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Law & Humanities Workshop
June 1-2, 2003
Law’s Empire:
The Legal Construction of “America”
in the “District of China”
© Teemu Ruskola
SUMMARY
In 1906 the U.S. Congress passed “An Act Creating a United States Court for China and
prescribing the jurisdiction thereof.” The new court, equivalent to a federal district court,
assumed civil and criminal jurisdiction over American citizens within the “District of China”
which in turn was coincident with the Empire of China. Appeals from the court were taken to
the Ninth Judicial Circuit in San Francisco, with further appeals to the United States Supreme
Court in Washington, D.C. Expanding its original mandate, the court eventually construed its
jurisdiction to include not only American citizens in the District of China but also American
“subjects” from the Philippines and Guam, and in some cases American citizens who had never
even been to China.
The law applied by the court consisted of a mélange colonial common law as it existed
prior to American independence, general congressional acts, the municipal code of the District of
Columbia, and the code of the territory of Alaska (parts of which continued being applied in
China even after they were repealed in Alaska), to mention only the main sources of the court’s
jurisprudence. The court had only one judge, and when he was away (either riding circuit in the
cities of Hankow, Tientsin, or Canton, or being investigated for official misconduct in
Washington), prisoners sometimes had to wait for months for a trial. Indeed, virtually the only
federal law that did not apply in the District of China was the United States Constitution: there
was no right to a jury trial nor to constitutional due process, for example.
This may all sound rather like a chapter from Alice in Wonderland—the kind of
befuddled jurisprudence one might expect to emerge from the courtroom of the Queen of Hearts,
not from a court of the United States. Yet the above description is in fact a brief summary of the
jurisprudence of the American extraterritorial court in Shanghai, known simply and immodestly
as the “United States Court for China.” It operated for several decades, and was not abolished
until 1943.
Although the U.S. Court for China is among the most remarkable judicial institutions in
American legal and political history, it remains little known among legal scholars and China
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specialists alike, both in the United States as well as in China, and its jurisprudential and political
significance remain almost entirely unexplored.
In addition to its intrinsic historical
significance, the court’s functioning provides also a window into understanding the interaction
between Chinese law and other legal systems. In the end, the story of the U.S. Court for China is
part of the much larger, still on-going story of the introduction of Western international law into
China. The ultimate ground for the court’s stunning jurisdiction lay in the claim that China did
not qualify for full membership in the “Family of Nations,” or Euro-American international
society consisting of “civilized” states identified with their national legal systems.
I analyze the long and complex history of the introduction of Western international law
into China in greater detail elsewhere. However, since that history provides the larger context in
which the U.S. Court for China exercised its jurisdiction, I begin by making some historical and
conceptual observations of international law’s history in China, and then discuss the court’s
jurisprudence in some detail.
I. WESTERN INTERNATIONAL LAW VS. SINOCENTRIC WORLD ORDER:
TOWARD COMPARATIVE INTERNATIONAL LAW
As told by international lawyers, the basic outline of the history of international law in
China is as simple as it is short: There was no international law in China until its nineteenthcentury encounter with the West. However, this basic premise gratuitously privileges Western
international law, for China did in fact have a system of regulating relations with surrounding
political formations. In the Sinocentric system which prevailed in much of East Asia, an
elaborate system of tributary ritual governed the relations between the “Middle Kingdom” (the
Chinese term for China) and its neighboring states. Indeed, the Sinocentric worldview regarded
China as a universal empire that defined itself against uncivilized “barbarians” at its borders.
However, the borders did not constitute a point of absolute exteriority: barbarians who paid
(economic and symbolic) tribute could become Sinified and included in the universal Chinese
civilization. An elaborate system of tributary ritual regulated relations between the capital of the
empire and various political formations at the periphery, with the goal of absorbing even the
peripheral peoples into the Sinocentric world order.
This “inter-domainal ritual” can be usefully interpreted as a kind of international law. Just
as Western international law served to coordinate relations primarily among the Euro-American
“Family of Nations,” so China too had its own Family of Nations, as it were, with its own
constitutive norms for this regional regime. This recognition reframes the analysis of the
nineteenth-century Sino-Western legal encounter as a meeting between two different world
orders, each with its own legal classifications. I will call this mode of analysis “comparative
international law.”
