations, but rather a historical narrative about the deal and its origins, interlaced with set Chinese phrases for private contracts.Footnote 42 These features are all consistent with how the Chinese farmers presented the events: the farmers were active participants shaping—and possibly authoring—the contract.
Despite the conventional framing, the substance of the contract was extraordinary. The text was a hodgepodge of legal elements of curious provenance, which showcases the kinds of double-layered legal pluralism that went into its making:
立字據。同德塘三十六戶前在安東縣安民山下甜水溝子淤泥灘一處, 經三十六戶貧民人等栽種葦草度命, 著頭牌王仁純經理。 昨于光緒三十二年十二月間, 有高麗人等將葦認為己有爭割, 三十六戶一束葦草未得, 苦情之極。為此叩懇大日本領事大人大德, 救三十六戶之性命。幸蒙玉成, 将葦草仍歸三十六戶, 按年收割, 以度養命, 救數十人之生活。為此, 三十六戶願將葦根後來讓為高麗產業, 每年捐稅照舊章程交納高麗政府查收。十年後, 高麗政府如用地皮之時, 需用若干, 任憑用去無違。立字之後, 倘有兩國爭奪葦草, 由日清官長管理究辦。恐口無憑, 立此字據為證。Footnote 43
[We] hereby sign the following written pledge: the 36 stakeholders of the Tongdetang corporation [developed] a patch of muddy wetland in the Tianshui valley under Mount Anmin in Andong County. The 36 ‘households’ of poor people planted reeds there to sustain their livelihood, and assigned baojia headman Wang Renchun to manage it. However, in the 12th month of the 32nd year of Guangxu reign, some Koreans claimed the reeds as theirs and unjustly harvested it. The 36 stakeholders received nothing, and were devastated. For this reason, the 36 households begged the honourable Japanese consul to save [our] livelihood with his benevolence. Fortunately, this was done. [The two parties have agreed that] the 36 stakeholders shall continue to own the reed produce and shall harvest it every year to sustain [our] livelihood. For this, the 36 stakeholders voluntarily yield the root of the reed to the Koreans as Korean property. [The thirty six stakeholders] will continue to pay fees and taxes following old regulations to the Korean government. After ten years, if the Korean government wishes to use the skin of the land, we [the thirty six households] shall permit such use without fail. After we sign the contract, if there continue to be disputes between the two states over reed ownership, Qing and Japanese officials shall manage and resolve [those disputes]. We hereby sign this written pledge as evidence [of the agreement], for fear that the spoken word cannot be relied upon.Footnote 44
The text was, in effect, about an international struggle over contested territory. Yet it used vernacular concepts in private law such as ‘root’ and ‘skin’ to describe the rights structure that would take shape over that territory. These concepts had no place in public international law, but were crucial in the private land market of the Qing. Historians have established that the private land regime in the Qing featured dual ownership, in which the ownership and usufruct rights of the same land could belong severally to two or more rights holders.Footnote 45 The holder of usufruct rights was said to own the ‘skin’ or ‘face’ of the land, whereas the other landowner held the ‘root’ or ‘bone’ of the land. Each right was a commodity of its own and could be transferred independent of the other. In cases where farmer A took out a state licence to reclaim land but was subsequently unable to do so, farmer B could take over through a private contract and develop the land. In such cases, farmer B would establish usufruct rights over the land, while farmer A would retain ownership over the ‘root’ of the land. Farmer B would pay taxes and fees to farmer A, so that farmer A could forward them to the state.Footnote 46 This dual rights structure was particularly prominent in frontier regions like Manchuria, where wasteland reclamation incentivized the practice.Footnote 47
This disaggregation of land rights was not unique to Manchuria, but it is important for our discussion because in Qing Manchuria, the dual rights structure helped migrants manoeuvre around the state-imposed boundaries between legal/status groups. Most lands in Manchuria were held by the Qing royal household, aristocrats, or members of the banners, an institution supporting the Qing conquest elite. Among the banner lands, some were designated as private property for bannermen, while others were assigned for bannermen to use or lease.Footnote 48 Qing regulations prohibited Han Chinese commoner migrants from buying these lands. In order to circumscribe these restrictions, Han Chinese migrants sometimes used private contracting strategies to acquire extensive usufruct rights from banner land holders without formally obtaining the title to the land.Footnote 49 In some other cases, Han Chinese migrants who reclaimed wasteland without state permission ‘identified’ a banner person as the nominal holder of the land, and paid for that person to perform functions as the nominal landowner before the Qing state, as if the illegally reclaimed land was legal banner land.Footnote 50 In both scenarios, the Han Chinese migrants in fact acquired or retained most real rights in the land.Footnote 51 In other words, it was customary practice for de facto landowners to create dual rights structures to evade state legal restrictions on land rights based on status and identity. There appears to have been broad judicial support for these practices: after the fall of the Qing, the Republican-era Supreme Court granted state legal protection to these customary inter-status rights structures.Footnote 52
