I. Introduction
What could be a suitable scale to describe the process of norm diffusion? In a macro-perspective, the diffusion of norms is described as a process in which norms disseminate around the globe without being changed and without noteworthy rejection, at least when the particular norm has reached a taken-for-granted status.Footnote 1 This ‘linear’ and ‘static’ model of norm diffusion has been criticised because it lacks a sense of the contested nature of localisation processes.Footnote 2 As a consequence, more local perspectives have been claimed, which shifted the accent on the reinterpretation and transformation of normative patterns on local actors as important agents within this process.Footnote 3 The debate over ‘A Global IR Research Agenda’ has echoed this by underlining the requirement of exploring local diversity but at the same time understanding it as embedded in world historical contexts.Footnote 4
The article contributes to this debate by discussing the case of a mixed court which was established in Shanghai in the nineteenth century. The court was mixed in the sense that both a Chinese judge and a foreign assessor were involved in its decision making. The court had the jurisdiction over the Chinese residents of the international settlement of Shanghai as well as those foreigners which were not represented by a consulate. Altogether, this included more than 90 per cent of the population of the international settlement. The court issued decisions in commercial, civil and criminal cases.
As a court initiated by foreigners, it forms part of the Western colonial project and would fit in the macro-pattern of European-Asian unequal relations with the result of the coerced imitation of foreign norms. As a Chinese court embedded into the Chinese administration, it also makes a micro-case of the localisation of foreign normative patterns. The article shows, that both perspectives the global as well as the local describe the phenomenon insufficiently. The article illustrates that the mixed court forms a case which is not reducible to its single foreign or domestic components. The Shanghai Mixed Court represents a case of transcultural multinormativity which is a combination of various normative and procedural elements.
The legal historian approach of multinormativityFootnote 5 is an extension of the perspective of legal pluralism in the sense that it does not take concepts of law and legal normativity as a major point of reference. Transcultural research on norms and normative decision making ‘need […] an empirical approach that is not developed from the perspective of (western, learned or whatever law), but apt for intercultural communication for normativity’.Footnote 6 Against this background, this article studies the decision making of the mixed court not in light of a certain standard of legal normativity but describes how normative decisions were made in a transcultural context using different normative patterns.
The analysis of the Shanghai Mixed Court is based on archival sources as well as standard historical works on the subject. The aim of the case study is to illustrate the conceptual argument rather than to present new historical evidence. However, also as a historical case the Shanghai Mixed Court is of interest for an international relations readership, for it is a rather understudied case of colonial jurisprudence. Recent exceptions are chapters in the works of Ruskola who integrated the court in his study on legal orientalism,Footnote 7 and Cassel who interpreted it as a case of extraterritorial legal pluralism.Footnote 8 Both interventions will be discussed in this article. One reason for the weak academic interest in the case might be that it is difficult to frame it within the usual pattern of global and local as well as European and non-European legal relations.
This is the reason, however, why the case was selected for this study. The mixed court emerged in the context of extraterritoriality but in important aspects differs from patterns of consular jurisdiction. Thus, while the mixed court is not representative for common understandings of extraterritorial jurisdiction it is typical for the complex interaction of diverse normative expectations in processes of norm dissemination and adaptation. As a case of a hybrid normative institution, it is in particular characteristic for colonial and semi-colonial contexts. Altogether, the mixed court forms a temporary practice of merged normative expectations. To what degree this also has had a long-lasting influence on the development of the judicial field in China is an important question but can only be touched upon in this article.
The article illustrates that global norms research needs to be sensitive for scales which are neither only global nor local but make visible phenomena which combine both in an original way. On the one hand, this is a critique at norms research which is focused at just the international or national character of a normative pattern. On the other hand, it represents a case of Global-IR research which is interested in local diversity embedded in global dynamics. The article is organised in the following four sections. In a first section the article introduces the issue of scale and norm research. In the following section, the paper discusses the case of the Shanghai Mixed Court zooming in on different scales. This is discussed, then, in light of the concepts of legal pluralism and multinormativity. In a concluding section the main results will be summarised.
II. The scale of norm research
In this section the article discusses the aspect of scale. The aspect of scale refers to the research perspective which is used to analyse normative transfers and normative institutions such as the Shanghai Mixed Court. How to make a subject visible which combines a variety of global, national, and local elements? Is it better to look at it from the far distance in order to understand it within a broad historical and social context? Or should one get really close to it in order to reconstruct its fine ramifications?
