Is it possible for any nineteenth and twentieth century study of legal history to be limited to a single nation state? It is no small irony that in the heyday of that jurisdictional construct, when many of today's nations were born and when protections of national sovereignty were enshrined in law, legal institutions regularly ran roughshod over national boundaries and touched multiple nationalities of people.

Posing such a question is a brazen act, at least among American historians, many of the most illustrious of whom have long considered foreign institutions in modern colonial settings to be of marginal importance. During the early 1980s I stumbled upon contemporary accounts of foreigners operating courts in China. While I was checking out one such account from Stanford University's library, David Kennedy looked down at the word “extraterritoriality” in the book's title and exclaimed, “Extraterritoriality? I thought no one was working on that!” Several years later, Jonathan Spence urged me to choose the wholly national Chinese Supreme Court for my doctoral dissertation, rather than the multinational International Mixed Court of Shanghai (it was the only time I ignored his advice).

Despite that long prevailing diminution of extraterritoriality, several archival projects recently published or imminently to be published fix such cross-border activities in their cross-hairs. Two of them, Par Cassel's Grounds of Judgment and Teemu Ruskola's Legal Orientalism, convincingly reveal the importance of extraterritorial courts by achieving that most difficult of tasks in legal history; namely, telling a detailed narrative and then illuminating it with connections to larger concepts. For both Cassel, a historian, and Ruskola, a law professor, foreign courts in East Asia provide a rich trove of material on grand themes about modern history, which these authors could not have developed by researching purely national courts. The success of their ambitious projects lends support to the notion that legal historiography is—or will be from now on—in large part a cross-border enterprise.

Cassel seizes on the concept of “legal pluralism,” which has been gaining ground among legal historians of late, and “modernity,” which he does much more to develop in this book, to try to make sense of what foreign courts were doing in China and Japan. His narrative tracks some familiar ground for China historians who have for several decades had the benefit of the studies of foreign incursions into China during the eighteenth and nineteenth centuries by Jonathan Spence, John Fairbank, Arthur Waley, and R. Randle Edwards, and, more recently, Christian Henriot and Frederic Wakeman, Jr. In an engaging fashion, Cassel retells the story of British gun boats forcing international trade and foreign legal immunity and privilege on China. But he cunningly compares it to the parallel incursions of United States gun boats into Japan. By concluding that China's centralizing revolution came too late to save it from the worst humiliations of this so-called “system of extraterritoriality,” whereas Japan's, through the centralizing regime of the Meiji Restoration (33–36), came in time (37–38), Cassel deftly avoids overgeneralizing the experiences of these two distinctly different Asian nations.

This argument also allows him to give proper due to indigenous responses and developments, thus surmounting any crabbed view that all the important actions were taken by the Western invaders (although it does not entirely free him from the image of Western aggression as penetration [11]). China's own history possessed antecedents to extraterritoriality, Cassel discovers. The Manchu Empire contained different legal orders with varying degrees of central supervision. In disputes between the majority Han and the ruling minority Manchus, Manchus were given a kind of immunity or extra procedural review (26), but this system differed from the extraterritoriality imposed by Western powers on China in the nineteenth century in that the Manchus declined legal jurisdiction over disputes in various ways. Foreigners were left outside the boundaries of this legal jurisdiction and, for the most part, when consular officials set up shop in China, were subject to their authority. Qing rulers acquiesced to this. Therefore, extraterritoriality was a joint effort by Western traders and Qing authorities to accommodate Westerners in China. It was not until the Manchu Qing dynasty was overthrown in 1911 that concerted opposition to extraterritoriality gained momentum in China.

In Tokugawa Japan, strictly defined but overlapping residential jurisdictions each enjoyed a certain amount of autonomy. Jurisdictional rules developed for disputes among parties from different jurisdictions among these. An internal revolt against the leaders of this system wiped out these rules soon after the American navy forced the leaders to accommodate it (31–32). In this way, American courts were never integrated into the Japanese court system, as the non-Chinese courts in Shanghai and other ports were integrated into China's, Cassel argues. As illuminating and fascinating as this contrast is, I wonder if he draws it just a bit too sharply. My own research revealed that the foreign mixed courts were only a part of the Qing imperial bureaucracy in a cosmetic way, and that only until 1905, when an imperial edict officially withdrew recognition from the largest of those courts, the International Mixed Court of Shanghai.

The comparison between China and Japan also allows Cassel to link the historical narrative to the broader theme of modernity. He argues that modernity came sooner to Japan than to China by virtue of Japan's ability to muster a “uniform citizenry,” which is, Cassel reasonably asserts, “a necessary prerequisite for any modern nation-state” (13). The bulk of the book does not directly aim to support the argument that Japan's citizenry was more united than China's, although Cassel points up the ethnic diversity of Qing China, and certainly describes a large amount of complexity in the administration of law in the Chinese city of Shanghai. The wealth of judicial and diplomatic cases that he unearths seems to go further to prove a more disparate response by China's leaders than by its citizens. However, by framing the foreign-influenced courts as catalysts—albeit in a negative, provocative way—Cassel turns the century in which they operated into a bridge between a China and a Japan that spurned free trade with Europe, and the China and Japan of World War II and beyond. Thus, Cassel provides an explanation for why Japan was the earlier wartime aggressor and colonizer, and perhaps even why Japan profited from international trade sooner than did China, and forged an internally coordinated manufacturing system geared toward exports.