The Chinese farmers on the Yalu islands used the same vernacular legal terminologies to describe a strikingly similar arrangement for a border-crossing rights structure.Footnote 53 By rough analogy, like the Han Chinese migrants above, the Chinese farmers retained their usufruct rights, or what they called rights over the ‘skin of the land 地皮’ on the islands. They gave up the ‘root’ of the property to an intermediary (the local Korean government) in exchange for some measure of (Japanese) state protection over their rights. In this rights structure, the two contracting parties both held a portion of the real rights in the property, with the Chinese farmers keeping the most important right in the customary context. Aside from the terminology, the farmers’ own words also confirm that this was how they understood the agreement. In their statements, the farmers distinguished this contract from a regular lease.Footnote 54 This is important because in a lease, the lessee had no property right in the land. In the present arrangement, by contrast, the farmers continued to effectively own the islands. The farmers’ somewhat opaque description of the payments to the Korean intermediary also points to the same conclusion. In the contract, they said they would pay levies through the Korean authorities following ‘old regulations’. However, no prior regulation existed at all for Chinese farmers to pay levies to the local Korean government. The payment the farmers promised to make in the contract was new. By ‘old regulations’, then, the farmers were most likely referring to existing customs generally applicable to the kind of transactions they believed this deal was comparable to. What were these transactions? In their subsequent statements, the farmers offered a clue by calling these payments a ‘fee for protection 保護費’.Footnote 55 The term is reminiscent of the arrangements I described above, in which Han Chinese wasteland developers paid banner people to act as their ‘landlords 東’ to secure protection from the local authorities for their lands. Taken together, this shows that the Chinese farmers used the contract to reframe the politically charged territorial dispute as a private land transaction, most likely along the lines of the vernacular contracting practices in the local private land market.
This was an early form of a borderland legal strategy that would be more commonplace in the transnational land market of Manchuria in the next two decades. In other cases in the Yalu region in the early Republican period (1911–1931), Chinese landowners used customary arrangements such as conditional sale or long-term leases to circumvent new nationality-based legal restrictions and transfer usufruct rights over private lands to Korean migrants. In some of these cases, as in this island dispute, Chinese officials acquiesced in the use of these vernacular legal practices.Footnote 56 Republican-era regional land regulations required the officials to nullify such contracts altogether. In practice, however, officials often accepted the divided rights structure and then sought to prevent these rights structures from transitioning into full land ownership by foreign buyers. Existing scholarship on the politics of land in Manchuria has discussed the Chinese/Zhang Zuolin state’s strategies to impose stringent nationality-based restrictions on the land market.Footnote 57 These cases above, however, show that those restrictions did not translate into reality in the fluid market of laws.
These practices also had larger implications for legal colonialism. In the 1910s, Japanese legal scholars would learn of the boundary-crossing custom between Manchu and Han landowners in the Qing and ponder over the possibility of appropriating that custom to facilitate the acquisition of private lands in Manchuria for Japanese and Korean merchants. The lawyer and journalist Takahashi Nobuo, for example, proposed sometime after 1916 that Japanese merchants could obtain usufruct rights from Chinese landowners in the same way that Han Chinese migrants obtained those rights from Manchu owners.Footnote 58 Intriguingly, however, in the Yalu island contract of 1907, it was the Chinese farmers who secured usufruct rights through the same custom. That is, the Chinese farmers reversed the appropriation process and used the indigenous custom to retain land rights and resist Japanese colonization.