Furthermore, in which sense is the combination of different scales necessary to get a better understanding of how foreign and local dynamics interact in the emergence of norms and normative institutions? The court is neither a global nor a local phenomenon in the sense that it is neither explainable from the macro-level of global normative expectations nor from the micro-level of domestic normative contexts. As the article will demonstrate, the court rather combines foreign and domestic elements and by this creates an original normative institution.
Finding a suitable analytical scale to approach a research subject is a general problem of the social sciences. Ulinka Rublack has described the problem for the field of historical studies:
A microscopic, grainy, or ‘pixel-by-pixel’ approach is typically criticized for not representing a broad enough context or not even an analytical problem as well as being too narrow in providing historical explanation. The telescopic, by contrast, is criticized as being void of sensitivity to detail, removed from any truthful complexity of historical life, and typically locked in a ‘mono- or bi-causal trap of explanation’.Footnote 9
This metaphor can be applied to the research on the diffusion of norms. Here, telescopic views have dominated the research on diffusion in international relations and sociological studies for a long period. A telescopic perspective is used to study the international dynamic of norms, its emergence and acceptance,Footnote 10 as well as its imitation,Footnote 11 and recursivity.Footnote 12 The telescopic view, however, has been criticised since it does not catch the mechanisms of socialisation,Footnote 13 localisation,Footnote 14 and translationFootnote 15 of international norms in domestic contexts. As a consequence, diffusion research has turned to more microscopic perspectives which are suitable to study these mechanisms.
While imitation and recursivity accentuate the macro-dynamics of an international scale, processes of adaptation, and translation have a rather local signature. Furthermore, as adaptation and translation studies have become more influential during the recent past, the focus has shifted from the global level to the local as well as from the idea of universality to the idea of diversity.
This shift from the global to the local as well as from universality to diversity is visible in concepts of norm contestation.Footnote 16 Analytically, contestation is used in international relations studies as a ‘concept to grasp the diverse practices by which actors […] dispute the validity, the meaning or the application of norms’.Footnote 17 Wolff and Zimmermann have also pointed to the normative connotations of the concept, as contestation is understood as a means to further the legitimacy of normative orders.Footnote 18 Especially Antje Wiener has emphasised this ‘norm-generative’ dimension of contestation.Footnote 19
The ‘norm-generative’ dimension of contestation is one of the issues this study on the decision making of the Shanghai Mixed Court has to deal with. The case study especially illustrates the conditions of contestation in transcultural contexts.Footnote 20 In these contexts the meaning of normative concepts are contested, as the norm users bring in diverse cultural experiences and expectations (‘normative baggage’).Footnote 21 The case of the mixed court is striking as it is less the conflict over the application of particular normative patterns which is visible here, but the combination of highly diverse foreign and traditional normative elements.
A central issue of this article thus lies not in the reconstruction of contestation in the sense of dispute but in the investigation of how this process of multinormative interaction resulted in the acceptance or even legitimacy of this particular institution of normative decision making. Against this background, this study may be understood as study on a ‘norm generative’ dialogue where the ‘norm’ is the particular model of judicial decision making which was constituted by the mixed court and the ‘dialogue’ is the dialogue among the different normative patterns which were applied by the court.
In order to describe and analyse these different normative patterns it is necessary to combine different scales of analysis. Norm research usually operates with dichotomies such as the global and the local, the international and the national, or the West and the rest. The idea of zooming in and zooming out opens the analysis for perspectives which are detached from these regular points of observation or at least provide further perspectives which might capture more relevant aspects of a research subject. I borrow insights from transcultural research on ‘Scales of knowledge’ which point out that zooming in and zooming out on norm circulation processes makes it possible to adjust the focus of the lens beyond standard grids:
[m]any key oppositions in the vocabulary of transculturality – such as ‘global’ and ‘local’, ‘micro’ and ‘macro’, ‘national’ and ‘transnational’, and so on – work with unexamined dualistic assumptions and fail to recognize the (potentially infinite) number of scales that are employed by human subjects in their various activities, or that might be used for research.Footnote 22
Furthermore, the metaphor of zooming in and out is used to stress that a research strategy should not prioritise just one angle of observation, but rather should be using different perspectives in order to accentuate different aspects of a subject.Footnote 23 This is the case in particular in the analysis of hybrid phenomena such as the mixed court which is composed of macro (global diffusion) and micro (local tradition) elements. In such a case of a ‘micro-macro hybrid’ the research perspective should not be an ‘either-or decision’ but instead reflect ‘on how micro and macro zoom levels are conceptually interlinked’.Footnote 24 Junk and Rauer refer to the works of Knorr Cetina, who combines, in her analysis of financial markets, ‘macro-structures and micro situations’.Footnote 25 While the mixed court cannot be portrayed as being an element of global network, it, nevertheless, is a situational practice in which macro and micro elements coalesce.Footnote 26