The recognition of a Sinocentric system of international law has been impaired in large by
the historic assessment, inherited from nineteenth-century Western international lawyers, that the
Chinese worldview was primitive, parochial, and chauvinist. However, viewing the extension of
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Western extraterritorial privileges to China as the encounter between two world systems with
different legal and ritual cosmologies allows us to re-interpret Western (Euro-American)
international law as a competing, equally chauvinistic worldview. The Chinese view dealt with
cultural difference among peoples by insisting that it could be absorbed: the entire world could
be potentially Sinified. Ostensibly, nineteenth-century Western international law declared
cultural difference irrelevant: whatever their domestic differences, all sovereign states were
juridically equal. Yet, paradoxically, full sovereignty was an attribute only of members of the
Family of Nations, the core Western states with “civilized” legal orders. In the end, to make
themselves intelligible to nineteenth-century international law, political formations such as China
had to represent themselves in terms of Euro-American legal categories.
Viewed from this perspective, the extension of Western extraterritorial jurisdiction into
China is not simply another instance of the expansion of (universal) international law into a
vacuum, but the collision between two different political and symbolic economies: a Western
regime free of trade under international law, on the one hand, and a Sinocentric system of
tributary relations organized in a ritual hierarchy, on the other hand. Much of post-War area
studies scholarship views the nineteenth-century Sino-Western encounter as a tragic cultural
“misunderstanding” by the Chinese of the West, modernity, and law. The alternative perspective
of comparative international law recasts this encounter as a contest between two different
political and legal cosmologies over just what shape the “modern” world should take.
Indeed, insofar as claiming jurisdiction constitutes the foundational act of asserting the
right to legitimate control over territories and populations, the historical extension of Western
international law can be analyzed as a cultural and epistemological project seeking to turn the
entire globe in a juridical formation consisting of nation-states. In a crucial sense, Western
extraterritorial jurisdiction in China served to constitute China as a state in the international legal
system while at the same denying it admission into the international legal society into which it
was apparently being inducted.
Conceptualizing international law’s historic expansion as a problem of comparative
international law—the study of the dynamic interaction between different regional systems of
international regulation—raises a host of questions the answers to which can only be hinted at
here. Yet it is crucial to raise these questions before turning to the immediate subject of this
Article, the jurisdiction of the U.S. Court for China. The final significance of the court’s work
lies in an appreciation of its historical location at the intersection of two different legal and
political orders.
It seems difficult, if not impossible, to discuss the presence of an American court on
Chinese soil in a vocabulary other than that of colonialism. Yet China was, in fact, never
colonized by the United States or any other Western power, and the court’s presence was
justified by treaties to which China had given its formal consent. However, while the main
explanation for the court’s existence must be sought in an analysis that takes power into
consideration, the question ultimately demands a more detailed and more nuanced answer that
will consider, at a minimum, a range of different modes and kinds of colonization. That in turn
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first requires an analysis of the internal logic of the court’s functioning: How did the court
arrive at its jurisprudence, and how did it justify it? Analyzing that jurisprudence is the primary
focus of this article. Without such analysis, any answer to the larger political questions will
necessarily remain incomplete. In delineating the jurisprudence of the U.S. Court for China, this
Article draws on two volumes of case reports published by the court, entitled Extraterritorial
Cases—the most elaborate jurisprudence of extraterritoriality developed by any American
judicial institution—as well as on cases appealed to the Ninth Circuit, available in ordinary case
reporters. (No case from the U.S. Court for China was ever heard by the U.S. Supreme Court.)
In addition, this Article draws on a secondary literature from the 1910s and 1920s on American
extraterritorial jurisdiction in China, which provides some preliminary evaluations of the court’s
work. Finally, the Article draws also on primary research, conducted in the National Archives,
on the records of the U.S. State Department which exercised supervisory control over the court
during most of its existence.
