Reading Colonies-Property and Control of the British Far East 9789629375324, 9789629372972

Citation preview

Reading Colonies

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Reading Colonies

Property and Control of the British Far East

R.B.E. Price

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©2016 City University of Hong Kong All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, Internet or otherwise, without the prior written permission of the City University of Hong Kong Press. ISBN: 978-962-937-297-2 Published by City University of Hong Kong Press Tat Chee Avenue Kowloon, Hong Kong Website: www.cityu.edu.hk/upress E-mail: [email protected] Author image: Phillip Mules Printed in Hong Kong

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Contents in Brief

Acknowledgements

xi

Foreword

xiii

Preface

xvii

Chapter 1 The Limits of Theory

1

Chapter 2 Reading Colonies via Property Policy

45

Chapter 3 Judicial Autonomy and Post-War Rent Control

75

Chapter 4 Property as Anti-Nationalism or Failing Geopolitics

113

Chapter 5 Reading Capital, Reading Colonies

149

Chapter 6 Codas

175

Endnotes

189

References

201

Index

211

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Contents in Detail

Acknowledgements

xi

Foreword

xiii

Preface

xvii

Chapter 1 The Limits of Theory

1

Introduction

1

Althusser, Historical Progress, and Modernity

7

The Race Question in Far East Asia

19

The China Exception

31

Divide and Survive: The Example of the Chiens The Dilution of Shanghai Culture and Civilization: Credit Where Due Conclusion Chapter 2 Reading Colonies via Property Policy

34 36 38 41 45

Introduction

45

The Theory and its Critics

47

Particular Property Techniques

59

Rent Control Abolition of Residential Segregation

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63 65

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Commercial and Land Improvement Opportunities Offering a Choice of Law Rearguard Measures Conclusion Chapter 3 Judicial Autonomy and Post-War Rent Control

67 69 70 71

75

Introduction

75

Hong Kong: Tenants 3, Landlords 2

78

Re On Lok Co/Shui Hing Co Ching Sum Co Lee Gwok Ying

84 86 88

Rent Judges in a Colonial Constitution Ceylon Madras Singapore Burma Conclusion Chapter 4 Property as Anti-Nationalism or Failing Geopolitics

92 93 97 99 101 104

113

Introduction

113

Carry on Weihaiwei, Hong Kong

121

Controlling Hong Kong

125

KMT Property Acquisition and the Companies Ordinance Returning the Banks to Mother China Speculation and Nationalism

126 129 130

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Contents in Detail

Controlling Weihaiwei Freehold Titles and Political Power The Richards Case The New Government and the Old Convention

133 134 137 139

Postscript: the British and the KMT after the Civil War

141

Conclusion

144

Chapter 5 Reading Capital, Reading Colonies

149

Introduction

149

Reading Capital

154

Reading Colonies

158

Controlling Nationalist Land Investment The Death of Residential Apartheid Constructing Landed Citizens

163 164 167

Conclusion

170

Chapter 6 Codas

175

Introduction

175

Summary of Findings

175

Implications

178

Writing History to a Theory Last Thoughts

179 187

Endnotes

189

References

201

Index

211

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Acknowledgements

Reading Colonies is the culmination of several years of research in archives. I have received much assistance from the staff of the Public Records Office of Hong Kong and the Municipal Archives in Weihaiwei. This book has also relied on colleagues in the Southern Cross University School of Law and Justice who, without a particular interest in the subject matter, have taken the time to read a draft. Thanks to Yvette Holt and Angela Jones on this score. Always with good cheer, Angela, as well as SCU teaching scholar, Helen Walsh, have shouldered some of my administrative responsibilities to free up time to work on the manuscript. I am blessed to have such grand colleagues. I would also like to put on the record the support and encouragement of Professor William MacNeil (Dean, Law and Justice) and Dr Alessandro Pelizzon. Both have been open to discussions about Althusser. This is an exceedingly rare quality to encounter in an Australian law school. Professor Guobin Zhu, long-time friend and collaborator in the City University of Hong Kong School of Law, has also been inspirational and constructive about my writing this book. Professor Bee Chen Goh, my research supervisor in the School of Law and Justice at SCU, has offered me the trustful latitude needed to accomplish publication of an academic monograph, as has Professor

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Geraldine Mackenzie (Deputy Vice Chancellor, (Research) SCU). My editor Joanna Pierce at City University of Hong Kong Press has ushered the book into publication with patience and thoughtfulness. Warren Ganesh, Senior Consultant at Smyth & Co, Hong Kong, shared his inestimable Hong Kong case knowledge to the advantage of this project, and I thank him too. My wife Tameeka Stewart has been a stalwart of my publishing efforts over the years and special thanks go to her. Finally, I address the anonymous reviewers of my PhD and this work. I doubt I will ever assuage the pessimism of two of you, or deserve the generous praise of the other two. I go forth happy in the knowledge I tried my best. The book has gone from being an ambition to a finished article in no small part because of the time you took to critically address its earlier incarnations.

Rohan Price School of Law and Justice Southern Cross University 23 November 2016

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Foreword

Rohan Price’s Reading Colonies—Property and Control of the British Far East is a rich journey through the labyrinthine worlds of the nineteenth and early twentieth-century British Far East, of Chinese exceptionalism, decolonization, the politics of race, and the Eurocentricity of Marxist thinking. These intellectual worlds are not my especial areas of expertise, yet I embarked on this adventure with confidence and enthusiasm, guided by Price’s engaging prose, and a unifying theme that I did have some knowledge of: the Anglo common law of property, and its adaptations to the intricacies and nuances of Britain’s Far Eastern colonies and concessions. What is beguiling yet so satisfying about Reading Colonies is its invocation of a disappeared time and place. This book presents a rare opportunity to immerse oneself in faraway legal geographies, to spatio-temporal contexts where time is distant, yet space is somehow comfortably proximate. Like Sarah Keenan’s explanation of the diaspora in Subversive Property (Routledge, 2015), the removed place one inhabits in reading this book is a marvellously erudite and colourful locale, detached in its history, yet accessible in its geography. In its linear way, the common law of property law is the tool that

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takes the reader from then to now. Price’s deep and historical understanding of property, the politics of property, and its place in what was the British Far East, keeps this diverse and complex construct together. It informs the contours of a narrative that is important for scholars to tell. Central to this book is the argument that “law, in the form of property policy, kept colonial administrations … in charge by alternately deflecting bourgeois and subaltern nationalism at points when their claims seemed to presage decolonization”. In particular, Price identifies and evidentially cites the British use of rent control as pivotal, a tenurial device he terms a “dialectical inhibitor”. By freezing rent and guaranteeing low-cost, longterm tenures, “colonial administrations of the East offered an interpellating invitation to citizens to constitute themselves as statutory tenants in order to stave off the appeal of communist political positions and prod bourgeois nationalist exponents into muted positions on the timing of decolonization”. With enormous attention to historic, theoretical, and political detail, Price portrays property as a bulwark of colonial control, a pragmatic institution that was exploited skillfully. It is this feature; the setting of common law property in its colonial milieu, a captivating and exotic blend of time and place, that makes this book (from my myopic propertied lens at least) such a compelling and important contribution to the literature. In closing, I note that Rohan and I are colleagues at the School of Law and Justice at Southern Cross University. We share the everyday landscape of faculty. Away from that everyday, my foray into Reading Colonies—Property and Control of the British Far East provided a glimpse into

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another scholarly landscape, one we share through common membership. This book presents a comprehensive, at times nostalgic, yet above all insightful perspective, a window into the British Far East. I am delighted to pen these introductory remarks to my colleague’s fine work, and trust that you will enjoy the journey ahead.