In International Relations, practice theoretical approaches pointed to the ‘importance of scale’ and suggested not to take particular levels of analysis as ‘natural categories’.Footnote 27 Practice theoretical approaches are ‘interested in concrete situations of life in which actors perform a common practice and thus create and maintain social orderliness’.Footnote 28 Thus, the aim of practice theoretical approaches is not only to get beyond the application of standard levels of analysis, but more generally the transcendence of the static distinction between agency and structure: ‘Practices […] have a dual role, both creating order through accountability and serving to alter the “structure” by innovations of reflexive agents.’Footnote 29
The analytical differentiation of structure and agency is not the primary interest of this study, however. First of all, the technique of zooming in is applied here in a way which it is criticised by Bueger and Gadinger. As ‘a strategic construct’ it is used to make visible and accentuate different appearances of the same phenomenon. The aim is, in fact, to illustrate by this that processes of diffusion and contestation have implications with regard to what is constructed as global as well as local.Footnote 30
Yet, the issue of structure and agency is relevant at least in the zooming perspective which debates the ‘situational’ decision-making of the court. As the article will develop in the following, the decision making of the court is spontaneous rather than routinised. Due to this lack of routine which structures the decision making, the judges were not in position to ‘enact’ a particular set of norms or normative procedures but to ‘act’ in order to decide a conflict.Footnote 31 Thus, while practice theoretical approaches provide important analytical impulses for this study, in the end it is questionable whether the decision making of the court constituted a ‘practice’ in this sense at all.
The article will show in the following, that the decision making of the mixed court is not reducible to either the diffusion of norms on the macro- or the influence of local traditions on the micro-level alone. The Shanghai Mixed Court is ill-described as an international, national, or local phenomenon. It combines elements of all of these levels and thereby creates an innovative normative institution. From a global perspective, semi-colonial China seems to be a conventional colonial site where unequal treaties enforce foreign norms and normative procedures in the treaty ports. The mode of diffusion is that of passive reception. Turning to the national level, the case of Shanghai appears different. The influence of foreign norms is contested and the Chinese government is using its leeway to reject it. Zooming in further on the local level, Shanghai turns out to be a unique transnational space which is regulating itself in a mode of multinormativity rather distant from the influence of foreign or national governments. Finally, in the micro-situation of a single court decision, such as in the case of the Shanghai Mixed Court, this multinormativity is translated into a new entity of hybrid law. Thus, using different lenses leads to different if not contrary results.
III. The Shanghai Mixed Court
This section is concerned with the reconstruction of the emergence and practice of the mixed court using different scales. Zooming in from the global level down to the level of situational decision-making, the different facets of the court, with regard to its context, construction, jurisdiction and decision making, are illustrated.
Before, however, the relevance of the case of a mixed court in Shanghai shall be introduced in greater detail. The Shanghai International Settlement was established in the 1860s and was a unification of the British and the American settlement which were a consequence of the first Opium War (1839–42). The unequal treaties, which followed the war, gave foreigners a range of unequal privileges inter alia the right to reside in selected cities (treaty ports) as well as immunities vis-à-vis the indigenous justice institutions. Shanghai was one of these cities. Foreign residents soon began to establish so-called settlements. In the semi-colonial context, foreign settlements were zones within a city which were detracted from the authority of an indigenous rule, and which were controlled by foreign consuls or by the self-government of oligarchies of foreign merchants.Footnote 32 The Shanghai International Settlement followed the latter model.
The settlement was governed by the Municipal Council which was elected by the taxpayers of the settlement. Its members were foreign merchants residing within the settlement. It was not before 1928 that the first Chinese was elected as a member. Even though more than 90 per cent of the population of the settlement was Chinese, the self-government of the Municipal Council was a form of government which had no formal ties to the Chinese administration as well as to other foreign governments.Footnote 33 Thus, the council was a representation of foreigners but not of foreign governmental interests. The central orientation for their administration activities were local political and commercial interests as well as the provision of local security.
The mixed court was an important institution in this context. Established in 1864, it was the largest court in the Shanghai International Settlement and, according to Lee, decided ‘about five and a half million cases during its seventy-eight years of operation’.Footnote 34 The court was initially introduced as an instrument to facilitate commerceFootnote 35 but later had the jurisdiction over all kinds of commercial, civil, and criminal matters. While a focus on trade is described as typical for the genesis of colonial law,Footnote 36 the mixed court was not limited to this sphere.