II. WESTERN EXTRATERRITORIAL PRIVILEGES IN CHINA
China has constituted a mythic market in the Western imagination at least since Marco
Polo. Yet from the beginning, Western interest in China as a market was frustrated by official
Chinese diffidence. When George III sent his emissary Lord Macartney to China in 1793 to
negotiate a trade agreement, the Qianlong Emperor thanked him politely for the Western
curiosities presented to him as gifts and then declared, “[W]e have never valued ingenious
articles, nor do we have the slightest need of your Country’s manufactures.” Subsequently,
foreign trade with Westerners was restricted to the single port of Canton.
However, as Britain’s trade deficits with China grew over time, the Chinese soon learned
that free trade, as defined by the British, did not necessarily entail the freedom not to trade.
China’s refusal to accept “free trade” in opium led directly to the Opium War (1839-1842) and
the ensuing century of so-called “Unequal Treaties.” This treaty system, based on bilateral
agreements between China and Western states, had three cornerstones. First, it abolished the
restrictive trading system in Canton and opened a growing number of other Chinese cities—
known as Treaty Ports—for Western trade. Second, on the ground that Chinese law was too
“barbaric” to apply to Europeans, Western nations extracted the right of extraterritoriality: their
citizens were to be subject only to their own laws, even while on Chinese territory. Third, the
treaties contained a Most Favored Nation clause, so that any further privileges extracted by one
foreign power would accrue to all.
The United States was among the first of these so-called Treaty Powers in China. For
more than sixty years, the United States exercised its rights of extraterritoriality by following the
model of the European Treaty Powers: it vested its consular representatives in China with the
power to adjudicate legal disputes. The standard of justice under this system of so-called
consular courts was notoriously low. Most consular judges had no legal training at all, and one
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particularly notorious American consul in fact prided himself on not knowing “much law” but
being “hell on equity.”
As the anti-foreign Boxer Rebellion nearly toppled the imperial government of China at
the end of the century, there was an increasing threat that China would in fact be partitioned and
outright colonized by the Treaty Powers. The United States, which had remained politically
relatively uninvolved in China, came now to China’s defense by announcing, in 1899 and 1900,
an Open Door policy for China: all foreign powers were to have equal commercial access, while
at the same time they were to respect China’s territorial integrity. As a relative late-comer to the
scramble for China, the United States much preferred competition on the basis of commercial
equality over territorial conquest. Indeed, the openly stated rationale for the policy was: “We do
not need to seek an unfair advantage. An open door and no favor infallibly means for the United
States . . . the greater share and gain in the commercial exploitation of China.”
III. “PROGRESSIVE IMPERIALISM”:
THE CIVILIZING MISSIONS OF THE U.S. COURT FOR CHINA
The enactment of the Open Door policy resulted in greater trade and interaction between
China and the United States. In 1906 the Congress passed an act for the establishment of the
U.S. Court for China. The court was modeled, in many respects, on His Britannic Majesty’s
Supreme Court for China, created in 1904 and also located in Shanghai. Indeed, the American
and British courts in China—or “for China,” in the more generous formulation entailed in the
two courts’ official names—were the only two full-fledged foreign courts operating in China;
other Treaty Powers relied on consular courts.
As the high tide of international imperialism coincided with domestic Progressivism in
the United States, the motivations of the court’s advocates are best characterized as Progressive
imperialism. The imperial aspect was evident in that one of the court’s main tasks was to
provide a model of rule of law for the Chinese—a classic colonial mission civilisatrice. Quite
simply, “the common law of England” was viewed as the great responsibility of English and
American lawyers and nothing less than “the great heritage of their race.”
What made the court an (at least arguably) progressive institution was the fact that it had
also a second civilizing mission: in addition to civilizing the natives, it was charged with
civilizing Americans as well, by bringing law and order to the increasingly ill-behaved American
expatriate community. At least in the State Department’s view, there were growing numbers
law-breakers of various kinds among Americans in China. These “beachcombers” and other
American flotsam that floated onto the shores of Shanghai were giving the U.S. an increasingly
bad name and, significantly, provided endless ammunition for Chinese critics of American
extraterritorial jurisdiction. Given the damage they wrought on U.S. diplomatic prestige in
China, a central mission of the U.S. Court in China was to discipline the unruly elements of the
American population in China.