John Page Associate Professor School of Law and Justice Southern Cross University 12 December 2016

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Preface

The genesis of this book was in a series of conversations I had at Shandong University (Weihai) with Professor Jiang Ming of the law school there. An eminent sociologist, and the son of a re-educated Kuomintang railway man, he expounded on a remarkable idea. In breaks between table-tennis rallies, he demonstrated that China would have made it to modernity without Western help. The Kuomintang government would have cleaned up its notorious corruption. The bounties of imperial examination, customs duty, and tribute would have been pluralized. Less well-known veins of Confucianism would have been politically deployed to describe a harmonious relationship of the state to its citizens through respect for intellectuals, including scientists. Fiscally disciplined and developmental in outlook, modern China would have been born. Unless for its internecine squabbling, modern China — fiscally disciplined and developmental in outlook — would trace its birth to 1912 and see its infancy over the 1930s. And all without industrialization. Jiang’s view was speculative in a vein that Marxists truly hate. But it did not quite feel like “what if” history. He maintained that China had been steadily gathering the ingredients for a great prudential republic even after the West intervened in its affairs decisively to make it dependent on

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opium in 1841. It would not be a democracy in the Westminster vein or especially controlled by an aggressively accumulative industrial base in the vein of, say, the Teutonic type. It would be a republic of railways and filial workshops, with a central government radiating its civic spokes outwards to secure, with reason, conflicting impulses of ethnicity and religion in a fixed orbit around the Nanjing metropole. By building flood levies and rolling out telegraph lines, it would earn a reputation for measured benevolence. The ascent of Sun Yat-sen to the provisional presidency in 1912 augured many of these things. He was a Christian, a man of science, who was devoted to the overthrow of the feudal imperial family and the modernization of government by opening up political opportunity. Postcolonial historians have a couple of options in how they view the Far Eastern past. Needless to say, the self-governing Chinese republic of railways is not prominent among them. Neither has China been seen as a tightly contested semi-colonial space. Best aligned to the tenor of this work, has been the new retrospective school led by Chibber which has questioned why industrialization failed in India compared to other places in North East Asia and answered it by pointing to discord between objectives of state developmentalists and local capitalists. The radical positivist school led by Stoler contains no developmental argument. It has subjectively viewed the colonial world as a loose collection of inferior places with colonial rulers given to administrative anxiety about indigenous nationalism and interracialism. These were to be negated with bouts of racist violence, frogmarching or co-option, if that seemed to work better. To the old structural school, overseen by the likes of Hobsbawm,

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colonies were extrusions of bottled up European capital. They were merely supplicant syndications of British nationalism. Enriching the metropole via involuntary consumer trade, or slave labour for manufacturing, colonies were garrisoned replications of mother country social class whether under palm or pine. Colonies progressed their development agendas according to metropolitan, not local, needs. I rate the irrational powers of race and nation quite a bit ahead of social class as the fundamental colonial problem. Yet members of the Stoler school would be unlikely to mistake me as one of them. Members of Hobsbawm’s crew will regard me as thoroughly letting the team down. Why, then, do I subscribe to none of these schools? Common to each of these accounts has been an unexamined assumption that the European capitalist industrial system was superior in technique and capability to local modes of production out East, especially by the nineteenth century. It produced more guns, bigger bribes, more miles of rail line, deeper mines, and longer payrolls than the benighted territories of the East could ever dream about. The economic incumbency of precolonial modes of production was not, however, so easily defeated. At least one person noticed at the time. Kevin Anderson recalled how Marx steadily floated across from a belief in the regenerative qualities of British colonialism out East to one of anti-colonialism and recognition of Asian modes of production most apparent in his Grundrisse writings of 1858–9.1 Accepting that colonies were sites of mercantilist, landlordist, and pre-industrialized manufacturing resistance, the history

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of East Asia can find its true terrain. There was a stalemate in the clash of civilizations. The story of the colonial world was a matter of extractive British colonists holding on for as long as possible. It was not one of them triumphantly demolishing local modes of production that had reached their use-by date. The political and legal techniques used by British colonial governments to delay decolonization can only be a fertile empirical field of inquiry on an understanding that historical actors can and do act in implicit knowledge of dialectical materialism, and try through individual and collective agency to subvert it. Since Said’s landmark Orientalism in 1978, whether the West ingrained the East or the East adapted the West has been contested by a host of postcolonial theorists. Some, such as Chibber have entertained the reinstatement of historical materialism as a tenable reading of Asian history.2 Inadvertently or otherwise, this brings up old wounds. It is about Westerners saying they know best when describing their imperial expansion into Asia through the philosophical lens of the Enlightenment. As Goldstein noted, even if one tries to deconstruct or pluralize modernity, one is left nevertheless with a sense that there is an original form of it and all others are copies.3 Althusser’s normative position on colonialism was one most people on the Left agree on to this day. Formative in his thinking was Marx and the First International (1864). He recognized the “decisive political importance” of “tendential expansion of capitalist relations of production throughout the world” via imperialism.4 His position also derived from the conclusion of

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the Fifth International Socialist Congress (1900) which met in Paris at the conclusion of the Second Boer War to resolve that: Que le développement du capitalisme mène fatalement à l’expansion coloniale que la politique coloniale  …  : de la bourgeoise n’a d’autre but que d’élargir les profits de la class capitaliste et le maintien du système capitaliste.5 *

Althusser, as most on the Left, considered it toujours la même that capitalist class greed had come to be satisfied through bourgeois appropriation of foreign lands and the legacy remains alive and well. He was also aware of how the spread of capitalist relations of production continued to occur through “indirect colonial exploitation without military occupation, neo-colonialism”.6 Indeed in the case of the British, throughout the 1950s and 1960s, significant trading relationships existed between the old colonial power and her former Eastern colonies.7 In the mid-1970s their direct investment in India, Pakistan, and Malaysia eclipsed that of the U.S. and Japan and they had retained comparable levels of investment in Hong Kong and Singapore to those of their post-war allies.8 The expansion of capitalism in former colonies has been a preoccupation of all the old European colonial powers. In many former colonies the only real option for the mode of production has been more of the same long after the

* The development of capitalism leads inevitably to colonial expansion, the colonial policy ... of the bourgeoisie has no other purpose than to widen the profits of the capitalist class and the maintenance of the capitalist system.

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colonials have notionally packed up and gone home. The vast tea estates of Ceylon, for instance, passed from English into Sinhalese control in the 1950s, but twelve-year-old female Tamil tea pickers had the same relation to the estate owners as they had always had.9 Many countries had thrown off their colonial puppeteer by the early 1960s. Yet the marionnettiste role continued on much the same as always albeit under new management. Someone acceptable had to stand in the wings and hold the strings of capitalist relations of production. This book is concerned with history, but I write of history that bedevils us to this day. Althusser, like most Marxists, took dialectical materialism as an article of faith. In recent years the science of history has returned to the forefront of Marxist debate. Vivek Chibber attacked a tendency in subaltern studies to claim that colonial capitalism had not dismantled the structures of pre-existing feudalism in India, but rather the grammar and structure of indigenous power relationships caused the West to abandon capitalism’s “universalising mission”.10 He further observed an argument commonly made in subaltern circles that Eastern societies were on such a different developmental arc that importing Western notions of dialectical progress was an exercise in futility, and in particular, the rise of an Indian bourgeoisie to the mantle of postcolonial power was the product of uniquely Indian forces and circumstances.11 In disavowing such arguments, Chibber contends that the ascent of the bourgeoisie culminating in an independent India, in its institutional arrangements and political cleavages, owed much to thought lineages supplied by the French Revolution and the English Civil War. Although I am no subaltern, I argue

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that Chinese exceptionalism seriously challenged a European notion that historical progress can be gauged by incidents of bourgeois revolution. The pivotal colonial ruction in China was the First Anglo-Sino War concluded by treaty in 1842. It might be regarded as an example of Rosa Luxemburg’s thesis that colonialism was a system of forced trade produced by consumptive limits in home markets. But the Anglo-Sino wars did not confirm the place of a rising Chinese bourgeoisie or see them produce constitutional modernism as an approximation of the historical precedents of Europe. That kind of rise only occurred in China in years 1900–1912. Leader of the first republic, Sun Yat-sen, was anti-West in outlook. Although he believed in the early years of his rule to come out and say so would be “inopportune”,12 by the time of the Kuomintang Manifesto of 1924 he was quite prepared to say that the misfortunes of China were due to imperialism and call for a working class revolution to sweep foreign forces away.13 Sun knew that Chinese nationalism as anti-foreignism and national humiliation was smart politics even if the economic impact of imperialism in China was slightly felt. The real story: there was a strict market segregation of capitalist and Chinese modes of production in quasi-colonial China. This détente of separate, isolated, productive successes became reflected in concessional legal and state forms to hold Chinese nationalism at bay. Such forms came to express a necessary hybridity at the highest echelons of colonial authority. The détente meant the colonial governments in their Far Eastern spheres of influence were compelled to concede that capitalism based on racism and entirely extractive motives did not work well economically or administratively.

