It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violen... more It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violence is continually represented as sexual violence. This Article applies the insights of queer theory to examine this rhetoric of sexual violation. More specifically, it analyzes the injury of colonialism as a kind of homoerotic violation of non-Western states’ (would-be) sovereignty. The Article does so by taking seriously the legal fiction of the state as an “international legal person.” Historically, colonial violence is routinely described as rape. What does it mean to liken a state to a person, and its conduct to rape? How does a state rape? Whom does it rape, and under what conditions? This Article examines international legal rhetoric to illustrate the normative masculinity that is attributed to sovereign states, and it argues that non-Western states’ variously deviant masculinities, together with their civilizational and racial attributes, rendered them rapable. The Article uses China as a case study. As a historically recognized yet “effete” civilization, throughout the nineteenth century China occupied an unstable intermediate position between the colonizable and the fully sovereign, savage and civilized, Africa and Europe. International law provided a vocabulary for transforming China’s alleged economic and political isolation into a violation of a “right of intercourse,” which in turn justified the establishment of a non-territorial form of imperialism that fell short of colonialism proper: the practice of extraterritorial jurisdiction. In the end, the queer rhetoric of international law did not simply reflect China’s inherent weakness; it helped make it internationally weak. In sum, the Article illustrates some of the general processes by which international law excludes and includes subjects. Sexual, gendered, and racial metaphors continue to structure uneven global relations even today. Queer enemies of mankind are not history.
Joining other recent efforts to enrich the study of comparative law, this article seeks to bring ... more Joining other recent efforts to enrich the study of comparative law, this article seeks to bring the field into conversation with the study of non-Western law, the growing body of postcolonial theory, as well as other recent work in legal theory. The article applies these theoretical frameworks to the historic claim by many Western observers that China lacks an indigenous tradition of "law." In these claims, sometimes the implicit yardstick for "real" law is formal legal rationality in the Weberian sense, while at other times it is a liberal legal order that constrains the state in a particular way - a configuration often referred to as "the rule of law."
Analyzing the history of Western understandings of Chinese law and their different historical meanings, the article shows how certain notions of the Chinese lack of legal subjectivity have proven surprisingly enduring. At the same time, the article seeks to show how these relatively stable stereotypes have performed different functions at different times: e.g., confirming the superiority of European civilization in the works of Hegel and Marx; justifying the exclusion of Chinese immigrants in the United States in the latter half of the nineteenth century; and providing a rationale for incorporating China into a neo-liberal global trading regime in the twenty-first century. In the process, the article traces a preliminary genealogy of "legal Orientalism," and explores also the broader questions of who gets to decide who has "law" and what the normative implications of its absence are. Ultimately, the article argues that law is a crucial element in the constitution of the modern (Western) subject and that, historically, ideas of the lack of Chinese legal subjectivity have served to mark the outside of (Euro-American) law.
In a larger sense, the article is a study of the processes by which claims of the putative absence of law in China have become part of the observers' cultural identity and, in turn, have contributed to the contents of the observations themselves. The focus of the article is thus on Western representations of Chinese law, rather than on Chinese law as it has been understood and practised in China. The article's ultimate goal is to understand how history has shaped the field of knowledge in which the comparative study of Chinese law unfolds today. After delineating a preliminary history of legal Orientalism, the article considers also the contemporary ethics of comparison in light of that history.
As it set forth to achieve rapid modernizing economic growth under the leadership of Deng Xiaopin... more As it set forth to achieve rapid modernizing economic growth under the leadership of Deng Xiaoping, the People's Republic simultaneously undertook to reform China's criminal justice system in order to make it more efficient, more accountable to central authority, and better suited to the task of maintaining public order in a changing economic and social environment. Taking a historical approach, this book draws on a wide variety of openly and internally published laws, legal interpretations, talks, speeches,Communist Party documents, collections of criminal cases and other sources ranging from the 1950s to the 1990s in order to portray the development of the Chinese criminal justice system between 1979 and 1985 and to place these changes in the context of the reform agenda of Deng's China. Particular attention is paid to the practice of criminal justice and the reform of prisoners, to the role of campaigns in the development of the Chinese criminal justice system, and to the relationship between crime trends, criminal justice, and modernization.
It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violen... more It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violence is continually represented as sexual violence. This Article applies the insights of queer theory to examine this rhetoric of sexual violation. More specifically, it analyzes the injury of colonialism as a kind of homoerotic violation of non-Western states’ (would-be) sovereignty. The Article does so by taking seriously the legal fiction of the state as an “international legal person.” Historically, colonial violence is routinely described as rape. What does it mean to liken a state to a person, and its conduct to rape? How does a state rape? Whom does it rape, and under what conditions? This Article examines international legal rhetoric to illustrate the normative masculinity that is attributed to sovereign states, and it argues that non-Western states’ variously deviant masculinities, together with their civilizational and racial attributes, rendered them rapable. The Article uses China as a case study. As a historically recognized yet “effete” civilization, throughout the nineteenth century China occupied an unstable intermediate position between the colonizable and the fully sovereign, savage and civilized, Africa and Europe. International law provided a vocabulary for transforming China’s alleged economic and political isolation into a violation of a “right of intercourse,” which in turn justified the establishment of a non-territorial form of imperialism that fell short of colonialism proper: the practice of extraterritorial jurisdiction. In the end, the queer rhetoric of international law did not simply reflect China’s inherent weakness; it helped make it internationally weak. In sum, the Article illustrates some of the general processes by which international law excludes and includes subjects. Sexual, gendered, and racial metaphors continue to structure uneven global relations even today. Queer enemies of mankind are not history.