In addition to the dual rights structure above, the island contract of 1907 had one other mechanism of resistance built into its text. Most likely thanks to the Chinese farmers’ tweaking, the language of the contract disrupted the Japanese plan to take over the islands fully at the end of the contractual period. To some Japanese officials, the document left open the possibility for the local Korean/Japanese authorities to establish full ownership over the islands in ten years: the contract already granted the local Korean government the ‘root’ of the reeds/lands. If, in ten years, the Korean government were to also take over the ‘skin’, then that would constitute full Korean/Japanese ownership of the lands. However, the contract they signed actually said something different. The document merely stated that the Chinese farmers would permit the Korean authorities to ‘use 用’ the ‘skin of the land 地皮’ at the end of the decade. This turn of phrase created significant ambiguity over what was to happen then. The difference between ‘using’ and ‘owning’ the skin of the land was not trivial in the Chinese legal vernacular. A person who had a right to ‘use 用’ a plot of land did not necessarily have the right to transfer that use right. By contrast, a person who owned the ‘skin 地皮’ of the land could transfer (or lease or pledge) the ‘skin’ independent of the ‘root’.Footnote 59 That is, in a normative sense, a mere right to ‘use’ a plot of land, even if combined with ownership of the ‘root’ of the same land, did not constitute full ownership of the land.Footnote 60 One would need to own both skin and root to fully own a piece of land. But since the wording said the Chinese farmers would ‘permit’ the other contractual party to use the skin of the land in a decade, it implied that, in a decade, the Chinese farmers would remain owners of the skin of the land. In other words, by inserting the verb ‘use 用’ before the object of the right under discussion, the Chinese farmers limited the ability of the other contractual party to use the terms of the contract to grab the land completely in a decade. By implication, the Chinese farmers also deflected the consequential question of the island’s sovereign status: they were not making a written promise for the islands to fully become Japanese state property. That full Japanese possession could have been a precondition for Japan to claim territorial acquisition by effective occupation over the islands.Footnote 61 Indeed, this was how the second phase of the legal marathon started, to which we will now turn.
Case stage II: Farmers and warlords going to court, 1916–1925
So it was all good—until it was not. By the time the contract was up for renewal in 1916, the Qing empire had fallen. Manchuria was governed by an assertive Chinese warlord regime under Zhang Zuolin, who espoused a particular vision of territorial nationalism. That is, the regime tied private landownership to the concept of ‘national territory (Ch: 國土)’ and used the defence of that territory as a discursive justification for its programmes of land control.Footnote 62 The Zhang regime’s invocation of this nationalism was often instrumental, but consequential. On the Yalu issue, the new regime wanted to nullify the farmers’ contract with the Japanese and Koreans and take over the islands for the Chinese/Zhang state. Things started to go south for the farmers, but they would find another recourse: the courts. The Qing had started to set up new legal institutions in Manchuria in 1907 using Japanese courts as the model. By the early Republic, there had also been a shift in judicial personnel and the judicial ethos. Whereas magistrates doubled as judges in late imperial China, the new judges and prosecutors of the Republic were generally professionals with at least three years of formal legal education.Footnote 63 Many of them received this education in Japan or at Chinese law schools under Japanese jurisprudential influence. For example, Dan Yusheng, the chief judge of the Fengtian provincial high court at the time of the case, was a law graduate of Meiji University in Tokyo.Footnote 64
As our case will show, the new judges and the Zhang regime had different priorities. Whereas Zhang prioritized mechanisms of political control, the judges valued the prevailing principles of law in Northeast Asia at the time. On civil matters, these included respecting the autonomy of contractual parties and recognizing local customs as a source of civil law. On criminal matters, the judges prioritized procedural justice. That is, following due process as outlined in the rules of procedures. None of these principles was designed to serve Zhang’s version of territorial nationalism. All would prove important to the farmers’ manoeuvres. The legal institutions also enjoyed some measure of independence from the regional political regimes. Although China was disintegrating politically at the time, judicial personnel reported to the Supreme Court in Beijing/Nanjing, not regional regimes like those of Zhang Zuolin.Footnote 65 This structure gave the judges substantial autonomy in Manchuria. The outcome of legal processes at the new judicial venues was often contingent upon technicalities and legal interpretation and thus highly unpredictable. When the farmers took the matter to a new-style court, they moved their dispute into a network of national/transnational judicial power. And that was how they survived the second phase of the saga.