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Chinese racism in the form of revolutionary nationalism had to be countered very specifically through colonial property distribution policies for control of the Eastern possessions to be maintained. Particular attention had to be paid by colonial governments in the East that antithetical political elements were not permitted to game distributive institutional mechanisms designed to reward constructivism as a substitute for political independence of local Chinese colonial elites. My study of the late colonial Far East pursues two arguments: (1) a dialectical one that seeks to re-evaluate the level of civilization and economic sophistication encountered by British traders and administrators in China and (2) an interpretive one to do with why the balances of race, class, and indigenous nationalism were sufficiently similar across the Eastern colonial possessions to allow a policy such as rent control to assume a signal importance in decoding the colonial world. Rent control was a giant subaltern pay-off to insure that the hybridity of institutional arrangements causing colonial social ordering became fixed in form. It also neutered the claim of bourgeois Chinese nationalism that it stood for a truly national interest. British colonial governments were dialectic busters hell-bent on maintaining a concessional empire kept afloat by a yin-yang mix of frustrations and inducements of those people who had ears for “China stands heroically in the universe”, and other songs of decolonization. The British colonial governments of the Far East found supplying the resources needed to top up and perpetuate their hybrid rule of the Eastern empire too onerous in the end. The role of colonial property policy in the timing of decolonization

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and handover to a compradorial class lay at the heart of this study. But I do not seek to paint a neat picture at the expense of a plausible account. I accept that the tripartite constitutional experiment in colonial Shanghai left the British disempowered and unable to convincingly impress their prescriptions to counter nationalist elements as they were able to elsewhere out East (chapter 2). I also note that British rent control measures in post-war Ceylon and Burma did not slow their nationalist movements via hegemonic hybridism as my dialectic-busting argument foreshadows (chapter 3). Nevertheless I maintain that, although British colonial governments aimed unsuccessfully at enduring control in their Eastern possessions, it speaks volumes of their methods that they attempted to establish socially placating regimes when they were there, and a legacy for controlling rent after they left. The story presented here has a postcolonial dimension too. The assertion by Westminster of treaty rights of non-interference to protect private property of British residents of Weihaiwei after the mother country quit the colony in 1930 was such a case. Not only was it an expression of a rueful postcolonial sovereignty, but one of the British colonial project being swamped by the very forces it had tried to keep at heel with a mixture of benevolent protectionism and empty threats. After relinquishing Weihaiwei in 1930 to the acceptable representatives of Chinese nationalism, and then observing the old colony falling under Japanese administrative authoritarianism, the Colonial Office — flailing and sidelined — finally recognized in 1941 that the forces of nationalism it had struggled to keep at bay had been victorious in the dialectical arm-wrestle over China (chapter 4). My revelation of anti-foreign land purchase policies in Hong

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Kong of the 1920s are explained as one of the more successful British efforts at hybridity-seeking ingratiation with local Chinese to keep the colony under British control until 1997 (chapter 5). Along with intentions, I am interested in colonial histories of dreadfully measured felicity. I have no undue optimism or exonerating purpose at heart. Rather, I am driven to find the correlation between decolonization and a salvageable conception of historical materialism from the Marxist philosophical tradition. Its foremost concepts were the dialectical clash between modes of production being the driver of history and the mediation of the economic base and the political superstructure by relatively autonomous methods of governance. I extract relative autonomy of law from its place between the base and superstructure where it was thought to float in a black box marked “ultimately pro-capitalism”. In there, it pivoted between health and safety-style legislation and banning the right to strike depending on the final, but often disguised, requirements of capitalism’s survival.14 I distinguish between Western Europeanstyle relative autonomy and intentional and interventionist colonial government policy, applied top-down, to frustrate dialectical conflict between colonial agents and indigenous nationalists by opportunistic modification to social relations of production. My idea of autonomy is a pendulum swing, to be sure, but not a mysterious or obfuscating or misdirecting one. When a wide discrepancy is detected between doctrinal expectancy and colonial reality, let it be said. Let doctrine be tightened up but not infinitely so. My adjustment is to suggest that the British administrations abroad did everything in their

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power to stifle dialectical process. They did not see themselves as opposites of those who would be free of their rule per se. They saw themselves as senior partners who saw off their subjects’ impulses and dissatisfactions with plaudits or prickles as the need arose. Rent control measures have particular importance in the colonial context. Rent and residential tenure were initiated as defences in many departments of colonial capitalism against bourgeois republican nationalist and communist options. Commercial elites of colonial capitalism were not merely using concessions to save their skewed system in a highly extractive form from the subaltern upheaval of their own race as they did at home. By moderating themselves through an offer of compromised institutionalism that clearly referenced the redistribution agendas at the heart of the bourgeois and communist nationalist alternatives, some colonial administrations made quite an ingenuous case for their civilization and its availability to so-called “subject races”. There has been a widespread belief that central tenets of Marxist belief were sidelined by the rise of the welfare state and the end of the cold war. Indeed, many, if not quite all of my contemporaries have abandoned historical inquiry validating any kind of political philosophy, and historical materialism has been no exception. There should be no remonstrations about this, for more than a few on the Left have organized a sociolegal conference that hardly anyone attended or experienced extended periods of unemployment. Yet nor should the sour taste of Eastern European failures which evolved in the midtwentieth century lock us out of purposeful study of colonial history. What is needed is an adroit reformulation of dialectical

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processes, to include new explanatory elements, and admit divergent experiences. In particular cases when a socialist republic was founded on a perversion of Marxian thought, or gloriously was not, but failed or floundered in the face of determined reaction, theory must be recalibrated, not abandoned. Likewise, by not rescaling doctrine ambitiously to colonial contexts, we know what disappointing history has been written. Not that I need to name names, the current alternatives are an imaginative wordplay of aggressive specifics on subordinate cases, propagating a history of plantation subjectivism and gift-wrapping it in anti-patriarchal therapy, or else we are called to endure a pedagogically bereft comparison of big white jurisdictions ultimately disclaiming that events of land theft, exclusory development, and genocide had any discernible pattern, as if the indigenes each cried or died too differently to divine a unifying imperial intention. A few words need to be offered on the language issue bedevilling the theories I seek to use as a guide to colonial history. Louis Althusser, for one, set his sights quite high in Reading Capital when he used neologisms to describe political dimensions of the bourgeois European societies he presumed to read. In striving to enlighten, he felt the need to stretch language and even invent it. For many, including myself, this is on occasion beyond the point of intelligibility. Much of his tendency can be attributed to a vigorous, if rather conceited, late 1960s competition among Althusser and his generation in coining and popularizing new sociological concepts. It was as though they sensed Marxism needed a gimmick to get it through the cold war. The legacy of this time, unfortunately, finds voice

