Teemu Ruskola

Conceptualizing Corporations and Kinship: Comparative Law and Development Theory in a Chinese Perspective

This article places Chinas recent Company Law in a broader historical and cultural perspective. Noting that the Company Law consists of transplanted Western corporation law, the article argues that, in a new cultural context, even the most basic provisions of transplanted law are liable to be interpreted in new and unexpected ways. To provide an informed understanding of that context, the article begins by analyzing Chinas indigenous tradition of corporation law. Challenging the conventional wisdom that late imperial China had no entities analogous to the Western business corporation, the article argues that traditional Chinese family law performed many of the functions that modern American corporation law performs today. Bringing together recent scholarship in Chinese kinship anthropology and Chinese legal history, the article outlines the historical development of Chinese clan corporations. Entrepreneurs wishing to overcome official Confucian hostility to profit-seeking utilized the legal form of the so-called ancestral trust to pool property for investment-ostensibly in order to provide for ancestral sacrifices, but in practice to create professionally managed commercial enterprises. The article illustrates the various ways in which these clan corporations engaged in creative contracting to construct business entities that indeed formally corresponded to the idealized Confucian family defined by patrilineal kinship. The article also shows how twentieth-century attempts to transplant Western corporation law have achieved limited success, while the family itself has continued to maintain a distinctive legal status, and the Chinese have continued to take advantage of that status in organizing their businesses. Next, the article contrasts the traditional Chinese view of the corporation as a kinship group with the contract-based view of recent American corporate jurisprudence. Although the two views offer diametrically opposed justifications for a similar business entity, the Chinese and American traditions are in fact functionally much closer than they first appear to be. The article concludes by speculating on the jurisprudential significance of this fact and its implications for policy-makers engaged in development. Despite their surface similarities, Chinese and Western corporation law are unlikely to converge in a meaningful way so long as their legal, political, and discursive interpretations remain informed by distinct local understandings of the nature and purpose of corporations.

Gay Rights Versus Queer Theory: What is Left of Sodomy after Lawrence V. Texas?

In 1986, the United States Supreme Court affirmed the constitutionality of a Georgia statute under which Michael Hardwick had been charged with committing sodomy in his home with another male. The majority opinion in Bowers v. Hardwick formulated its task in the following blunt terms: to determine whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. The answer to that question could of course only be negative. Less than twenty years later, in Lawrence v. Texas the Court endorsed passionately homosexual intimacies and overruled Hardwick. What made this stunning judicial volte-face possible? It is a commonplace of legal advocacy that the framing of a question always already anticipates its answer. In Lawrence, the court effectively changed the question in its framing of the issue: The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. That is, the question was not one of sodomy but of intimacy - of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue. This essay argues that Hardwick nevertheless got the constitutional question right (with some qualifications), even though the Courts answer to the question was obviously disastrously wrong. Admittedly, having been labeled as sodomites under the constitutional regime crowned by Hardwick, it is difficult to resist the Lawrence Courts interpellation of homosexuals as law-abiding subjects who are capable of intimacy and are entitled to respect for their private lives in the name of their dignity as free persons. But the respect and dignity offered by the Court will likely not come free. They will have to be earned, by leading respectable sex lives. The essay first examines the rhetorical and political conditions attached to Lawrences offer of gay respectability and then turns to Bowers v. Hardwick and the possibility of redeeming its focus on sodomy. In a larger evaluation of the post-Hardwick landscape, it asks whether we have been liberated by the fall of anti-sodomy legislation. And if so, to what? From the perspective of queer theory, how should we view this victory for gay rights?

Canton is Not Boston: The Invention of American Imperial Sovereignty

What is AmericaÕs place in the history of international law, and what is ChinaÕs? From the beginning, international law was premised on the exclusion of those outside of Europe, first on the basis of religious, then cultural, difference. In declaring its independence in 1776, the United States overthrew its colonial yoke and insisted on political parity with the sovereign states of Europe. Yet it remained an open question how the young nation would organize its political relations with the extra-European world. The United States rejected (ostensibly) all forms of territorial imperialism, and it appeared during the first decades of the nineteenth century that it would in fact treat ÒOrientalÓ states as sovereign equals. However, in its first treaty with ChinaÑa Treaty of Peace, Amity and Commerce, signed in 1844Ñthe United States obtained the right of extraterritorial jurisdiction in China. For the next century, Americans in China were subject only to the laws of the United States, each U.S. citizen becoming effectively a floating island of American sovereignty in the middle of the Chinese empire. Ultimately, the expectation of ÒextraterritorialityÓ in dealings with states of the Asia-Pacific region became a hallmark of American-style non-territorial imperialism through the beginning of the twentieth century. To explain the ideological transformation in American diplomacy from an assumption of equality among states to an Orientalist expectation of extraterritorial privileges for American citizens among ÒuncivilizedÓ peoples, this essay first considers AmericaÕs place in the global expansion of (Western) international law and then analyzes how the United States re-configured its legal relationship to Europe and the rest of the world in the post-Revolutionary era. After a short account of AmericaÕs early trade relations with China, Ruskola analyzes the conventional narrative about BritainÕs aggressive role in opening China for free trade in the Opium War, and then contrasts it with the received wisdom about AmericaÕs Òspecial relationshipÓ with China. Questioning the latter view, the essay suggests that the 1844 Treaty of Wanghia was a constitutive moment in U.S. political relations with Asia. By re-narrating the early history of American foreign relations, the main author of the treaty, Caleb Cushing, invented a historically unfounded but politically potent form of American imperial sovereignty, which became dominant in the Pacific in the second half of the nineteenth century. Moreover, this practice of American imperial sovereignty became a model for various European imperial nations that entered into their own extraterritoriality treaties in the following years, thus signaling AmericaÕs rise to the status of imperial state in its own right. Finally, the essay turns to the Chinese Exclusion Laws in the United States, to analyze how the differential construction of sovereignties operated on this side of the Pacific. Remarkably, the law of nations was seen to give Americans both the right to ÒopenÓ China for the entry of Americans and the right to exclude Chinese from the United States.

The East Asian Legal Tradition

This essay is a chapter in the Cambridge Companion to Comparative Law. It provides a brief description of an East Asian legal tradition – namely, what I call the classical legal tradition of East Asia, or by way of analogy, a kind of East Asian ius gentium. Although it is a historically significant tradition, by no means does it exhaust the entire East Asian legal universe. The essay intentionally focuses only on the central and shared aspects of that tradition. Yet the very notion of an East Asian legal tradition itself requires further methodological observations. First, just what does the term ‘East Asia’ encompass? Second, what do we mean by a ‘legal tradition’? The answer to neither question is obvious. After addressing these preliminary considerations, the essay turns to developing the broad outlines of a classical East Asian legal tradition.

Corporation Law in Late Imperial China

According to received wisdom, there is no such thing as a Chinese tradition of corporation law. In Max Weber’s pithy conclusion, “The legal forms and societal foundations for capitalist enterprise were absent in traditional China.” Although this claim is intuitively appealing, it is incorrect, or at least wildly exaggerated. Drawing on earlier work, I argue in this chapter that in late imperial China there existed a tradition of “corporation law,” to use a term that admittedly sounds anachronistic. Conventional wisdom to the contrary notwithstanding, and despite Confucian hostility to commerce, even before the introduction of European law at the turn of the century, the Chinese operated “clan corporations,” or relatively large commercial enterprises whose existence was justified by the legal fiction of kinship. Because of this fiction, these enterprises were governed by the norms of family law which in turn performed many of the key functions of corporation law.