Furthermore, as a mixed institution it went beyond what was described as systems of dual justice.Footnote 37 The mixed character of the decision making of the court will be discussed in greater detail below. However, with regard to the general construction of the court it is interesting to note, that while the foreigners considered the practice of joint decision making as an instrument to further foreign interests, the Chinese counterpart used a term to refer to the court (gongxie) which, according to Cassel, suggests that Chinese officials placed the court into a long tradition of joint decision making in former dynasties.Footnote 38 In other words, the practice of joint decision making, which, as will be described in the following, was represented by both as an appropriate means to organise dispute resolution in the special context of the international settlement. While Western commentators considered the mixed court in Shanghai as a reception of other Western mixed courts in the world, the Chinese placed it in the Chinese traditional order.Footnote 39
Altogether, Shanghai and the mixed court are cases of superior relevance within the context of colonial studies and norm research. As a special case of extraterritoriality, the court is relevant as it served not just as an instrument to facilitate commerce but rather fulfilled wider governance functions. In terms of norm research, the mixed court is highly significant as an institution of joint decision making. Like no other colonial institution the mixed court is predestined to illustrate the application and combination of different foreign and local normative patterns. As the article illustrates now, this multinormativity has to be carved out by zooming in from the global level of norm diffusion to the local level of situational decision-making.
Global
The Shanghai Mixed Court was one result of the unequal legal relations between China and Western powers during the late nineteenth and early twentieth century. The court was a local facet of the global practice of Western powers to establish extraterritorial jurisdiction in this period. Extraterritorial jurisdiction means that foreigners are not under the jurisdiction of the host state but were tried and punished by foreign consuls according to the law of their home state. Extraterritorial jurisdiction is based on the principle that the law is bound to a person and not to a certain territory.Footnote 40 Extraterritoriality was an instrument of ‘informal empire’ and used in regions in which Western powers avoided exercising full political and legal control.Footnote 41
In China, extraterritorial jurisdiction was established in the unequal treaties, which from the 1840s until the 1940s shaped China’s relations towards Western powers.Footnote 42 Richard Horowitz has highlighted the irony of the treaties which at the same time represented and undermined fundamental international legal principles of independence and sovereignty.Footnote 43 In international law this contradiction was justified with regard to an alleged lack of ‘civilizational’ standards. According to this, extraterritorial jurisdiction was necessary ‘as long as the civilization of non-Christian States has not developed their ideas of justice in accordance with the Christian ideas, so as to preserve the life, property, and honour of foreigners before native Courts’.Footnote 44 As a consequence, ‘European extraterritoriality […] became a badge of inferiority for many non-European countries, a sign of their “uncivilized” legal status,’ as Gong put it in his famous work on the ‘Standard of Civilization’.Footnote 45
Even though the Shanghai Mixed Court usually is discussed in the context of extraterritorial jurisdiction,Footnote 46 it does only in part fit into the patterns of extraterritoriality for it does not form a case of consular jurisdiction. In fact, mixed courts were an instrument to overcome disadvantages of consular jurisdiction in particular with regard to cases in which parties to a conflict were natives or citizens of another country.Footnote 47 Thus, as not representing a case of normal consular jurisdiction the court does not represent the core element of extraterritoriality. However, as an ambition to overcome shortcomings of the consular jurisdiction it agrees with the long-term goals of extraterritoriality as an instrument of conflict resolution in multicultural and multi-religious communities.Footnote 48
The court was set up within the British Consulate in 1864, later it was moved into its own facilities. Against the background of their experience in other colonial places, the British had no intention of replacing native jurisdiction.Footnote 49 The original idea was to establish a Chinese court inside the settlement which coexisted with the consular courts and the Qing court system.Footnote 50 Thus, the court was the result of foreign initiative and it was legally constructed with reference on the treaties of Tianjin. However, the idea was to establish a Chinese court which had the jurisdiction over the Chinese citizens of the settlement as well as those foreigners which were not represented by a consulate. According to the Rules for the Mixed Court, the court had the jurisdiction ‘in commercial suits, and in civil and criminal cases’. Cases should be decided in accordance with Chinese law. The judge was a Chinese official (‘Sub-Prefect’). A foreign assessor (‘Consul or Deputy’) was allowed to sit with the court only when foreign interests were concerned.Footnote 51
Altogether, referring to a global scale the Mixed Court represents a special case of extraterritorial jurisdiction which is different to consular jurisdiction. The court was established as a Chinese court with the order to apply Chinese law. However, the court was established with reference on the unequal treaties and provided the opportunity for foreign assessors to exert influence on its decision. Thus, in this sense the court appears as both being a creation of foreigners and an instrument of foreign control.