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in the acute descriptivism of postcolonial studies dressed in the allusive finery of doctrine often encountered in postmodern and subaltern circles. Chibber claims the language of those circles “is an amalgam of liberal and Marxist elements which cohere around a particularly Whiggish interpretation about the onset of modernity”.15 In the case of China, such an interpretation would, for instance, treat with incredulity Wang Hua’s discussion of a national conference of Chinese scientists and intellectuals in 1923 to discuss the role of science in solving human problems and in creating an ideal social and political order by insisting on an objective standard for ethics16 or my contention that modern politics are possible with premodern industrial modes. The Chinese had bulkhead sailing ships, as well as planned and sewered urban metropolises, well in advance of Western Europe. However, modernity has been presented as a brightly lit line starting circa 1780, comprised of values, goods, and techniques valued by Europeans and in this way it has lost its character of lucky, high peaks of carefully deployed wealth breaking up the flat line of internecine conflict, crop failure, and plague. When Westerners built industrial mills in China, their modernity initiated tectonic chafe with that of large Chinese workshop enterprises. The mere anticipation of intense friction with a local mode could be reason enough not to build an industrial mill at all. To Althusser, conquest of a colonial power produced a two-speed society. The production of history through the dialogue of different productive modes gave rise to the “necessity of thinking their articulation”.17 His recognition of colonial disjunction and lag appear to acknowledge that not every colonial jurisdiction was transformed overnight; this is not out of step with Marx’s observation on the obstinacy of Chinese

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productive modes against Western domination. Not all colonial discord was produced by a new system chafing with an old one. The modes of particular interest to me concern intervention into local modes of landlordism by offering subaltern concessions to soften the impact of free market rent increases or tenure, and reference to an imperial landlordism in the provision of uppermiddle class Chinese equality with Europeans in access to land. This was not a disjunctive chafing of an old and a new mode of wealth production per se. It concerned a clear colonial legal expression of old-mode prerogatives of land ownership  —  it centred on the British prerogative to give land improvement opportunities and take away rent income. The ignored resonances of Chinese modernity lay in Sun Yat-sen’s ability to find words that spoke to both his Left and moderate factions. By making minzu, or anti-foreign national consciousness, one of his Three Principles of the People, along with people’s power and people’s livelihood, he came to make a claim for Chinese modernity devoid of Western economic influence, yet without ignoring its methods as a source of inspiration. The steady competence of Chinese state bureaucracy, or the monumental and cosmopolitan achievements of Nanking and Shanghai, or the Eurasian/subaltern constructivism of Hong Kong, or the production of exquisite ceramics and textiles, have however not been admitted to the Western politico-legal register of what is superior or modern. Also routinely ignored in recent times has been the take-up and reproduction rate of foreign technology in China as indicators of modernity. The paramount narrative is on Western invention and patentability, not the widespread Chinese middle-class advantage gained by access to it.

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The purpose of my study is not to come up with new words, prosecute a case for redeeming Marxism’s structuralist incarnation nor even to probe into how Marx’s voluminous writings on China appear in the seemingly endless twilight of the Chinese Communist Party. It is a more modest project. It seeks to shed a little light on how, within British colonies and concessions, competing East Asian nationalisms forced colonial masters to make novel variations in social relations of production via governmental and judicial practices. British colonial possessions out East were as controlled by nationalist and irredentist rivals as by their Britannic concordat of reactionary welfarism, garrison muscle, and Colonial Office attempts at gubernatorial ventriloquism by copper-hull missives, and later, telegrams. The colonialism of the Far East was enforced by gunboats but, by being more of a tussle with pre-existing commercial and developmental agendas than its incarnations in Africa, or the big white colonies, should be understood as constitutionally exceptional but hopefully relatable to the experiences elsewhere in the British Empire. The recent writings of Chibber and Anderson are to be commended on their plain-speaking style. Those drawn to colonial historical studies do not need new words but clarity in the use of common ones. I make a single contribution to the postmodern glossary. On occasion, I use the phrase “dialectical inhibitors” to specify pivots of a given colonial judiciary or executive between policies of largesse or reprimand to promote economic constructivism and, by implication, loyalty to the colonial polity or whatever passed for it. Inhibitors such as non-racially based land improvement opportunities, anti-

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nationalist land use policies, pro-working class rent reduction, and public housing policies held back normal dialectical conflict between advocates for self-determination and colonial continuance which, if left to occur naturally, would have tended towards territorial irredentism/decolonization. When a Western government got the balance at home wrong it lost office in an election. In the colonies, when the dialectical inhibitors were insufficiently or insensitively used, whole states cleaved off into independent nationhood, often along with their rubber plantations and gold mines. This is why, quite apart from its dimension in countering indigenous nationalism, the study of the inhibitors in a colonial setting has special importance: the reputation of British nationalism overseas was on the line. The sinews of extraction reaching all the way back to Westminster and the claims of civilizing mission were important. But the British fought not for the continuation or expansion of capitalism first and foremost out East. For them, most at stake was a comforting illusion of colonial control produced by the proceeds of narrow-based monopolism and holding the reins of colonial property distribution. That is, the British pragmatically fought for their place in capitalism. When a foreign power held a colonial system by a tenuous grasp, one is forced to think of relative autonomy in much more instrumental, even crude, terms than did Althusser. When the economic base and the political superstructure were transposed to a Far Eastern colonial shore, relative autonomy floated less than it did back home. Over time, as a petit bourgeois or subaltern bribe, recipients were taunted or tempted by a straightforward exchange of their political benefit

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Preface

for acceptance of British magistracy. This in turn licensed a colonial prerogative to cherry-pick the local economy. Cosseted by walled compounds, arched portals, and filigreed verandas, the British expressed their welfarist political compact with native subjects through an alternation of dry exactitude and metonymic deception in their law. If there is anything especially novel about my reading of the British in their colonies, it is a faith that what they wanted, and who they tangoed with to get it, were expressed in their property law and that it, even if it requires decoding quite often, provides our clearest line to the past.

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1 The Limits of Theory

Introduction By merely identifying class struggle, Marx did not distinguish himself from a hoard of earlier historians. By attaching the existence of classes to particular phases of production throughout history, however, he did something unique: he proposed that the antagonism between the relations of production was what propelled history from one epoch (or historical phase of production) to another. The interaction of thesis and antithesis produced a new form following evolutionary science. Yet Balibar conceded that the science of history was a problematic idea because Marx had not always been perfectly explicit about his conception of history.1 Marxists serially underperform on the impact of nationalism and its decolonizing implications on dialectical process out East. The narcissistic allure of Eurocentrism and the historiographical deficit of good writing on quasi-colonial China are, of course, one and the same thing. Yet the impetus, provided by racist belief in the superiority of Western industrialism, for the installation

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of an unbridled industrialist-capitalist mode of production in China was weak when compared to its dominance in other spheres of British colonial influence. This lack of colonial selfassurance had big, and largely underrated, implications for how race and antithetical positions on Home Rule informed colonial practices in the Eastern Empire. If we are to make sense of twenty-first-century East Asia, we must resist the mordant temptation to refer to the modes of production from the mindset of European colonial progress. Aggressive nationalist conceptions coursing around British East Asian colonies especially, after the early 1840s, made the social relations of production indescribably complex. Overseas colonial dependencies could produce their own relations of production in a manner that sternly contested their negative racial characterization by the local British administrations. Enactment of purely metropolitan measures became quite unlikely abroad. The European blind spot caused by assumed superiority of their economic system was not, as Young recognized, a universal problem for post-war Marxists: “Sometimes Althusser seems to imply that different histories may range through different modes of production, at other times it appears that they are specific to each, an effect of the overdetermination of the social formation”.2 Historical development, then, could take the form of petit bourgeois accretion of capital produced by cottages and workshops, or trade in a scarce commodity, as much of it was rule of the middle class produced by fortunate co-location of water and paddlewheels, or coal and steam engines. I made a bold claim in the preface; one that makes European conceptions of their influence on historical progress of the East

