Chen, Chinese Law in Imperial Eyes - Sovereignty, Justice and Transcultural Politics, 2015

Li Chen.  Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics.  New York  Columbia University Press, 2015. 416 pp.  $60.00 (cloth), ISBN 978-0-231-17374-2.

Reviewed by Dorothea Hoffman 

From Enlightened to Barbarian: Changing British Views of Chinese Law

This extensively researched and well written book could as easily be reviewed for H-Asia as for H-Empire. Its introduction sets the tone by looking at the recent historiography on Chinese law and Sino-Western relations, and defines key legal issues for the imperial gaze in the limited contact zone of the Canton System in the late eighteenth and early nineteenth centuries. Five content chapters focus on the shift in Britain's legal-cultural perceptions of Qing China in light of both the changes within Great Britain and the growing importance of China in the economics of its empire, as tensions mount to a showdown over the opium trade. Chen documents this process, showing how British views of Chinese law and its administration evolve from seeing them as not too different from Western practices to considering them the punitive acts of "Oriental despots."

Chapter 1 delves into the sources, both Chinese (mined here for the first time) and Western, around the case of the killing of two Chinese men in 1784 when a parting gun salute was fired from the British ship the Lady Hughes. This case was repeatedly used by British officials to assert the need for extraterritoriality in China. Extraterritoriality claims rose along with Britain's global imperial reach. Chen gives a "narrative" of the case from both sides. 

At the core, the issue was whether the deaths amounted to accidental homicide. Both Chinese and British law had provisions to deal with the matter but since it involved Chinese nationals in a Chinese port, China insisted on investigating the deaths. At stake for both sides was disruption of the lucrative trade. A collective of foreign traders failed to prevent the gunner (or some substitute?) being turned over to local authorities for trial. Five weeks later, after the usual appeals all the way to the Chinese emperor in capital cases, he was executed by strangulation; foreigners felt betrayed. 

They failed to comprehend that, under Chinese law, the defense of accidental death only applied if it occurred during a legal act. The Chinese prohibition against gun salutes, long in place, had been ignored by foreigners. Chen speculates that, at a time when British embassies to the Qing court were being turned away, the execution was another way to demonstrate Chinese imperial authority over foreigners while also reprimanding lax local administrators. But this case began a new perception of Chinese law as bloodthirsty, punitive, and barbaric, a view Chen that reminds us prevails even today in Western literature and which was even taken up by Chinese themselves in the late nineteenth century, as reformers critiqued their own culture in efforts to modernize.

Chen devotes chapter 2 to the 1810 translation and impact of what purported to be the Qing Code (Ta Tsing Leu Lee or TTLL) by George Thomas Staunton, who arrived in Guangzhou in 1800 to work as a clerk in the British Factory. Teaching Chinese to foreigners had been officially illegal since 1760; knowledge of Chinese among foreigners was limited and trust of Chinese interpreters after the Lady Hughes dispute evaporated. Staunton seems to have been motivated by similar incidents to examine the text of the Qing Code.  The TTLL was quickly retranslated into other European languages. Chen, drawing on French literary theory, gives attention to an important feature of many translation projects by focusing on the "paratexts," that is, additional materials such as the preface, table of contents, the text of the translation, and appendix of miscellaneous and translation notes. These paratexts provide a zone of control that mediates the reader's experience of the text (p. 88). In this case, Staunton admitted rearranging the TTLL to conform to British visual sensibilities, but did not admit to omissions of tables and commentary on cases, the scale of punishments, degrees of familial relationships, monetary redemption, and instruments for interrogation.The resulting document, stripped of its cultural context, was a partial representation of the Qing Code and identified only as the Penal Code. Privileging one's own take on Chinese culture as Oriental despotism made for highly critical and enduring commentary on Chinese law in publications such as the Monthly Review and Critical Review. In the empire-building context of Britain, some reviewers used this translation to support the growing assessment of a stagnated if not fully devolutionary China, an assessment that lingered in the Western vision of China until today.

Chen argues that Staunton's translation provided a representation of Chinese law and society at a time when British calls for free trade grew louder and so did demands for extraterritoriality. With the TTLL in hand, this seemed more justified in Western eyes.