As the farmers’ word play had foretold, the Korean government, now under full Japanese colonization, did not take action to ‘use’ the ‘skin of the land’ at the end of the ten-year period. It was left to the Chinese stakeholders to decide what to do with the contract. But this time, the Chinese farmers could not agree among themselves. Two factions formed, with farmer Sun Jingxian and farmer Ma Weifu as their respective leaders. Farmer Ma’s faction made secret arrangements to transfer their real rights over the islands to private Korean financiers, apparently in exchange for a cash loan or payment.Footnote 66 Farmer Sun’s faction moved to renew the contract for another decade with Japanese officials (in order to continue harvesting reeds under Japanese protection under the same arrangement as before).Footnote 67
The split happened in the year 1916. The Zhang Zuolin regime had just promulgated new regional regulations to prohibit the transfer of real rights in private property to non-Chinese buyers.Footnote 68 Zhang Zuolin believed, not without good reason, that the transfer of large tracts of private lands to Japanese buyers would ultimately lead to the loss of Chinese territorial sovereignty in the contested borderland.Footnote 69 Both of the farmers’ plans above involved such transfers. They both constituted a criminal offence under Zhang Zuolin’s penal regime: illicitly selling national territory (Ch: 盜賣國土).
The Ma faction was undeterred. In fact, farmer Ma saw these new regional regulations as another legal resource to mobilize: they could be used to push farmer Sun out of the picture. Ma’s ploy was not complex. Having concealed their own plan to monetize the islands, Ma and his followers filed lawsuits in Chinese courts alleging that Sun was treasonously giving up Chinese territory:
[孫敬賢]將保護字據盜去, 倚作把握, 竊赴日領署呈請, 將該塘保護變租, 以圖吞霸…無非將國家領土斷送外人。日人得此大禮, 將不知若何酬謝孫氏。Footnote 70
[Sun Jingxian] stole the contract of protection, and used it as leverage to petition for the Japanese consulate to turn the protective [contract] into a lease for the wetlands. [Sun’s] aim was to take over [the wetlands] for himself … This is no different than surrendering national territory to foreigners. [We] do not even wish to speculate how much the Japanese would thank Mr. Sun for such a hefty gift!
The 1907 deal was already illegal under Zhang Zuolin’s land laws, but to frame Sun, Ma took it one step further: he alleged that Sun was sabotaging the 1907 deal and selling the lands outright to the Japanese. We know that this was a ploy rather than a genuine display of patriotic concerns because Ma had also filed lawsuits at a Korean court making opposite claims (also to attack Sun).Footnote 71 Zhang Zuolin’s underlings learnt of Ma’s allegations at the Chinese court, and ordered the local prosecutors to punish Sun Jingxian for surrendering Chinese lands to Japanese overlords.Footnote 72 That is, the Zhang regime reframed the case from a private contractual dispute into a criminal incident about China’s (or the Zhang regime’s) territorial sovereignty.
At this critical juncture, however, the judiciary deviated from the demands of the warlord governor. Rather than defending ‘national territory’ against alleged foreign aggression, the Chinese prosecutors reached out to their Japanese counterparts in Pyongyang, requesting their collaboration in the investigation into Ma’s claims.Footnote 73 Apparently at a Korean site, they studied the facts and technicality of the case, focusing on notarization and contracting practices. At times they consulted the Meiji Japanese Civil Code.Footnote 74 The prosecutors then reached the conclusion that, although Sun had indeed jeopardized China’s sovereignty claims over the islands in his dealings, he was to be indicted for the lesser economic crimes of embezzlement and forging private documents only. That is, the prosecutors were indicting Sun for spending too much of the corporate funds in his efforts to renew the contract, rather than for the act of making or renewing the contract. The prosecutors did not apply the Zhang regime’s nationality-based land regulations prohibiting the ‘illicit selling of national territory’, which would have subjected Sun to harsher punishment. In their report to Zhang, the prosecutors remarked perfunctorily on the sanctity of territory and on Sun’s folly, but in their substantial conclusion, they said that issues of sovereignty fell ‘beyond the purview of a court of law 非法廳權力所能及’.Footnote 75 In other words, the prosecutors distanced themselves from Zhang’s demands. On this, they had the support of the Chinese Supreme Court.Footnote 76 In a judicial interpretation for a similar case, the Supreme Court advised that there was no positive legal basis (no code in existing law) for the criminal charges the Zhang regime’s land regulations prescribed for private land transfers to foreigners.