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less an issue of comparison or conceptual narcissism than the chafing and struggle between rival economic systems. Western and local modes of production made a compact not to stray into each other’s domain that was expressed in hybrid institutional arrangements in colonial outposts which, themselves, were the way for colonial rulers to slow down historical progress, by numbing subaltern agony or misdirecting bourgeois nationalism away from a path to decolonization. Althusser was rather indifferent to Third World struggles and especially so when they did not comply faithfully to a Western Marxist expectation of the working class taking a central role as the only truly revolutionary class.3 Thus, those who felt empathy for the wretched of the earth were, in Althusser’s lexicon, guilty of historicism, racial romanticism, or humanist sympathies. They played for postcolonial compensation born of guilt rather than a major revision of ownership derived from historical process. By not willing on class warfare, or revolution culminating in epochproducing political change, the romantics preferred revelling in exceptionalism to verifying dialectical materialism. Questioning how historical materialism operated does not make one less of a Marxist. In my case, I argue that the opposition of indigenous and colonial initiatives was stymied by colonial property policy on Far Eastern shores. Bartolovich suggested the need for an overhaul of Marxist theory when she contended that: “Marxism has viewed modernity and capitalism as inextricably bound up with each other”, but that a new formulation of historical progress is needed that “counters the idealist and dematerializing tendencies” of this most central of

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Marxist assumptions.4 Chibber’s recent contribution breathed new life into the European conception of historical materialism as an explanation for the rise of the bourgeoisie in India to take the mantle of independent government. According to him, “the theories generated by the European experience” do not have to be “overhauled or jettisoned but simply modified”.5 Although his reading has provoked much heated debate in the subaltern academy, its significance has been to put historical process back at the centre of postcolonial studies in a way we have not seen for many years. Throughout the possessions of coastal China, and other British divots of the Far East, local modes of production and distribution were not torn out root and branch by the dominant clench of imperial capital. Colonials enjoyed superior rights in spheres of influence but rarely did they attain political hegemony or hold sway economically outside of their monopolies. Arrighi contended that “European expansion into Asia did not bring the Sinocentric tribute-trade system to an end … it simply influenced its inner dynamics”.6 Reduced to the politics of a single colony, namely Hong Kong, Chiu made it clear that the local colonial government was quite capable of producing political “equilibrium” despite “a very intricate political situation” via “administrative absorption” of local elites.7 In Chiu’s view, dialectical tussles were not fought on an uncontested British ground but on the stage of economically savvy Chinese subjects who participated in “elite consensual government” if Home Rule was not in prospect.8 After 1947, however, despite over a century of economic competition within colonies answered by statutory dialectic busting, the stability

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that had been manufactured in their possessions out East looked vulnerable. In the end, the British colonial administrations of East Asia proved to be “bean curd tigers” in Mao’s memorable phrase.9 Why they had declined in the space of a century had more than a little to do with their inability to conquer and remould the pre-existing economic models encountered in the Far East. This has implications for how much of the historical progress of the Chinese colonies colonialism can be given credit for. The classical Marxian schema has it that the mode of production of slavery, serfdom, or wage labour produced social divisions and social relations of production under which a master, nobleman, or employer respectively took ascendant positions. Marx observed that the capitalist production system reproduced itself not only through property in commodities and surplus value but also by “producing and externalising the social relation between the capitalist and the wage-earner”.10 An historical materialist account of the Far East could admit colonial government alternation between neutralization of nationalist movements and capitulation to them as a way to preserve the relations of production in the favour of foreign investment in the last instance. Marx foresaw that the tenacity of the pre-capitalist mode in China and the impossibility of the British garrisoning the mainland would eventually, in times of serious strife, make the colonial grasp very shaky indeed. Most foreigners had abandoned their livelihoods and property in China by 1947 and by 1949 the British toehold in Hong Kong was all that was left of a litany of concessions that once punctuated the Chinese littoral.

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Althusserian theory needs to be rewritten in the case of quasicolonial China, and the Far East generally, most particularly on topics such as the influence of race on dialectical process, but also in regard to civilization and credit where it is due for the economic advancement in the Asian colonies. Unless this is done, little sense at all can be made of the British colonial administrations offering subaltern rent control and petit bourgeois land improvement opportunities to so-called “subject races” in their Chinese colonies. The replicated policy of rent control, as I suggested in the preface, is prime territory for theorizing because, as a dialectical inhibitor aimed at the subaltern quarter, it was a compensative way for the delegates of the metropole to help keep as many extractive colonial enterprises in the imperial fold as possible. This chapter is divided into four parts. I observe in the second part that nationalist political tensions in British colonies prompted use of a purposeful policy mechanism by the British. In the third part, I lay down the argument framework about the competing social and political forces between which British self-preservation pivoted in their East Asian possessions. Lastly, I deal with a few of the obvious challenges from Chinese history to a thesis of relative autonomy in a colonial context. In the first part it is necessary to discuss how far the dialectical model received by Althusser can take us, having regard to how the enactments of race and nationalism by colonial subjects forced British administrations to recognize the constitutional exceptionalism of the Far East in the way that dialectical interactions occurred.

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Althusser, Historical Progress, and Modernity Althusser was not voluminous in his writings on colonialism. His pessimistic prescription for dialectical materialism can however be transposed abroad to the contexts of the British Far East. Although aware of Lenin’s and Luxemburg’s ideas about imperialism being driven by excess capital deployment, his views added little to the post-1859 position of Marx. Althusser’s primary positions were: (1) study of the colonial relations of production would offer little more insight than the ones viewed at home, and (2) unless former colonies conquered their “historicist humanism”, little more than “reformism and opportunism”11 would come of their struggles. He and his coterie were too occupied with the problems of post-war Europe, and reinterpreting its recent history through a dialectical lens, to turn their minds incisively to the failing British Empire. Yet Althusser was no colonial apologist, despite his beloved French Communist Party’s reluctance to take a decisive stand against the Algerian war. A few words in Althusser’s autobiography reveal his antiimperialism had an unlikely origin: his investment banker father. Monsieur Althusser was a Great War veteran and a man of naturally few words who followed ever more senior appointments in the bank from Algiers to Marseilles to Lyon, and eventually, Paris. His son recalled an incident when General Juin, the French Resident General of Morocco, threatened in 1951 to make suspected nationalist sympathizer Sultan Mohammed V “eat straw”.12 Mons. Althusser was expected to cheer on this comment like all loyal French in the North African

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commercial community. Instead he stayed silent and, in his son’s account, “it did not go unnoticed”.13 In two other historical accounts, Juin’s comment was attributed to his successor in the Moroccan residency, General Guillaume who took over in 1952.14 It is not important who uttered the words, for both men were cut from quite the same Colon cloth. The “straw-eating” moment reveals the colonialism known to Althusser in French Algeria was two-sided. On one side was implacable urban welfarism. On the other side was government violence and repression. This was symbolized by what Kelly termed the “political apartheid” of offering French citizenship only to those Arabs and Berbers who renounced their Muslim faith.15 The least the colony’s commercial mainstays could do, including men such as Althusser’s father, was cheer loudly at the moment Arab humiliation was suggested. Accepting that the social relations of production reflects its modes, I also suggest that a satisfactory reading of the Far Eastern colonies cannot, nevertheless, refer only to class or look to an emerging bourgeoisie as evidence for historical progress. Those who have interpreted and applied Althusser’s ideas in a colonial context can be taken to have underestimated the role of race in the production of historical progress and as a proxy for independent nationhood. Race was a driver of how colonial jurisdictions managed history, not a subcategory. Colonial administrations in China were obsessed with countering by law the broad-church racial claims of bourgeois nationalism by shoring up subaltern support through rent control, and inoculating those bourgeois who were vulnerable to nationalist infection by offering them preferential land improvement

