Colonialism Without Colonies: On the Extraterritorial Jurisprudence of the U.S. Court for China
Emory University School of Law
October 27, 2008
Emory Public Law Research Paper No. 09-67
The United States Court for China was created by Congress in 1906, and it was not abolished until 1943. The Shanghai-based court had extraterritorial jurisdiction over all American citizens within its district, known as the “District of China” for jurisdictional purposes. The court is fascinating in its own right, and it produced what one observer has described as a “system of jurisprudence” that was “more complete than that of any [other] body of extraterritorial law.” In this article, I elaborate at some length on the court’s jurisprudence, with a focus on certain conflicts-of-law problems the court had to face. As it turns out, those problems and the context in which they arose open a window onto the colonial history of extraterritorial jurisdiction more generally. In the end, the history of the U.S. Court for China exemplifies a kind of colonialism without colonies.
Part I describes in some detail the law applied by the court, which consisted of a mélange of 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. Apart from the unusual jurisprudence the court produced, the court’s jurisdiction itself seems extraordinary, given the conventional wisdom that the principle of territorial sovereignty was predominant at the time. Part II places the court and its practice of extraterritorial jurisdiction within a longer global genealogy. Despite the contemporary rhetoric of globalization and its claims about the relatively stronger tendency for the extraterritorial application of national laws today, extraterritorial jurisdiction was in fact the norm for much of the extra-European world through the nineteenth century. Ultimately, the unique, and seemingly arbitrary, jurisprudence the court produced was intimately connected with the extraterritorial nature of its jurisdiction. Part III suggests that the conflicts of law faced by the U.S. Court for China proved exceedingly difficult to resolve precisely because of the legal fiction of extraterritoriality upon which the court’s jurisdiction rested. As part of its mandate in applying the laws of the United States, the court was required to treat China as if it were the United States. Yet the principle of territoriality that performed a key role in resolving conflicts within the federal system in the United States simply could not do the same in China for the profoundly simple reason that, in the end, legal fictions aside, China was not America. Unsurprisingly, the end result was an imperial court that was left to fashion its own law, which in turn was distinct from that of every other territorial jurisdiction. Indeed, it constituted a kind of American common law of China, and the legal world of Americans in China constituted a kind of U.S. colony, albeit one that did not formally infringe on China’s territorial sovereignty.
Number of Pages in PDF File: 27Accepted Paper Series
Date posted: December 1, 2009
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