National
Extraterritorial jurisdiction was not only a symbol of foreign intervention. At the same time, it could be used strategically by the authorities of host states ‘as a peculiar sign of resistance to even greater control by foreigners’.Footnote 52
This seems to have been the case in China. The Mixed Court was part of the imperial administration and, as was already mentioned, the Chinese judge was part of the Chinese bureaucracy. Furthermore, ‘the court itself at all times claimed to be a legitimate Chinese court and an integral part of the Chinese judicial system’.Footnote 53 According to the Rules for the Mixed Court the court was responsible only for minor cases. In cases of ‘grave offences’, it had to refer to higher levels of the imperial administration.Footnote 54 This restriction underlines the formal integration of the court into the Chinese judicial system. In addition to this, it illustrates that the court implemented traditional Chinese elements into the construction of its jurisdiction. Especially with regard to criminal matters the court was portrayed as being ‘essentially a Chinese Court’ in historical sources.Footnote 55 According to Lee, ‘the type and degree of punishment’ is an important aspect to describe the jurisdiction of a court in traditional Chinese law.Footnote 56
This aspect of punishment jurisdiction has led to foreign critique at the practice of the court. This critique is interesting for it reveals a sentiment of a lack of control by the foreigners. In the 1870s and 1880s commentators in The North China Herald criticised that the judges of the Mixed Court should act more independently vis-à-vis higher levels of the Chinese administration. Arguing, that all crimes which would have been committed in the settlement should also be judged in the settlement, these comments claimed that the Mixed Court should be the first instance to hear a case before it would be forwarded to other Chinese authorities.Footnote 57 The court should be allowed to deal also with ‘graver criminal cases’ in particular ‘because there is no provision […] for the appearance of foreign prosecutors’ in the courts of the superior level.Footnote 58
The alleged lack of power and independence of the Chinese judges was a general aspect of critique of the foreigners with regard to the court.Footnote 59 However, it was not independence as such that those critiques were demanding, but independence from other Chinese authorities. Thus, the critique first of all illustrates that the foreigners saw the necessity to increase their influence on the court. Altogether this episode underlines the Chinese interpretation of the court as being part of the imperial administration and as such being an expression of independence. Thus, zooming in from the global to the national level is changing the shape of the court from an institution which represents foreign interventionism into a residual of autonomy.
Local
The claims of greater power for the court were not only driven by the motivation to increase foreign influence on the court. Another argument, which was represented in these comments, referred to the special character of the community in Shanghai. Crimes which have been committed in the settlement should be punished in the settlement regardless whether Chinese or foreign citizens would be affected by it, because it would be ‘a matter in which the interests of all residents are very closely bound up’.Footnote 60
The international settlement of Shanghai existed for almost a century until it was terminated in 1943. During this period the different residents of the settlement developed a distinctive collective identity. In the 1920s, Manley Hudson, a professor of international law who worked on the Mixed Court, observed, that ‘today the foreign and Chinese communities are so commingled in business relations and in the residence districts that any separation of them seems impossible’.Footnote 61 The emergence of a transnational local identity is further represented by the anecdote that the British referred to the residents of Shanghai as ‘Shanghailanders’ and also other ethnic groups found expressions to describe themselves as ‘Shanghainese’.Footnote 62
The transnational character of Shanghai as a city is first of all represented by the unique institutions by which it was governed. In 1854, the Municipal Council began to function as the government of the settlement until 1943. The council was not established by the treaties but by agreement of local Chinese authorities, consular representatives, and foreign residents.Footnote 63 From the beginning, the council ‘strengthened its independence from the consular body as a self-governing entity’.Footnote 64 As a consequence, the council has been perceived of as ‘an oddity – a city on Chinese soil, governed by foreigners representing not their governments but the foreign residents of the city’.Footnote 65
The Mixed Court correlates with this pattern. As was already mentioned, the court had the jurisdiction to regulate conflicts among the Chinese population of the international settlement and those foreigners which were not represented by a consulate. This included more than 90 per cent of the settlement’s overall population.Footnote 66 As was already illustrated, the Court was an institution of final conflict regulation for a million of people.Footnote 67 This illustrates the tremendous importance the court had for the local population. Furthermore, similar to the Municipal Council the court was eager to further its independence from both Chinese and foreign representatives, ‘the Court developed procedures, […], that circumvented its jurisdictional limitations and strengthened its local autonomy’.Footnote 68
Even though the global as well as the national lens made visible important aspects of the court with regard to the issue of foreign control and integration into the national administration, this subsection has shown that zooming in further on the level of Shanghai is pointing out its particular local characteristics. In this perspective not the foreign or the Chinese element appears decisive for the understanding of the Court, but the special context of the social community of Shanghai, its collective identity, and self-government. This self-government, of course, was a variant of foreign control, but one which was disconnected from the direct influence of any government.