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opportunities, conferring on them an aura of white constructivism without quite allowing them to become legally white. But it is not only on the question of race that the position of Althusser needs to be re-evaluated. The exceptional economic and social conditions of China — a desperate, whiteknuckled economic wrestle between the “old” world and the “new” — raised questions about the constitutional success of all imperial powers in China. Also challenged were the conceptions that Europeans alone brought modernity and historical progress to Old Cathay, or that they would always handpick their successors from among local subscribers to a bourgeoiscompradorial code. Despite Althusser’s pied-noir origins, he could never be counted among those secretly hoping to retain Algeria as a département de la République. His own life’s colonial context made him acutely aware of the contradiction posed by France lording it over her overseas possessions. His loyalty to the French Communist Party strongly implied, however, maintaining the status quo in Indo-China and keeping Algeria firmly in the French fold. As a child, he thought the parlous and isolated situation of various African heads of state banished to Algiers from other French colonies “doubtless my first lesson in politics”.16 Nevertheless, he was not greatly interested in making the colonial problem his philosophical focus, other than to write metaphorically of the great continent of history and its need to be liberated from its illegitimate occupants. Instead, he preferred his imagined, songful reveries with the French provincial working class in the pub after the wheat had been harvested and

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threshed. Despite his upbringing as the son of a bank manager in a colony of the French empire, it produced no sentimentality in his view of social relations of landlord and tenant or capitalist and wage earner. An essential idea in Reading Capital was to show how analysis of the relations of production, when it abandons class, becomes lost in the study of “human relations” or “intersubjective relations”.17 Yet race was never regarded as intersubjectivity by those who experienced racism. Race was more than class taken to the absurd level of skin tone; it was constitutive of colonial relations of production. In China, Han racialism animated indigenous nationalism in each of its communist, warlordist, and KMT variants. Whether Chinese nationalism aimed at nationalization of industry or ejection of all monopolist foreigners, or their sufferance until their lack of utility became plain and they could be brushed aside, nationalism was a coherent plan for decolonization, no matter the shade of ideological belief one subscribed to. Robert Young saw Althusser’s failure to visit the Latin Quarter of Paris in 1968 as a reason for his remote, rather white, and crusty approaches to colonialism.18 I would say he would also have benefited greatly from a visit to Chinatown for a bracing dose of antiMaoist diaspora perspective. The Maoism in Althusser’s thinking was submerged but influential. In Reading Capital he admitted to reading Mao’s 1937 text on contradiction, but plays it down by a subsequent discussion of symptomatic reading.19 Mao made plenty of references in his writings to domestic bourgeois reactionaries and even singled out “the aggressive forces of U.S. imperialism

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in China” for special criticism.20 Yet when he wrote of the contradiction between classes, between the old and the new, between productive forces and the relations of production, he did not differentiate between foreign exploiters and local ones. This was influential on Althusser not having a colonial angle on historical materialism. So too was Mao’s heretical use of contradiction as a radical equality principle and his belief that it alone was “the impetus for the supersession of the old society by the new”.21 This implied a communist struggle that would dismantle social hierarchy in the community and a socialism that would flatten the party out too. Underrating the impact of race in places such as the Asian East, of course, has not been the only doctrinal underestimation of the classical Marxist perspective. According to Hobsbawm, early British industrialization made their excess capital “indispensable” to underdeveloped nations whether “they needed us or were not allowed to do without us”.22 This endorsed Luxemburg’s position that the growth of British industrial capitalism was unthinkable without external markets. Kowalik — with good reason — labelled this “extremist”.23 Indeed, the situation in China clearly defied an unquestioned imperial assumption in the nineteenth century that exporting goods to underdeveloped spheres of influence, or building gleaming mills in such places could only be to the benefit of the imperial country, or were central to the economic life of the host country, or particularly emblematic of the modernization of China. With the exception of opium, the Chinese often indirectly benefited from the capital impact of the British and the Americans. The foreigners, whether subject to violence as they were in the Boxer Rebellion, or onlookers as they were

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in the Taiping Rebellion, nevertheless crept back like ivy once hostilities ended because opium trading formed the centrepiece of foreign economic activity in China. Althusser and Luxemburg coincided in a view that imperialism was the deployment of excess capital beyond European shores so that capitalism itself did not become endangered at home. This has been the narrative accepted in orthodox communist China too. Foreign industrial capitalism started to take off in China in the 1870s and postdated the commencement of the British Industrial Revolution by about a century. The central position of the British colonial administrations in China — as Hu Sheng observed — was due in large part to their league with other foreign powers, who together seized key ports, established spheres of influence, dumped their goods there, confiscated mines and controlled the right to build railways.24 Hu’s view in 1955 was the same as Luxemburg in 1913. Hu held that colonialism in China was “a dominion of monopoly finance capital” requiring European nations to “go on the prowl for additional colonies”.25 The extent of a European colonial dominion could be very selective because of the fierce local competition in production of goods. The Bund in Shanghai emerged in the 1850s from the shifting mud, stately and ingenious, hewn granite imperious on bound splints of deeply sunk fir. But it was, for decades afterwards, little more than a shopfront of merchant civilization obscuring a labyrinth of local industries behind. Elvin persuasively argued that foreign investment in China was often precluded by the high capital costs forced onto wouldbe investors due to the pre-established Chinese industries,

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especially those in the textile sector.26 The British government could tolerate stiff competitive headwinds provided by a robust pre-industrialized mode of production in China supplying the local market, primarily because of the silver extracted from the country by the Bombay-to-Canton opium trade. Their colonialism was one of easy pickings because avoiding expensive capital outlays was the only available strategy. British, American, and French cartels could not shut down the local industries. When the British first entered China in the mid-eighteenth century, they observed Chinese everywhere engaging in preindustrial surplus value extraction in each of its bond, feudal, and salaried forms. It was access to markets that motivated foreigners, not the wholesale replacement of the Chinese commercial class. The foreigners did not, in the early years of Shanghai for instance, set about competing with Chinese entrepreneurs but, rather, parcelled up strategically critical mudflats and concentrated on exploiting trade in low-hanging monopolism: firstly opium, then gambling and other “farms”, railway monopolies, sale of residential land, and later, sinking mines and growing and processing cotton. As was to be expected, in the 1880s the British and other foreigners unveiled gleaming machinery in large manufacturing concerns, but so did several Chinese hongs (family firms) who were equally adept at exploiting fellow Chinese as factory fodder. Of course, there was racial segregation of industrial interests in Shanghai  —  Pootung was for Jardine Mathesons as well as the American firms, and in Chapei were located big Chinese concerns including the mighty Kiangnan shipyard and the dominant Shanghai Power Company. But the suggestion that

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China’s pre-1949 industrial phase was the exclusive domain of white men is quite mistaken. The British stayed on top of their colonial apex by being the least of their subjects’ worries. They also opportunely pitched to the local population various opportunities to sanctify or save the locals in the face of the internecine insanity bubbling all around them. Those Chinese who withstood warlord intimidation, intermittent famine making skeletons of landlords as well as tenants, cholera and malaria, stayed out of the path of Chiang’s or Wang Jing-wei’s power lust, avoided spurts of communist urban predation, or wholesale Japanese land theft could do quite well. Little surprise that they did not think often of the white foreigners barricaded, plump and ruddy-faced in their concessions. The Luxemburg/Althusser thesis is one of excess European capital pouring into colonial possession to alleviate the constipated home economies. This was not convincing in China, where the idea was that colonial powers went East to trade on an imbalanced basis, and at gunpoint, rather than build mills to exploit local labour. The British in China had — by the 1860s — impoverished the country by an extractive trade monopoly in opium and customs duty appropriation, rather than through industrial exploitation. It must be said the strategy had not been perfectly formed at the outset of their colonial foray. In the late eighteenth century, the British East India Company paid in silver for its Chinese purchases because locals had no need for garments of wool.27 Clearly, this was no strategy for success. The foreign opium trading monopoly prompted two opium wars securing treaty ports with preferential trading rights

