Rethinking the History and Theory of Jus Publicum Universal: The Formation of China as a “Semi-Civilized” Legal Subject

Abstract

Much of the existing scholarship on the universalization of nineteenth-century international law has framed it in terms of the imperial West’s domination of non-Western societies. This article complicates and qualifies this conventional state-centric narrative by investigating the juridical, capitalist production of China as a “semi-civilized” international legal subject. It examines the foundational modern Sino-British/Western commercial and extraterritorial treaties, as well as the treatises of a new professional class of British international lawyers—James Lorimer (1818–90), John Westlake (1828–1913), William Edward Hall (1835–94), T. E. Holland (1835–1926), Thomas Lawrence (1849–1920), and Lassa Oppenheim (1849–1920). The juridical production of China as a “semi-civilized” legal subject throws into relief the dual capitalist nature and significance of the universalization of nineteenth-century international law. On the one hand, this “civilized” legal discourse underwrote a novel liberal conception of a universal international law (jus publicum universal ) within which China was formally included as a quasi-legal subject. On the other hand, it also underwrote a particularistic, Euro-centric international law, which excluded China from its global domain and denied it basic sovereign rights. In this way also, “civilized” international law justified both formal equality in European– non-European treaty relations, as well as the real substantive inequality of these international exchanges of rights and obligations. Building on the critical theoretical work of Evgeny Pashukanis (1891–1937), this article argues that a non-orthodox Marxist social theory of legal forms is best suited to explain the abstract, liberal universalism of nineteenth-century “civilized” international law and the contradictory forms of legal and jurisprudential discourse it made available and rendered normatively meaningful to international law practitioners. Through this Marxist theory, moreover, I shall relate said contradictory discourse to modern commodity exchange practices.

Keywords

international law / civilization / legal subject / capitalism / liberal abstraction / Pashukanis

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2017 Higher Education Press and Brill