Situational
Not only the Municipal Council was perceived of as a curiosity, also the Mixed Court ‘was an anomaly in both Chinese and foreign eyes; both Chinese and British judges delivered sentences according to a mixture of Anglo-American and traditional Chinese procedure and principles’.Footnote 69 The various historical accounts on the court observe that a diversity of normative sources was used by the court: foreign legal principles, domestic Chinese normative provisions, and local rules, which had been issued by the Municipal Council. In this context it is interesting, that the proclamations of the Council, which were one of the rare written foundations for the decisions made by the court, used a traditional Chinese form,Footnote 70 which certainly was an important factor for the acceptance of the adapted normative elements.
Altogether, the decisions made by the court resulted from situations in which, due to the special local character of the settlement, new normative challenges emerged, to which the court reacted by using domestic and foreign, traditional and novel normative rules. Its normative basis was an amalgamation of various different normative patterns, which Meighen depicted in a prosaic style:
[…] the judicial machinery is not slowed by constitutional restrictions […] No oath is administered to a witness, no Bible is kissed […] The lawyers practicing before the Mixed Court, about 200, are of many nationalities […] and as a natural result the procedure and practice is a growth containing contributions from different systems of law.Footnote 71
Against this background a standard Western narrative of the court emerged, according to which the court was a capricious institution with no fixed normative standards. Some contemporary observers of the court had little trust in the court as an institution of judicial decision-making. On the contrary, commentators found that ‘the scenes […] in that tribunal constitute a public scandal’ with ‘an acting Magistrate, shamelessly and cynically unjust’, and ‘a code of rules which is entirely inadequate’.Footnote 72
Critiques like this one were driven by the persuasion that the court was not able to meet Western standards of adjudication. Even in secondary literatures on the court, published more than a hundred years later, the judgement on its jurisprudential qualities still is disillusioning: ‘The principles upon which the court arrived at its decisions and the rules of conduct it enforced did not amount to any consistent or coherent system of jurisprudence.’Footnote 73
The article will come back to this issue of ‘legal orientalism’Footnote 74 in the following. However, even though the court failed in forming what was considered a coherent system of jurisprudence, it has fulfilled, as was illustrated above, the social function of making normative decisions and this was generally acknowledged by the local community of Shanghai. An important factor of this acceptance was the combined application of traditional and foreign norms in the various cases decided by the court.
Lee has underlined that in the decision making of the court in addition to foreign elements in particular local sources were very important. The court enforced local police and land regulations as well as the regulations created by the Municipal Council.Footnote 75 Also local customs were applied in particular cases.Footnote 76 In other words, the court neither just introduced foreign normative patterns nor aimed at conserving traditional Chinese elements. Rather it made use of any kind of normative sources that seemed suitable for the regulation of conflicts in this special social situation formed by the Shanghai International Settlement where a diverse community was confronted with novel normative challenges.
This situational character probably was the main reason, why the court was described as acting arbitrarily in the comments of Western observers. The judges obviously showed huge flexibility. The decisions of the court had no continuity and did not refer to each other. In other words, the decisions did not create precedents as historical works on the court underline.Footnote 77 Furthermore, as most judges remained at the court for only a short period of time, also something like an institutional memory of the court could not emerge.Footnote 78
The observation that the court did not develop a coherent system of interacting judicial decisions points to a general problem with regard to the understanding of the court as a judicial institution. The lack of precedents and path-dependent judicial decisions makes it impossible for the addressees of the court to predict future decisions. It follows from this, that one of the key functions of the legal system in general, which is the stabilisation of normative expectations, is seriously challenged. Niklas Luhmann has described this as the ‘future reference’ (Zukunftsbezug) of the law. According to this, a central function of the law is to protect those actors which expect that other actors will abide by legal regulations, or which at least trust in the mechanisms used to sanction violations of the law.Footnote 79
To sum up, zooming in on the level of the making of individual decisions has demonstrated that the court was characterised by a great flexibility of the judges. The judges were not bound by precedents or a particular set of normative sources. On the contrary, the judges referred to foreign, Chinese, and local norms and procedural mechanisms. In this sense, the decisions of the court are of an arbitrary character and have to be analysed within their situational context. However, the court-like form of making decisions as well as the justification of the decisions in light of law-like normative sources, underlines its judicial character. In the following section the article will further analyse this tension with regard to legal debates of legal pluralism and multinormativity.
