It has been a long-standing assertion that while “traditional” China developed legal codes, Chinese legal practice was mired in a premodern world in which the rule of men trumped the rule of law. This credo provided the basic foundation upon which Oriental despotism was constructed by several generations of “Western” observers of China. And while postwar historians have shied away from the use of the term “despotism,” their comparative approach has still tended to construct China and other parts of the “Orient” as missing essential elements that were understood to be present in a fully formed social, political, and economic model of modern development. This Eurocentric history-by-absence is the target of Teemu Ruskola's new book. Ruskola is not the first historian to make the observation that China has been frequently interpreted as a less than fully formed example of proper historical development, and that such interpretation is in itself a form of “Orientalism.” But he is among the first to bring this interpretative sensibility into the study of law and Sino-American relations between the Opium Wars and World War II.

Building upon the work of Antony Angie and a group of critical scholars of international law and East Asia (Douglas Howland, for example), Ruskola engages both legal discourse in China and the United States and a wealth of primary and secondary sources on Sino-Western relations since the eighteenth century. Ruskola defines legal Orientalism as “interlocking narratives about what is and is not law, and who are and who are not its proper subjects” (p. 5). He argues that these narratives have enjoyed global circulation, privileging the common, corporate, and “international law” of North Atlantic nation-states over those of others. Africa and Asia have been considered “lawless” until integrated into the “Western” scheme.

With a focus on China and the United States, Ruskola's strategy for critiquing legal Orientalism is what might be called a double deconstruction. For example, after noting that in the Orientalist story, Chinese law is overwhelmed by kinship, he finds embedded in entities like family or clan trusts elements very similar to those found in American and European business corporations. This interpretation is not designed to claim some sort of identity that would reduce the complexities of difference on either side, but to narrow the gap—to argue that Chinese family trusts and Euro-American corporations exist on a continuum, rather than as polar opposites. On the American side, Ruskola finds a consistent pattern from the 1840s forward to construct relations with China as extra-legal exceptions to what was otherwise understood in the United States as appropriate legal jurisdictions. These exceptions begin with American extraterritoriality in China in the 1840s and continue with the Chinese exclusion laws in the 1880s. In the latter case, the exception was the Supreme Court decision that upheld the 1882 Chinese exclusion act, thus negating the free migration article of the 1868 Burlingame Treaty between the Qing empire and the United States. The logic of the court involved plenary powers of sovereignty that were seen to exist over and above constitutional law and have formed the basis of administrative law since the nineteenth century. Ruskola's other example is the very peculiar institution of the U.S. Court for China at Shanghai, whose precedents were made up of the undemocratic codes that governed the territory of Alaska and continue to “govern” the District of Columbia. The court's judges made their own law with little if any judicial or legislative oversight from Washington.

Throughout the work, Ruskola argues that legal Orientalism produced precisely what it was designed to avoid, a despotic legal system. He also shows how American precedents were picked up by other countries, including Great Britain, and organized into their own relations with China. He also indicates the ways in which narratives of legal Orientalism helped to shape the legal system of post-imperial China and the construction of “traditional” China in postwar American sinology. In the case of law, Ruskola argues persuasively for the colonization of China “without colonizers,” pointing specifically to the acceptance by the People's Republic of China of both “international law” and legal norms, and the global hegemony of institutions like the World Trade Organization.

In the final pages of this provocative book, Ruskola asks readers to consider the deep imbrication of legal Orientalism with the development of national and international law, and with the way Chinese and Americans have understood each other since the 1840s. In arguing that this history continues to inform the present, producing both the extralegal and exceptionalist maneuverings of the War on Terror and the dynamic changes of the legal order in reform era China, Ruskola challenges not simply the conventional narratives of sinology, but the global legal order produced by Euro-American imperial expansion in the nineteenth century.