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IV. CONSTRUCTING “AMERICA” IN THE “DISTRICT OF CHINA”:
JURISPRUDENCE OF THE UNITED STATES COURT FOR CHINA
How successful was the court in the tasks it faced? I first evaluate the court’s law-andorder mission in terms of its jurisprudence on who was properly subject to its jurisdiction. Next,
I consider the court’s success in providing a model of rule of law. I do this in light of the body
of law that the court constructed for application within the District of China.
A.
To Whom Did American Law Apply in China? The Construction of a “Virtual American
Citizenship”
Under the system of extraterritoriality in China, jurisdiction depended on the defendant’s
nationality. A “citizen of the United States” who committed a crime against a “subject of China”
was triable “only by the consul or any other public functionary of the United States thereto
authorised according to the laws of the United States.” Similarly, “subjects of China” who were
“guilty of any criminal act towards citizens of the United States” were to be punished “by the
Chinese authorities according to the laws of China.” In civil suits as well, a Chinese plaintiff
could sue an American citizen only in an American court, while an American citizen would have
to sue a Chinese subject in a Chinese court.
In principle, the system was simple enough, and even had a certain formal symmetry to
it: the Chinese could be sued only in Chinese courts under Chinese law, and Americans in
American courts under American law. This symmetry, of course, was limited and entirely
misleading. The Chinese in America had no equivalent extraterritorial privileges: they were
absolutely subject to American law—which in turn explicitly discriminated against them.
Despite America’s putative “Open Door” policy, the Chinese were barred even from entering the
country after the enactment of the Chinese Exclusion Laws. In effect, the Open Door swung one
way only.
When the court began its operation, among its first targets were prostitutes. “America”
had in fact become synonymous with prostitution in Shanghai; brothels were generally called
“American houses,” prostitutes were referred to as “American girls,” and going to the red light
district was described as “going to America.”
However, most prosecutions failed. As soon as Judge Wilfley tried to crack down on
American “bawdy-house keepers” in Shanghai, many of his targets quickly married foreign men,
thereby acquiring a foreign citizenship which protected them from prosecution in the U.S. Court
for China. As a leading member of the American bar in Shanghai observes, several of the
brothel-keepers “jumped [Judge Wilfley’s] jurisdiction by hurried marriages with men of other
nationalities, mostly sailors who conveniently sailed away after the ceremony, the ‘bride’ having
paid over a marriage fee which ranged anywhere from one hundred to one thousand Chinese
dollars.” Put simply, under the law of derivative spousal citizenship, citizenship could be
bought and sold in Shanghai.
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“Vagrants” constituted another early target of the court. Like European colonizers
elsewhere, American sojourners in China were invested in maintaining “the illusion of a
homogenous white race, affluent, powerful, impeccable, aloof.” In the racial economy of
Shanghai, for example, there was little room for a Euro-American working class, or as one
observer noted, “in Shanghai every occidental is supposed to be a gentleman.” The court was
not at all shy about admitting that the elimination of lower-class Americans from China was in
fact one of its main aims. The District Attorney for the U.S. Court for China complained to the
State Department of “a certain class of unemployed Americans,” whom it had convicted on
vagrancy charges. Indeed, the court was quick to point out that while vagrancy was defined as
“the idle or dissolute wandering about,” the idle rich “who are under no obligation to work”
would not be encompassed in that definition.
At the same as it was seeking to impose stricter standards on how Americans were to
behave in China, the court also loosened its definition of who counted as an American in China,
at least for the purposes of the court’s jurisdiction. Despite the fact that both the treaties and
congressional acts in which its jurisdiction originated limited its jurisdiction to cases involving
“citizens of the United States,” the court happily assumed jurisdiction of Filipinos and Guamese,
as well. After the Spanish-American War, the Philippines and Guam had become United States
“insular possessions,” to use the language of the Insular Cases which sought to clarify their
constitutional relationship with the United States, along with that of Puerto Rico. The status of
these “insular possessions” was deeply ambiguous; in the words of one commentator, the
Supreme Court managed to find, in a single day in 1901, that Puerto Rico was “”in and/or out of
the United States in three different ways.” However, one thing that was perfectly clear was that
the residents of these new insular possessions were not “citizens of the United States,” at least
not without further action.
