Moraitis, ‘Extraterritorial law as a colonial structure’, RHPWP 2 (2023)

Yorgos Moraitis, ‘Extraterritorial law as a colonial structure: Sir Robert Hart and his independence from British legal authorities in China (1870-1873)’ Robert Hart Project Working Papers, no. 2 (2023), pp 1-32.

ISSN: 2514-9296

Full text: Moraitis, ‘Extraterritoriality as a colonial structure’, RHPWP 2 (2023)

This paper examines the use of English law in British extraterritorial courts in China, drawing on the well-noted Von Gumpach v Hart (1870) case. The argument put forth is that the application of English law in this context was shaped by the quasi-colonial circumstances of extraterritoriality in China’s treaty ports, and that it largely adapted to the social and political realities of this colonial setting. The paper contends that extraterritorial law can only be fully understood as a colonial phenomenon, reflecting a colonial worldview and power dynamics. In the particular case of Von Gumpach v Hart, the operation of extraterritorial law was influenced by the political and economic interests of British colonial elites in Shanghai, as well as by colonial assumptions, discourses, and value systems.

Τhe paper draws on local newspaper reports of the case, legal documents and untapped sources such as the diaries of the defendant, Sir Robert Hart. During the relevant period, Hart served as the Inspector General of the Chinese governmental tax-collection agency, but also functioned as an advisor to the Qing government of China in foreign affairs. Hart’s dispute with von Gumpach unfolded during a period that his role Sino-British relations had come under scrutiny by the British community in China. The paper shows that the British political and commercial elites in China used the controversy as an opportunity to voice their concerns over Hart’s growing influence in Sino-British politics.

Chinese Imperial Maritime Customs, Comparative law, English law, Extraterritoriality, Sir Robert Hart, Hart’s diaries