IV. Multinormativity
Many aspects of the international settlement and the mixed court have a constitutional dimension. Even though the court was a consequence of the semi-colonial system it was largely accepted by the residents of the settlement because it was not just an instrument of power politics. The mixed court was introduced to further justice and local security and in this sense was an element of the legitimisation of the international settlement and its model of self-regulation.Footnote 80 It formed a judicial arena in which claims of legality and illegality were decided.
As the article has illustrated above, the decision making of the mixed court was based on a diversity of normative sources. The discussion in this section aims at showing that this plurality and overlap of normative sources, which forms one of the key issues in debates on global constitutionalism,Footnote 81 has to be understood as a case of multinormativity rather than legal pluralism. While the spontaneous and situational decision-making of the Shanghai Mixed Court has been analysed as a case of legal pluralism in various studies, however, the approach of multinormativity seems more suitable to describe and analyse the interaction of diverse normative patterns in transcultural contexts.Footnote 82
Legal pluralism is described as a situation where two or more normative orders are applied in one social field.Footnote 83 While, historically, legal pluralism began as a research interest on the interaction of different normative orders in the context of colonisation,Footnote 84 more recent approaches on global and transnational legal pluralism research the coexistence, hybridisation and conflict of formal and informal, state and non-state, national, international and transnational norms.Footnote 85
For the case of the Shanghai Mixed Court the early legal pluralist work is an obvious template. Referring to colonial and semi-colonial contexts, which have been described above, legal pluralists analysed the imposition of foreign normative patterns within a situation of power-asymmetries.Footnote 86 However, as the case study has demonstrated, focusing on power inequalities underrates the degree to which local actors used foreign normative patterns and colonial legal institutions as instruments to resist foreign control. Furthermore, in the case of the Shanghai Mixed Court, the equal role of Chinese normative sources would not fit into a pattern of pluralism as imperialism.
At this point more recent approaches of legal pluralism could be useful. The newer legal pluralism abstracts from the idea of hierarchy in the sense that it does not assume a centrality of law which is generated by state institutions but acknowledges also informal, non-state norms and normative practices as law or at least as relevant for an understanding of the way legal systems work. The self-regulation of the international settlement, of which the activity of the Mixed Court is an important result, would fit into this pattern of self-generated social norms developed at a distance from governmental influences.
A core problem of the discourse of legal pluralism, however, lies in the definition of criteria allowing to determine which types of social norms are understood as legal norms and which are not. Is every kind of normative expectation a form of law? Tamanaha has responded to this question with his ‘non-essentialist’ understanding of legal pluralism. According to this, and against the background of the impossibility to develop a universal concept of the law, ‘law is whatever people identify and treat through their social practices as “law”’.Footnote 87 This kind of a legal theory, which is based on recognition, was not new, however. Merry has pointed to the analytical problem that ‘[…] calling all forms of ordering that are not state law by the term of law confounds the analysis’.Footnote 88
The debate about how to draw a line between legal and non-legal forms of normativity is a key issue of legal pluralist works. Not least, because many legal pluralists perceive of the law as an emancipatory project. In a critical comment of normative legal pluralism, Klaus Günther has emphasised the symbolic value which law obviously has vis-à-vis other types of normativity. Why else is it so important for the actors of normative processes to have a normative practice acknowledged as being law if anything can be law anyway?Footnote 89
Against this background it is very difficult to use legal pluralism just as an analytical research agenda as legal pluralist approaches still seem to prioritise the law vis-à-vis non-legal norms and normative institutions. This begins with the symbolic weight, which the law has in relation to other types of norms and ends with the attempts of legal pluralist works to find out the mechanisms which incorporate the non-legal into the legal.
For a study on the normative practices of the Mixed Court the question whether they were law or not is not the primary issue. On the contrary, it is this kind of a question which might evoke a ‘legal orientalist’ rhetoric blaming the court for not meeting Western imaginations of legal decision-making but to describe it as ‘uncivilized’ and a burlesque of a legal institution. This kind of discrimination of non-Western normative practices has an intellectual foundation in legal theory which ironically is framed as emancipatory. To avoid this pitfall, it makes sense to describe the Mixed Court without referring to the general model of what a legal system should look like. In the terms of different scales, which have been introduced above, the court is a variation of the macro-entity of the law but one which cannot be reduced to its influences alone.