Although the material on China occupies nearly three times the space of the material on Japan, Grounds of Judgment vigorously pursues the comparison of the two countries' experiences with foreign-imposed courts. Cassel devotes nearly a third of the book to Sino–Japanese relations around those courts. Let us not underestimate the difficulty of comparing archival material in both the baihua Chinese that was commonly used in official records in the early twentieth century, and whatever version of official Japanese was predominant at the time. Cassel is up to the linguistic challenges of this project. Perhaps he could have included more close textual analysis to follow through on some of his inspired observations about the establishment of the legal foundations of the foreign courts. Tracking down different motives among the officials who drew up the relevant treaties and rules, for example, Cassel shows insight in comparing the Chinese and English language versions of the British Treaty of Tianjin. It is not clear how he arrived at his “literal translation” of the Chinese version (59), but he enticingly turns up evidence in it that the Qing approach to multiethnic disputes influenced their negotiations of this treaty.

In Legal Orientalism, Teemu Ruskola uses the United States Court for China as a lens to better understand the way law itself, particularly as an American construct, is a vehicle for conquest and violence. In many respects, Ruskola's book is more provocative than Cassel's. Ruskola aims to debunk our staid notions of law as an instrument of order and justice, and to give a new and uglier meaning to American exceptionalism, even while he sheds light on a century of foreign courts in China. Also, he knows how to turn a phrase to serve his purpose, as in calling the People's Republic of China a practitioner of “Colonialism without Colonizers,” whereas “America's extraterritorial empire in China [w]as a colonialism without colonies … . ” (207). However, Ruskola shares several starting points with Cassel; namely, that China was and is fundamentally a diverse empire (57) and that modernity must be defined in order to understand the nature of the West's clash with China during the period of extraterritoriality.

For his part, Ruskola names “[e]xclusive territorial jurisdiction” as a “defining feature … of the sovereignty of the modern nation-state” (113). This refers to the automatic application of the law in whose territory the litigant resides or is found. Ruskola does not believe that this principle is workable, if rigorously applied, even as it remains one of the perquisites of power of rulers around the world (114). Clearly it was flouted, or ignored, by those in the United States who established courts on Chinese soil in order to gain immunity for their subjects from Chinese law. Here is where some unanswered questions arise that could profitably be pursued. What does such a flagrant departure from this rule do to the modernity of the nation-state? Is modernity thereby compromised? Or has modernity, at least of the American enterprise, been an illusion, a construct, all along, and, therefore, at best tangentially connected to the rules for exercising jurisdiction?

The bulk of Ruskola's support for his view of American-style law lies in the chapter in which he deconstructs the Sino-United States Treaty of Wanghia, and the United States' principal emissary Caleb Cushing's depiction of that document, and in the chapter detailing the workings of the United States Court for China. In both chapters, Ruskola's interpretive insights are layered onto a compelling story of ruthless persistence and arrogant ignorance on the part of Cushing and his ilk. He rightly unmasks the Russian refugee Anatol Kotenev as a paid propagandist for the International Mixed Court of Shanghai (192–93). Ruskola shows how difficult it was for the founders and operators of the United States Court for China to locate it within the United States court system, despite all their sometimes contradicting efforts to do so.

Ruskola enriches his description of American jurisdiction in China with references to British and French officials who worked both as rivals and allies with the Americans in the business of setting up their own courts in China, but his focus is on the Americans, and he does not attempt a comparison of the strategies used by the three groups, or by any of the other diplomats of nearly a dozen nationalities who operated courts in China in the late nineteenth and early twentieth century. The comparison would lend support to his overarching conclusion that Americans practiced the most egregious form of extraterritoriality in China. In my own archival research, Britain's and France's representatives certainly provided some stiff competition in this regard.

It makes for compelling reading when Ruskola links these earlier events to China today, which has “‘juridified’ itself,” in part by assimilating itself into the community of nation-states that is defined by a Western notion of sovereignty and “under the aegis of (Euro-American) international law … . ” (200, 207–8). He also suggests that oppression of its own people by China's government is a legacy of American extraterritoriality there. In so doing, he argues, China's government has adopted the very mechanisms used on its people by Americans during the period of extraterritoriality.

Cassel and Ruskola have earned a prominent place among the now growing ranks of legal historians fixating on cross-border institutions. Until now, East Asia has not figured much in such studies. Not only have these two authors gone a long way toward filling this gap, but also, the significance of researching cross-border courts is clearer after Cassel and Ruskola have trained their prodigious talents on them. We see now a rich picture of how a predatory version of such courts left a lasting impression on the people who were subject to them, as well as on the people who operated them.