Joining other recent efforts to enrich the study of comparative law, this article seeks to bring ... more Joining other recent efforts to enrich the study of comparative law, this article seeks to bring the field into conversation with the study of non-Western law, the growing body of postcolonial theory, as well as other recent work in legal theory. The article applies these theoretical frameworks to the historic claim by many Western observers that China lacks an indigenous tradition of "law." In these claims, sometimes the implicit yardstick for "real" law is formal legal rationality in the Weberian sense, while at other times it is a liberal legal order that constrains the state in a particular way - a configuration often referred to as "the rule of law."
Analyzing the history of Western understandings of Chinese law and their different historical meanings, the article shows how certain notions of the Chinese lack of legal subjectivity have proven surprisingly enduring. At the same time, the article seeks to show how these relatively stable stereotypes have performed different functions at different times: e.g., confirming the superiority of European civilization in the works of Hegel and Marx; justifying the exclusion of Chinese immigrants in the United States in the latter half of the nineteenth century; and providing a rationale for incorporating China into a neo-liberal global trading regime in the twenty-first century. In the process, the article traces a preliminary genealogy of "legal Orientalism," and explores also the broader questions of who gets to decide who has "law" and what the normative implications of its absence are. Ultimately, the article argues that law is a crucial element in the constitution of the modern (Western) subject and that, historically, ideas of the lack of Chinese legal subjectivity have served to mark the outside of (Euro-American) law.
In a larger sense, the article is a study of the processes by which claims of the putative absence of law in China have become part of the observers' cultural identity and, in turn, have contributed to the contents of the observations themselves. The focus of the article is thus on Western representations of Chinese law, rather than on Chinese law as it has been understood and practised in China. The article's ultimate goal is to understand how history has shaped the field of knowledge in which the comparative study of Chinese law unfolds today. After delineating a preliminary history of legal Orientalism, the article considers also the contemporary ethics of comparison in light of that history.
As it set forth to achieve rapid modernizing economic growth under the leadership of Deng Xiaopin... more As it set forth to achieve rapid modernizing economic growth under the leadership of Deng Xiaoping, the People's Republic simultaneously undertook to reform China's criminal justice system in order to make it more efficient, more accountable to central authority, and better suited to the task of maintaining public order in a changing economic and social environment. Taking a historical approach, this book draws on a wide variety of openly and internally published laws, legal interpretations, talks, speeches,Communist Party documents, collections of criminal cases and other sources ranging from the 1950s to the 1990s in order to portray the development of the Chinese criminal justice system between 1979 and 1985 and to place these changes in the context of the reform agenda of Deng's China. Particular attention is paid to the practice of criminal justice and the reform of prisoners, to the role of campaigns in the development of the Chinese criminal justice system, and to the relationship between crime trends, criminal justice, and modernization.
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Papers by Teemu Ruskola
Analyzing the history of Western understandings of Chinese law and their different historical meanings, the article shows how certain notions of the Chinese lack of legal subjectivity have proven surprisingly enduring. At the same time, the article seeks to show how these relatively stable stereotypes have performed different functions at different times: e.g., confirming the superiority of European civilization in the works of Hegel and Marx; justifying the exclusion of Chinese immigrants in the United States in the latter half of the nineteenth century; and providing a rationale for incorporating China into a neo-liberal global trading regime in the twenty-first century. In the process, the article traces a preliminary genealogy of "legal Orientalism," and explores also the broader questions of who gets to decide who has "law" and what the normative implications of its absence are. Ultimately, the article argues that law is a crucial element in the constitution of the modern (Western) subject and that, historically, ideas of the lack of Chinese legal subjectivity have served to mark the outside of (Euro-American) law.
In a larger sense, the article is a study of the processes by which claims of the putative absence of law in China have become part of the observers' cultural identity and, in turn, have contributed to the contents of the observations themselves. The focus of the article is thus on Western representations of Chinese law, rather than on Chinese law as it has been understood and practised in China. The article's ultimate goal is to understand how history has shaped the field of knowledge in which the comparative study of Chinese law unfolds today. After delineating a preliminary history of legal Orientalism, the article considers also the contemporary ethics of comparison in light of that history.
Books by Teemu Ruskola
Analyzing the history of Western understandings of Chinese law and their different historical meanings, the article shows how certain notions of the Chinese lack of legal subjectivity have proven surprisingly enduring. At the same time, the article seeks to show how these relatively stable stereotypes have performed different functions at different times: e.g., confirming the superiority of European civilization in the works of Hegel and Marx; justifying the exclusion of Chinese immigrants in the United States in the latter half of the nineteenth century; and providing a rationale for incorporating China into a neo-liberal global trading regime in the twenty-first century. In the process, the article traces a preliminary genealogy of "legal Orientalism," and explores also the broader questions of who gets to decide who has "law" and what the normative implications of its absence are. Ultimately, the article argues that law is a crucial element in the constitution of the modern (Western) subject and that, historically, ideas of the lack of Chinese legal subjectivity have served to mark the outside of (Euro-American) law.
In a larger sense, the article is a study of the processes by which claims of the putative absence of law in China have become part of the observers' cultural identity and, in turn, have contributed to the contents of the observations themselves. The focus of the article is thus on Western representations of Chinese law, rather than on Chinese law as it has been understood and practised in China. The article's ultimate goal is to understand how history has shaped the field of knowledge in which the comparative study of Chinese law unfolds today. After delineating a preliminary history of legal Orientalism, the article considers also the contemporary ethics of comparison in light of that history.