Legal historians suggest the notion of multinormativity to describe normative practices decoupled from general models of the state and law-centred normativity.Footnote 90 Studies on multinormativity reconstruct the application of multiple forms of normativity without taking the law as a major reference point. The law is not understood as the form of normativity into which all other forms have to be translated in order to be relevant. Furthermore, there is no expectation of a clearly defined hierarchy between different normativities. On the contrary, the mobilisation of a particular kind of normativity is a highly contingent process.Footnote 91
In sociological terms this process is characterised by a low degree of institutionalisation of the situation in which the decision making occurs. As has been stressed in the theory section already, in case of the Mixed Court, the judges were not yet in a position to ‘enact’ a particular set of norms and procedural mechanism but just to ‘act’ in a situation where a conflict had to be regulated by its decisions.Footnote 92 This necessity of acting instead of enacting underlines the originality of the activities of the court.
Furthermore, these acts have been described as a case of a law-making activity; even though they did not develop into a path-dependent system.Footnote 93 This interpretation follows the perspective that decisions of a court are not only dedicated to regulate conflicts but also create a new body of law which consists of various normative elements.Footnote 94 Again, it does not seem important here to decide whether it was really law that had been created by the decisions. What is an important aspect is that the decision of the court in fact terminated the situation of normative plurality for a particular conflict.
Much of the pluralist work on norms is dedicated to the mechanisms of coordination and hybridisation of different forms of normativity. A more general observation of this study with regard to legal and political studies on normative plurality is that in this context judicial decision-making is a major object. Judicial decision-making is highly contingent and dynamic. While there is a substantial literature on the issue of judicial law-making, it seems that the particular implications of judicial activity in transcultural and multinormative settings is still undertheorised. Court decisions may serve as a means to end the situation of pluralism by integration. However, more research should be done on the particular determinants of decision making in transcultural and asymmetrical situations as well as on the requirements of formal and informal precedents and path-dependent differentiation and systematisation of a judicial field.
In short and as regards this case study, the reference to debates about legal pluralism and multinormativity has contributed to the understanding of the court as a case which cannot be explained by a reduction on its foreign or domestic elements. The judges had to act rather than to enact and this underlines the situational character of its decision making. These acts may be understood as a law-making activity or not; this has no influence on how the court has to be analysed as an institution of conflict regulation.
V. Conclusion
The article has presented a case study on the Shanghai Mixed Court, its emergence and practices of decision making. The case study has illustrated that a suitable research perspective needs to go beyond the usual dichotomies of the global and the local or the international and the national as well as the legal and the non-legal.
The Shanghai Mixed Court emerged out of foreign influences during the period of China’s unequal foreign relations in the nineteenth and twentieth century. At the same time, as a Chinese court it represents efforts to resist or delimit foreign influences. As local phenomenon the court embodies the special situation of the international settlement of Shanghai which brought about novel forms of self-government which were independent from governmental influences and in this sense are transnational. The article has shown that it is necessary to zoom in on all these different levels in order to understand all the aspects which characterise the court as an institution of conflict regulation in a particular social and historical context.
The decision making by the court was characterised by a huge flexibility of the judges, the use of a multiplicity of normative sources, and a lack of developing a systematic judicial regime. In the last section of the article, it was argued that this is not a case of legal pluralism, since the court represents both legal and non-legal elements, but rather a case of multinormativity in which the law and the legal do not form the major points of reference.
Even though the Shanghai Mixed Court formed a special case of extraterritoriality, as was shown above, it is not a singular case. Mixed courts also existed in nineteenth-century Egypt and these courts shared many features with the Mixed Court in Shanghai.Footnote 95 More generally, however, research on multinormativity is highly important in the context of studies which deal with the interaction and hybridisation of normative expectations in transcultural contexts. The perspective of multinormativity is therefore not only an extension of the legal pluralist approach, with regard to studies on the emergence of normativity without the state, but as well an important supplement for international relations studies on norm contestation.
Acknowledgements
This research has been presented at conferences and colloquia in Frankfurt, New Orleans and Seattle. I would like to thank Swethaa Ballakrishnen, Nicole Deitelhoff, Sara Dezalay, Thomas Duve, Bryant Garth, Matthias Koenig, Tobias Wille and Lisbeth Zimmermann as well as the members of the joint research colloquium of Christopher Daase and Nicole Deitelhoff at Goethe University for motivation, critical comments and helpful advice. I also thank the anonymous reviewers and the editors of this journal for the insightful review of my manuscript. This publication was supported by the DFG funded Cluster of Excellence ‘Normative Orders’ at Goethe University Frankfurt am Main.