Yet whether one was an American “citizen” or an American “subject,” one might have
thought she was nevertheless beyond the jurisdiction of the U.S. Court for China so long as she
stayed out of China. When a woman living in Gettysburg, Pennsylvania was sued for divorce in
the U.S. Court in Shanghai, her attorney immediately queried the State Department about the
court’s authority to hear a divorce action “against a wife in America who had never been to
China.” In response, the State Department simply referred the attorney to the court’s previous
holding that “jurisdiction of the respondent’s person was not essential” in a divorce action that
did not seek other relief. Indeed, the court went even further, as it determined that in divorce
actions there was neither a residency nor even a nationality requirement for defendants, so long
as the action was solely for a decree of divorce, without property claims; in such cases, only the
plaintiff had to be an American. The court held it had analogous jurisdiction in actions for the
annulment of marriage: such suits could also proceed “regardless of defendant’s nationality.”
What sense, if any, can we make sense of the court’s erratic exercise of its jurisdiction?
Insofar as the court’s mission was to bring law and order to the American community in China,
that mission was severely compromised. Rather than “de-criminalizing” Americans, the main
effect of the court’s actions was to “de-Americanize” criminals: in response to the threat of
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prosecution by the U.S. Court for China, American criminals simply assumed other identities and
nationalities. Even the loudly proclaimed triumph of the American anti-prostitution campaign
was largely rhetorical: even at the moment of his triumph Judge Wilfley was reduced to
celebrating the fact that “[a]t present not a single lewd woman within the jurisdiction of this
court admits she is an American.”
Moreover, not only did the court de-Americanize criminals (admittedly inadvertently, as
American citizens under the threat of prosecution sought refuge in other nationalities), but it also
effectively Americanized some non-Americans, such as Filipinos and foreign spouses of
American citizens. On the one hand, then, the jurisdictional net cast by the court missed many
Americans in China, while on the other it also caught many non-Americans. The result, in the
end, was a kind of “virtual citizenship”—not citizenship of the United States in its ordinary
sense, but rather citizenship of “America in China” or “the American community in Shanghai,”
or the court’s own, self-defined idea of the relevant community.
B.
What Law Did the Court Apply in China? The Construction of an “American Common
Law of China”
Just as the court arrived at an idiosyncratic definition of “citizens of the United States,”
so in construing the body of law that would apply to Americans in the District of China it arrived
at an equally idiosyncratic definition of the “laws of the United States.” According to both SinoAmerican treaties as well as the court’s organic act, the court was to apply the “laws of the
United States” in adjudicating disputes in the District of China. In the strange conditions of
American extraterritoriality in China, however, even that innocent phrase “laws of the United
States” led to extraordinary interpretive difficulties.
At the heart of several problems was the court’s irregular place in the American judicial
hierarchy. At the most basic level, was it a federal or state court? Obviously—or perhaps
not?—China was not a “state” of the United States. In the end, the only thing truly obvious was
that the court was sui generis. The court was indeed like a federal court in that any definition of
the law it was charged with applying—“the laws of the United States”—undoubtedly included
general legislation enacted by the United States Congress. The court’s main problem from the
beginning was that the only body of law to which it had an unquestionable claim—general acts
of Congress—was simply irrelevant to the disputes that were typically brought before it.
Americans living in China married, divorced, entered into contracts and breached them,
embezzled, raped, murdered, wrote wills and died, and the Congress had had very little to say
about such matters.
Functionally, then, the U.S. Court for China was left with the hybrid task of serving as a
federal court and a state court—yet as far as the latter role was concerned, its misfortune was to
be a state court without a state. The solution devised by Judge Wilfley in the leading case was to
borrow the municipal code of the District of Columbia and the territorial code of Alaska. To be
sure, this still left room to argue about whether the two codes were laws of the United States, in
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terms of their territorial applicability, but as congressional statutes they were certainly laws
enacted by the United States. Equally importantly, since neither the District of Columbia nor the
Territory of Alaska enjoyed the rights of full self-government, these congressional codes covered
also what would ordinarily have been state law matters.