The judges in Andong and Fengtian made similar determinations.Footnote 77 They handled the case largely as a dispute between two private parties and ignored the invocation of Zhang’s territorial nationalism as well as the demand for justice against Sun’s alleged treason. At the criminal trial, the Fengtian Provincial High Court sentenced farmer Sun to a brief term in prison for private embezzlement, before releasing him on a pardon. Ma then filed a concurrent civil lawsuit against Sun, claiming a large amount of damages for Sun’s alleged treasonous acts (selling Chinese land to foreigners). In this civil lawsuit, Ma acted as the representative of several other stakeholders. The judges did not accept Ma’s arguments about Sun’s treason. They ruled in favour of the other stakeholders and ordered Sun to pay them a much smaller amount for his private embezzlement and forgery only. Ma’s insinuation of Sun’s treason did not gain Ma any advantage in the civil suit.
One move by a civil court judge is a telling example of the judicial ethos. After Sun was convicted for embezzlement and forgery of private documents at the criminal court, farmer Ma, acting in his capacity as the plaintiff in the ensuing civil suit for damages, requested that Sun’s property be seized as a guarantee for future compensation in the civil suit. Judge Mao Cheng in Andong denied the motion through a complex manoeuvre.Footnote 78 The Provisional Regulations for Criminal Procedures in effect at the time provided that the facts and culpability established in a criminal trial were legally binding for subsequent civil trial(s) arising from the same injury.Footnote 79 Sun had already been convicted in the criminal trial. It stood to reason, then, that Ma’s civil claims were likely to succeed, which would be cause for the judge to find in Ma’s favour on the seizure request. Ma’s nationalist discourse about territory also created pressure. However, the judge cited a different provision in the Regulations for Civil Procedures, which granted him discretion to impose conditions on the plaintiff for such seizures.Footnote 80 On that basis, he ruled that the court would seize Sun’s property for Ma only if Ma put up collateral to protect Sun from any financial loss resulting from said seizure. This allowed the judge to stay in compliance with the rules of criminal procedures but still effectively block Ma’s demand. We do not know whether Judge Mao knew the backstory before making the decision, but his interpretation of this second provision favoured procedural justice and equity protection for the defendant. What we do know is that Mao did not make the choice out of pro-Japanese sentiments. He would leave Manchuria after the Japanese takeover and serve in a series of key judicial posts under the Chinese Nationalist state.Footnote 81
This was not a lone example. Other cases from the archives of Northeast China show similar judicial dynamics. Outcomes of legal processes were unpredictable for both parties and were not predetermined by the political will of any state.Footnote 82 Legal interpretation played a key role in adjudication. In a dispute between a Japanese firm and a group of Chinese borrowers in Huaide county, for example, the Chinese judges at the Liaoning Provincial High Court interpreted a politically charged dispute about the hypothec of land as a technical issue about contracts and ruled in favour of the Japanese plaintiffs.Footnote 83 In another debt dispute between the same Japanese firm and a different group of Chinese borrowers, however, the Chinese borrowers felt that the law was on their side and thus pushed the Japanese firm to initiate a lawsuit at the same court to resolve the dispute (the Japanese firm stalled and wanted to settle). Elsewhere, a panel of appellate judges ruled in favour of local farmers in Tonghua in their timber dispute with the son of a powerful Chinese general, Dong Futing, under the Zhang regime.Footnote 84 These and many other examples show that the judicial institutions of Manchuria were effective venues of dispute resolution and an overlooked space of bottom-up social action.