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for Western powers. Yet the opium trade maximized British profit without noticeably impairing primacy of the local, nonindustrialized mode of production. Marx, although having no great proclivity for the Chinese, found it remarkable that, in regard to them, opium “animated instead of stupefying”.28 In post-1989 China, totalitarian thesis meeting social democratic antithesis in Tiananmen Square did not produce a new thesis. Political power did not pluralize when widely expected. In post-war Eastern Europe a similar conclusion was made and dialectical materialism questioned. Unlike Althusser, I do not defend the dialectic by claiming Marx’s inversion of Hegel has been misunderstood, but I do have some sympathy for his claim that sometimes we have to wait for a longer period of time for it to reveal its pattern.29 I see the actions of governments and judicial benches as using hybridized law practices to thwart historical dialectical processes by consistently providing the compensation of a politically recognizable middle ground short of colonial overthrow to placate bourgeois and subaltern claimants to independent nationhood. Pederson notes that a prime modus of subaltern studies has been “seeking after cultures or cultural formations that provide fully formed alternatives to ‘Western’ modernity”.30 I think it is rather more the case finding out how Western legal forms responded to obstinate or volatile Eastern political expectations. Colonial states can and did frustrate dialectical progress but could not do so indefinitely, as did the Eastern European states of the former Soviet bloc. Lyotard gave examples of cold-war repressions in Budapest, Berlin, Czechoslovakia, and Poland as evidence that the great clash of doctrines ended not in synthesis

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but “bloody impasses”.31 Clashes between groups over a preferred political or economic mode retain their explanatory power over history only if history informs theory. But this has not been a fashionable approach. As European minds divined the idea of dialectical materialism, its postmodernists, Shiva-like, have thought it theirs to totally destroy. They had made quite a good job of it until Chibber came along and reinvigorated the debate about dialectical materialism. His rejection of postmodernist claims to have “excavated the sources of subaltern agency” through recognition “of the cultural specificity of ‘the East’”32 surely sets out to be provocative. It is quite easy to nominate the subalterns as not-quite-Marxist and therefore mistaken. It is very challenging to explain the great derailments of dialectical process either in the case of cold-war Eastern Europe or nineteenth-century quasi-colonial China. These incidents require explanation and incorporation into a model of dialectical materialism that meets the modern prescriptions of a science of history. Chibber as surely proclaims the mistake of distinctively Indian agency as Althusser would charge me with historicism. It seems that Chibber and Althusser see historical materialism as a law not wanting in universality. I want a better kind of evidence of its operation in what legal philosophers call hard cases. Marxism has few fiestas around the campfire these days; it is too full of doctrine snobs and gallows humour. Dismissal of dialectical materialism by disappointed postmodernists leaves them with little left to do but reword segments borrowed from the omniscient philosophers of the nineteenth century. They impatiently brought their unemployment on themselves: they denounced the dialectic at

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the very moment when the likes of Honecker and Ceausescu seemed like they would continue their rule from the mausoleum. Eurocentric experience, embittered from 1950 to 1989, could never presume, however, to condemn dialectical process as a useful beginning point. But nor should it be laboured in places where its explanatory power seems equivocal. Dialectical process can flow freely but when it is choked up at the will of parties to the state for an indefinite period, let that be acknowledged as an exceptional strategy of British colonial governments, or the Soviet-bloc Eastern European governments, without abandoning the process of thesis/antithesis spawning a new form. Human determinism — subjective will — can and does prevail over the science of history. The Hegelian process of thesis and antithesis being deprived of universalism by the tenacious examples of a handful of coldwar client states of the U.S.S.R. might matter most as a lesson in how history gets held up. Let us sift through colonial histories to identify dialectical inhibitors. My focus on the British Far East, for instance, seeks to emphasize governmental and judicial relative autonomy as playing a crucial role in suppressing or delaying dialectical conflict that, if let run its course, would yield an authentic local rule sooner rather than later. Althusser’s counterargument for the postmodern denunciates of the dialectic appeared in his posthumously released autobiography, The Future Lasts a Long Time. Doubting the Eastern European communist leaders “could or should”33 have behaved differently, he attributed their survival in the wartime resistance to their cold-war tendency to be “more Royal than the King”.34 He reminded those who doubted the dialectic that

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the repressive and clandestine methods of those governing in the Soviet bloc were learnt while resisting German fascism.35 Rather more open-minded than he is given credit for, Althusser accepted that the “plurality of instances” of relative autonomy in every social structure remained “subject to revision”.36 By referring to plurality he made it clear that autonomy is indeterminate, in the sense of evening up social imbalance in a given moment, one way or another, but restoring it a moment later. For example, when making a case for colonial relative autonomy, the truly independent mode of the law is rent control and statutory tenant tenure, the semi-dependent mode is the government curbing the worst laissez-faire excess of landlords and the dependent mode — the one closest to relations of production made naked — is not to regulate the relationship at all. By positing a law that was independently pro-tenant, colonial administrations across the British Far East sought to secure an extension of time before the exorable slide into decolonization occurred. For Althusser, the roles of landlord and tenant, as well as industrialist and servant, constituted “the real stage directors of history”.37 In his view, they danced cold and colourless to the same music everywhere in the world. Thus, the physical location of parties, whether in the métropole, or a far-flung overseas department, did not really matter much to Althusser. Humanist subjectivity obscured true economic relations everywhere one cared to look. Friction between social classes being the driver toward modernity in the Marxist perspective meant race had a tendency to be dismissed as an agent of change, and seen as a subjective or subordinate concern. If you were a Kanaka

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cutting cane in Queensland, or an indentured Chinese person from Shandong running supplies up and down a Somme trench or a Tamil building a railway in East Africa, no doubt you saw the world a bit differently. Althusser reserved special distain for Satré when his subaltern outpourings turned passionately sympathetic. As a result, despite its enduring popularity in Latin America and India, Reading Capital has not travelled as well as it might have in the postcolonial world. Colonialism has seen subaltern voices muted and spoken for or about and, to an extent, Marxist theorizing has been complicit in this. The default position of Marxism equating capitalism and modernity has meant to read down the influence of race in the colonies, and accordingly, its proxy in the form of nationalism as a threat to continued colonial rule. The sophistication of local industries, then as now, has also tended to be viewed quite unthinkingly as an extension of racial capacity. Having identified places where Althusser’s writings can usefully be augmented, as well as ones where he is unhelpfully silent, my study turns now to the question of Eastern exceptionalism on the question of race and why it could usefully be incorporated into Marxist thinking about historical process.

The Race Question in Far East Asia For Althusser, the social relations of capitalist production did not refer to particular occupants of roles, their race, or location in a European or colonial system. Nor did he require linguistic or anthropological reasons to make sense of what it meant to be a landlord or a tenant in Algiers or Paris. For him, subjective

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writings, including ones on race or bottom-up subaltern accounts, distracted analysts from a vital matter: the problem of private appropriation of surplus value wherever it occurred.38 It could be thought that Althusser’s central claim concerning relative autonomy of base and superstructure, as a means of reproducing asymmetrical relations of production in the final instance, could be practised as surely by officials and jurists on “natives” as their ruling counterparts in Europe did on English or French factory hands. Yet relative autonomy was nowhere in evidence in the unmitigated legal oppression of the West Indies, or South Africa, or any of the big white colonies colonized in the eighteenth and nineteenth centuries. As a technique of colonial government, relative autonomy in the quasi-colonial footholds of China emerged in the form of rules that were not seemingly indeterminate, or political stability won by spending pennies on subalterns, as seen in Althusser’s account. Instead, the autonomy I speak of was an instrument of authoritarian mediation: rent control to avoid populist nationalism and investment breaks to win friends selected from local bourgeois ranks who otherwise might have a personal stake in the plans of nationalism. The example given later is Hong Kong’s C.P. Lau. The early twentieth century petit bourgeois critique of colonialism seldom questioned mother-country pro-low-wage investment decisions being based on the race of workers or the racially inspired discriminatory and displacing effect of European policies in the communities where colonists settled and invested. Although I share Althusser’s interest in rent and profit as a distributive incident of social relations, in the colonial world the relationship between race, rent, and profit needs to