Judge Wilfley’s holding—which was upheld by the Ninth Circuit—had staggering
implications. After a dearth of applicable law, the U.S. Court for China was suddenly awash in
an excess of law. As a dismayed member of the House Committee on Foreign Relations
summed up the situation, “any law enacted from the foundation of the United States Government
up to the present time that the court thinks applicable is applicable”—regardless of whether such
act had been originally passed for the U.S. as a whole, or for Washington, D.C., Alaska, the
Philippines, or any other federal territory.
In short, the court’s holding resulted in an
explosion—or perhaps more properly an implosion—of American law into China: all federal
law applicable anywhere in the United States and its territories was now potentially the law in
China.
However, this meant that the court was now faced with the novel problem of choosing
among this exhilarating excess of law. The court developed two basic conflicts principles.
First, when two special acts (i.e., federal laws of limited territorial application) conflicted, the
later enactment was to control over the earlier one. Second, in a conflict between a special act
and a general one, however, the general act was to take precedence. As between the codes for
the District of Columbia and for the territory of Alaska—the two main sources of law for the
U.S. Court for China—the latter should have controlled over the former. These principles were
applied in an entirely ad hoc manner. Not only were the court’s choices often inconsistent, in
terms of preferring D.C. legislation in one area of law and Alaska law in another, regardless of
their chronology, but the court felt free to mix-and-match even within an area of law. For
example, although D.C. law applied to divorce generally, the court nevertheless applied the law
of Alaska to determine the parties’ residence for purposes of divorce.
In addition to its own curious mix of American law, the court also applied, without any
apparent statutory justification, the municipal regulations of the International Settlement. Yet
what was perhaps most peculiar about the applicability of the regulations of the International
Settlement was not simply that they were not American law, but that they existed, even in the
State Department’s view, “outside of any general system of law.” Technically, the multinational
International Settlement was on sovereign Chinese territory, yet in mid-nineteenth century it
essentially seceded from China and set up its own municipal government (including a militia and
a police force) which was constitutionally accountable only to its electorate. Consequently, the
regulations of the government of the International Settlement were not promulgated under the
authority—direct or delegated—of any national government.
Finally, the court applied even Chinese law with regard to real property; in this, it
followed the British Supreme Court for China, which had ruled that land would be governed by
lex loci rei sitae. The court also enforced what it called “comprador custom,” a hybrid mix of
Chinese and American commercial norms.
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How should one characterize the law applied by the U.S. Court for China? While Alaska
and the District of Columbia were its predominant sources of law, the end result was an
astonishing synthesis that was neither the law of Alaska nor the law of Washington, D.C.
Indeed, it was not the law of any jurisdiction anywhere, other than the District of China. The
final product can only be characterized as a unique body of law of its own—a kind of “American
common law of China” which the court constructed for its own purposes, not unlike its definition
of a “virtual American citizenship” which determined who came under its jurisdiction. In the
end, this hardly seems like a model of the “rule of law” for China to follow, which in turn
suggests that the court did not succeed even in terms of the goals by which it justified itself, both
to China and to international society at large.
V. A LAWLESS PLACE OR A PLACELESS LAW?
Restoring the legal memory of American extraterritorial jurisdiction China is important
for its own sake, given how thoroughly its history has been forgotten. More pragmatically,
insofar as the jurisdiction of the U.S. Court for China was justified in part as supplying a model
for Chinese law reform, it also provides an early example of the kind of “rule of law” projects
that are being imported to China today. The court’s experience thus serves as a sobering
reminder of the limits of such projects, as well as a testament to our enduring faith in their
power. At the same time, there is increasing advocacy for the extraterritorial application of
American economic and criminal laws throughout the world, yet few advocates are aware of
historical antecedents such as the U.S. Court for China.
But beyond its inherent historical significance and potential policy implications, can the
story of American law in China tell us something about law’s operation more generally? The
legal construction of “America” in China—in terms of “the citizenship of the United States” and
“the laws of the United States”—is likely to strike many contemporary observers as not an
instance of “law” but its perversion: an exercise in unconstrained judicial discretion. Yet this
judgment may be too rash. To reinvoke Lewis Carroll, it is also possible to regards the “District
of China” as a kind of looking glass: the image of law that we see reflected in it need not be the
opposite of law, the limiting case that transgresses all its boundaries. Rather, it may be a
particular instance of some of the general processes by which law is always made, at home and
elsewhere. The image is no doubt a distorted one, but the form of law that we see in it is in many
ways recognizably similar to law’s form at home.