The Zhang Zuolin regime was displeased with these judicial outcomes.Footnote 85 So, too, was the Japanese colonial state. Japanese officials feared that these legal troubles at Chinese courts could jeopardize the Japanese plan to take over the islands. And the imperial anxieties proved true.Footnote 86 When farmer Sun walked out of jail, the wetlands were still in the Chinese farmers’ hands.Footnote 87
Conclusion: Grassroots legal cosmopolitanism
Thirty six Chinese farmers with no particular political ideology turned two tiny islets into the site of some of the most dramatic politics of law in the Northeast Asian borderland. The case started as a diplomatic dispute over territorial sovereignty between three states. But as the local legal archives revealed, the farmers and legal professionals orchestrated a significant part of the show. Leveraging their literacy in the legal cultures all around them, the farmers reframed the international dispute into an issue about private land rights using the legal vernacular of the borderland. Their uses of law turned them into agents of history at a pivotal moment of empire-building in Northeast Asia. These legal strategies, I venture to suggest, represented a form of grassroots legal cosmopolitanism in a pluralistic borderland setting. Recognizing the cosmopolitan quality of the farmers’ legal engagements offers us an opportunity to expand the discussion about cosmopolitanism and transnational legal history in the Eurasian world.
I use the term ‘legal cosmopolitanism’ broadly to describe legal strategies or legal thinking outside the framework of the nation-state. Such legal practices constituted responses, conscious or unconscious, to a key question in global legal modernity: how can systems of justice, which were set up within a global framework of nation-states, protect individual rights against the encroachment of said nation-states? This question is not just about Europe, even though European thinkers were among the first to formulate an answer. In the positivist jurisprudence of nineteenth-century Europe, the sovereign nation-state was the primary vessel and purpose of lawmaking.Footnote 88 Various strands of cosmopolitan legal thinking emerged as counter-currents to this state-centric/nationalist legal formula. These forms of cosmopolitan thinking often aimed to contain state nationalism and to protect individual rights at a transnational and supranational level. The legal historian Martti Koskenniemi has shown how modern European international law started as a cosmopolitan intellectual enterprise pitting a ‘global public conscience’ against the excesses of European nationalism in the Victorian era.Footnote 89 Twentieth-century jurists expanded these Victorian liberal sensibilities into a movement for international legal cosmopolitanism.Footnote 90 Traditional international law only regulates the relations between states and tolerates substantial differences between national legal systems with regard to their ability to protect individual rights. International legal cosmopolitans, by contrast, envision a global regime of cosmopolitan law, which ‘confers on all persons the entitlement to challenge, by virtue of their shared humanity, the decisions of public officials regarding their rights’ in transnational institutional settings.Footnote 91 The aim of the cosmopolitan legal regime, as Jürgen Habermas put it, was to change the ‘state-centered tradition of modern political thought’ and offer equal protection for the human rights of all individuals, regardless of their nationality.Footnote 92
The Manchurian farmers arguably stumbled upon a different solution to the same conundrum. The European answer to that question is universalistic. That is, it is concerned with the creation of worldwide legal institutions with final authority above the states.Footnote 93 The farmers of Tongdetang were strangers to such theories, or the universalist thinking behind them. When confronted with the territorial demands of two nation-states/empires, these Han Chinese farmers found recourse by turning to non-Chinese/non-Han legal traditions in the doubly pluralistic legal order of a transnational borderland. Their use of resources from multiple legal regimes was syncretic, and sometimes bordered on pragmatism. In that process, however, their cosmopolitan legal outlook allowed them to come up with proposals which advanced their individual rights claims before multiple great states. Boaventura de Sousa Santos and César Rodríguez-Garavito proposed to analyse the transnational legal movements from below against hegemonic globalization in the contemporary Global South through the lens of subaltern cosmopolitanism.Footnote 94 The farmers of Manchuria did not run a social movement. Nor did they look for transnational solidarity. Rather, they shared the same script of legal audacity and epistemological openness with others who each confronted the hegemonic actors of the borderland in their own individual fight. The aggregate of those confrontations, however, shows the many ways of being cosmopolitan in a not-so-cosmopolitan world.
Acknowledgements
I would like to thank the editors of Modern Asian Studies and those involved in the review process for their invaluable comments on drafts of the article. I would also like to thank Professor James C. Scott, whose work and mentorship have been foundational to my research and to this article. His recent passing is a profound loss.
Competing interests
The author declares none.
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