In chapter 3, Chen steps back to examine the impact Chinese law had on legal modernity in Europe, especially Britain. While Chen is correct that this is an understudied area given the negative view of China in the nineteenth and twentieth centuries, it has become of more interest to scholars recently. The British Raj used much of the Qing Code as a model for writing the Indian Penal Code in 1830, but before that, several eighteenth-century Enlightenment thinkers were attracted to features of China's government bureaucratic structures regarding how best to administer the rules of monarchy. Legal appellate practice was of special note. The big shift for European legal scholars and government officials between the mid-eighteenth and the mid-nineteenth centuries was in their perception of of China's legal structure, which they viewed first as rational, if culturally different, but later characterized as irrational and barbaric, depicting Chinese, indeed all non-Europeans, as having little respect for human life and less for property. Ironically, Chen does not draw attention to the Atlantic slave trade of the same period. It seems an obvious issue to raise, but perhaps one so deep and serious that it would detract from the main thrust of this book. 

Chen does note that major jurists such as William Blackstone were criticizing severe British punishments, rampant perjuries, and arbitrary judicial powers (p. 140). As legal reforms got underway in Britain, new core concepts within the proposed criminal code included principles of proportionality and certainty of punishments that were explicitly attributed to the Chinese code and viewed as "modern."

This shifting position of Western powers is further analyzed in chapter 4 where Chen, looking at the global spectacle of imperialism, decodes the imperialist ploy of sympathy for the plight of the downtrodden. Depicting the Chinese as monsters who viewed strangulation as a lesser punishment than beheading helped Euro-Americans create the psychological foundation for a "sentimental imperialism" focused on the "modern subject" (p. 157). Chen avoids the traditional term "white man's burden," penetrating further into the notions of emotional communities that came to dominate the dialogue of imperial rule. Art and literature created by Chinese depicting the pains of "others" in the Chinese courts sold well to foreigners in Guangzhou and Macau. One such collection, The Punishments of China, was widely translated and repeatedly reprinted in Europe between 1804 and 1830 and can still be found in museums and library collections. Some plates from this volume are reproduced in this chapter and, while contemporary viewers saw them as representing the Chinese legal system in Staunton's TTLL, a more practiced eye would note the absence of blood or severed limbs that did not match the explicit Western text. It seems Chinese artists were attempting to provide foreigner buyers the cruel spectacle expected.

By the time of the First Opium War, the central topic of chapter 5, Chinese objections to this highly lucrative but socially damaging trade conducted by Euro-American powers with Chinese collaborators, were dismissed by foreigners. Prevailing foreign views of Chinese law and society provided no room for Chinese morality. After building this argument, Chen notes that when the Qing court used legal analogies to assert a moral high ground in its appeal to the British monarch to end the opium trade, these appeals had some sway in the British Parliament. But, when it came to the question of who was responsible for compensating foreigners for property, that is, the opium turned over to and destroyed by special commissioner Lin Zexu, there was no doubt. Merchants in the contact zone argued that if China, as a large power in Asia influential over other countries such as Japan, Vietnam, Korea, etc., were treated as an exception to imperial trade policy, it would delegitimize Western international law and imperialism worldwide (p. 209). American diplomat and jurist Henry Wheaton tried to racialize international law. He made it clear at the time that international law among Western Christian nations was one thing; what governed the dealings among (Muslim) nations of the East and between them and Christians was another. Commissioner Lin, Chen argues, presumed certain principles of justice, morality and humanity to be universal. Chen, however, does not go on to argue that the Qing letters to British rulers could easily be seen as attempt at a reverse sympathy, in the hope of shaming the foreigners and creating an emotional community in favor of ending the opium trade. The Times of London compared the opium trade to the slave trade that ended in 1807, but slavery was not abolished in most of the empire until the Slavery Abolition Act of 1833. But the legal rather than moral arguments prevailed. The opium was said to belong to British producers in India or to contracted ships' captains, not the British government. Sir Charles Elliot, British superintendent of trade in Canton, had required them to turn over the opium and he delivered it to Chinese authorities. But who would pay the opium owners?  The Crown or the Chinese? In this tangled context, contraband was transformed into legal property. Neither the British Crown nor Elliot had the money to pay for the seized property. He likely thought that the Chinese would eventually be forced to pay.

More costly was what was seen as the unprovoked suspension of the opium trade that was costing Britain around £1.5 million annually in British products that created thousands of jobs in manufacturing and shipping. British Indian opium sold to China was worth £48.3 million, a financial loss the British were not about to take.

Military actions replaced morals. The Treaty of Nanjing and later treaties in the later so-called Opium Wars did not mention the opium trade.

The aspiration of the author to restore the centrality of legal matters to Sino-Western interactions is clearly achieved. This book would appeal to those interested in international law and the modern legal transformation of both China and the West.