From this perspective, it becomes possible to view that the legal construction of
“America” in China was an enterprise that shares much with the legal construction of “America”
in America. That is, “America” had to be invented (and must be daily re-invented) even in
America, and the boundaries that define the limits of “America” both in China and in America
are in important ways legal constructions. Indeed, it is quite possible to construe the court’s
work as that of a valiant defender of the rule of law, an institution that did the best it could in
kind of frontier conditions where it had relatively few material and legal resources at its disposal.
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Facing a dearth of legal authority and a multitude of judicial tasks that demanded their
immediate attention, the judges of the court did what great common law judges have always
done: they constructed a body of law using all the resources they could muster. In the
conditions of the “District of China,” the common law they created self-evidently had to be an
American common law of China, and the community to which that law applied had to be the
American community in China as that community existed there. It surely would be naïve to
expect the court to have served as nothing more than a passive conduit through which an
unmediated body of “American law” was delivered to a self-defining community of “American
citizens.” The result was a manufactured law for a manufactured community, to be sure, but as
postmodernists remind us, in the end those are the only kinds of laws and communities that there
are. In this view, what differentiates the District of China from the United States proper is its
greater temporal and geographic distance from us, which in turn allows us to see more clearly
just how the law was made there.
Yet even if we adopt this perspective and choose to view “America in China” as a nomos,
a normative community in its own right, it was certainly a contested community. When Judge
Wilfley first began to stamp out vice from the American community in Shanghai, his campaign
was met with indignant objections that he was “not empowered to decide what is, or what is not,
American.” The objection was misplaced, of course: as a judge he was authorized to decide just
that, even if law’s efforts to define communities are destined never to succeed perfectly. But
more importantly, in its efforts to define the boundaries of “American citizenship in China” the
U.S. Court for China was again acting much like its counterparts in the “real” America, where
citizenship has been no less contested—although its boundaries have been defined differently.
At a minimum, then, the District of China was not a lawless place in any simple sense,
even if the interpretation of “the laws of the United States” there was rather ad hoc. But perhaps
the real peculiarity of the District of China lies in the fact that it was governed by an essentially
placeless law, a jurisprudential bricolage that was not the law of any identifiable territorial
jurisdiction anywhere? And if so, wouldn’t that warrant some skepticism about drawing general
conclusions about “law” from the jurisprudence of the U.S. Court for China? Admittedly, we
tend to view American law in America as if emanates from the very ground of the United
States—as if it bears some kind of necessary, even natural relationship to it. However, this is
merely the relatively recent modern mental habit of associating law (real, authentic, proper law)
with the territorially defined sovereign nation-state. Yet, in the end, law has no natural home; at
its origin, it has no ground. A law becomes the law of a territory only after someone imposes it
on that territory and defines it, legally, as a territorial jurisdiction. In that jurisdictional
imposition lies law’s always ultimately imperial dimension.
Nevertheless, even if there are important similarities in how law has constructed
“America” both in the United States as well as in China, isn’t it willfully myopic—even
perverse—to equate law’s imperial quality in the two places? Surely we can draw meaningful
historical and moral distinctions between the operation of American law in America and in
China? After all, what distinguishes the American exercise of extraterritorial jurisdiction in
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SUMMARY
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China is its nakedly colonial nature, regardless of how it was justified under international law.
That is, unlike American courts in America, the U.S. Court for China was not imposing its
interpretation of “America” merely on Americans (however the court chose to define that
community), but it was doing so on somebody else’s land, in the midst of another sovereign
nation.
Undeniably, this distinction has some moral force. Yet it may prove too much—or
perhaps it is not entirely clear which way the distinction cuts. In the end, even “real” American
law in America operates on somebody else’s land—land that once belonged Indian tribes.
Significantly, in the collision of European and Indian political cosmologies from which
“America” emerged, these tribes were evaluated in terms of their “sovereignty” in the European
sense, and their lands were taken from them in accordance with “international treaties” to which
the tribes formally consented—much as China was viewed as having consented to American
extraterritorial privileges. In this sense, law’s empire reigns both at home and abroad.
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