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be addressed rather more methodically than it has been to date, and with a sharp eye to the Eastern colonial experience. In the Far East, race was empowered by nationalism, it was not in most cases, the cause of exploitation and enslavement as it was in many other parts of the British Empire. But no account can one entirely ignore the gross precedent of Atlantic slavery. Magubane noted that Marx was fond of presenting black and white proletarian suffering in tandem.39 He suggests that this was a continuation of abolitionist rhetoric asking white readers to put themselves in the place of a black slave and to imagine their suffering. Marx took the social relations of production to be the root cause of human suffering, be it black or white, and so did Althusser. Both could no doubt have done more with the revolutionary potential of African and Chinese suffering at the hands of European colonists. The greater quantity and severity of the black race’s suffering compared to that of the white race suggests that capital was not equally indifferent. This must be a beginning point of a discussion about the colonial modes of production, even if not entirely apposite in China for reasons noted shortly. At the very heart of the capitalist social relations of production is the prerogative of an individual to extract surplus value for private gain. In Althusser’s description, such relations determined a legal right to a particular “distribution of income”40 based on ownership of property. As he related to Marx, profit, rent, and interest are all accordingly “reduced” to surplus value.41 The undivided pursuit of surplus value was countenanced and promoted by Europeans throughout the

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length and breadth of their colonial empires. This was despite petit bourgeois counter-critiques emerging in the early twentieth century that too few people profited from colonialism having regard to its military expense to the colonizing nations. But that does not explain is why it took until the mid-1970s for Marxists to seriously consider the resilience of the Oriental pre-industrial mode of production. Let us now consider the colonial racial problematique at its widest points. In the mid to late nineteenth century about 300,000,000 Chinese people, under both capitalist and precapitalist modes of production, exploited each other on a greater scale than the 50,000 or so British and other foreigners perched in their treaty ports ever did. Perry Anderson developed an idea that pre-industrial Oriental modes of production “cannot be defined except by their political, legal, and juridical superstructures” because these were what delivered “the extraeconomic coercion” needed for the mode to continue to function hierarchically.42 This insight was offered as if such coercion only benefitted the ruling Chinese. British colonials loved to compare their land law with that applying in the confiscatory Chinese hinterland. Anderson identified a truth about Chinese law being arbitrary but did so as if the British in China, having diagnosed indigenous tyranny and corruption, could keep their distance and wag their fingers. Rather, they were routinely hoodwinked by their own compradors in games of trust and trade, and when they carved out monopolies, did so by retaining the confidence of warlords to keep potential competitors in their place. That is, the British

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often relied heavily on the coercions of the pre-existing Chinese system in order to do business. Some credit should be given to the classical Marxian position that it is not a British landlord or industrialist who — somewhere far-flung — should be the focus of critique. Rather, one’s concern should instead be specifically for how legal settings could allow a residential or rural property holder and their children of any race or nation to retain and perpetuate their position of advantage. Fanon’s “stretch” was for Marxism to recognize racism as determinative of “desert” in colonies. Mine is for it to accept racism as an inspiration for competing nationalisms producing reactive colonial accommodations. This enabled a state of recognition to prevail as allowed pre-industrial and industrial capitalist modes to work side by side in the Eastern empire. Of course, the British blustered about trade, extraterritoriality, other treaty rights, and freedom of navigation. But these freedoms were those of individuals who fortified frail political alliances with such words until the troops and gunboats arrived. By appealing to universalism in its approach to social relations of production, and not weighing up African suffering, classical Marxian thinking has risked reading down the importance of white colonial racism in places where it was most debilitating and extractive. Some may be surprised to learn that China was not especially such a place — its people and economic systems were much too unconquerable. Forget the oceans of silver that opium trafficking generated for the British and the “century of humiliation” alleged by ultra-nationalist Chinese communists. In China, foreign industrial capitalism was resisted by pre-industrial modes of production.

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Put another way by Sawyer, Marx’s work “bore witness to the all-pervasive influence of the evolutionary paradigm in nineteenth-century social science”.43 There were modes of production other than that of industrial capitalism capable of mass-producing high quality, low cost goods. Whether washing out dyes from cotton by hand in the Yangtze, or producing phaeton carriages in Shanghai workshops, or steel-splined umbrellas in Canton, the Chinese vigorously exploited each other in their own systems of mass manufacture and marketing. The scale of exploitation of Chinese by the British has no serious comparison to that of the pre-industrialized Chinese by their own nationals. No wonder European Marxists care little about “colour-to-colour” exploitation in pre-industrial China and “not entirely colonial” relations of production overseas. Lamenting that the most egregious racism was at the hands of a white landlord or industrial capitalist abroad might be an improvement on “who cares what race the exploiter was?” that one finds in the texts of Marx and Althusser. But the traditional inattention to racism of Marxism remains at least one good reason for the developing world to decline its prescriptions until some clarity can be achieved. It seems that the intensification of exploitative relations of production at home in the nineteenth century had some sort of unspoken doctrinal pre-eminence for Marxists over those abroad. The British did not simply exploit labour in their own home isles but actively trafficked Indian and Chinese indentured labourers around their Empire. Olivier saw this as being due to the fact that in the home countries of the exported labourers, “land is fully occupied in private ownership”.44 How, then, in a

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world awash with tenants and hopeful servants could the British go wrong? For Olivier, this ethical problem outweighed every other consideration: “If it really may be to the natives’ interest that the White man exploit his labour that is no reason at all to bring moral credit to ourselves for colonisation”.45 Here is an unusual point of unanimity for progressive Western Marxists and their reputedly gauche post-Maoist counterparts. The ascension of the CCP to national government in 1949 supplied a platform for a representative Chinese narrative on colonial exploitation which displaced the Western one and its reframing of economic parasitism as “free trade”. In all colonial contexts, questions of race and racism were to an extent unavoidable. They have been compounded by modes of production being seen by Marxists in evolutionary terms. They have never have quite demolished a theoretical framework that saw a pre-industrial mode as used only by people inhabiting the lower branches of the homo sapiens family tree. Not only has there been the evolutionary misconception but a belief, along Althusser’s line, that a capitalist mode of production, like a steam roller, causes suffering without particular kinds of discrimination being at work. Frantz Fanon, for one, thought it was a bit more complicated than the social relations of production disinterestedly finding expression in a wage labourer or tenant the world over. His belief: “Belonging or not belonging to a given race” is what “parcels out the world” and “this is why Marxist analysis should always be slightly stretched every time we have to do with the colonial problem”.46 But should race be given a determining weight in the analysis of social relations of production in every colonial setting?

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Althusser conceded quite freely that to explore scientifically what he called “the great continent of history”,47 much work remained to be done to turn his many abstractions into mediate propositions. The importance of race and racial determinism in the question of who got what under colonial relations of production must come close to the top of the list. Were, say, British decisions to go to South Africa to mine gold or China to cultivate and manufacture cotton based on racism? Surely, it splits hairs to say that they went abroad with excess capital for a better return on their investment and that, coincidentally, the low-wage people they employed just happened to be people of colour. This is at least one point in favour of the classical Marxist concentration on class, rather than race. As Allahar saw it, in the ex-colonies, coloured proprietors of industrial and agricultural concerns would much rather local workers saw their exploitation in terms of race than class.48 Racism was intimately involved in many colonial investment decisions. As Porter pointed out, before Hobson’s thesis in 1900 that domestic overproduction and the need to deploy excess capital drove the evils of imperialism, “the excess capital theory had been an argument in support of imperialism rather than against it”.49 The British seem especially guilty of theorizing about their Empire as an innocuous resource redeployment hub having a tendency to obscure a clear view of race in determining whom they dumped their goods on. The Chinese typically encountered by colonial British were literate, numerate, but politically divided. Notwithstanding this, British claims to racial superiority in China were vigorously countered at every available opportunity by locals. One anonymous Chinese

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provincial vice-consul in 1852 took a position that the British lacked moral merit to be a colonial power: It is monstrous in barbarians to attempt to improve the inhabitants of the Celestial Empire when they are so miserably deficient themselves. Thus, introducing a poisonous drug for their own benefit and to the injury of others, they are deficient in benevolence. Sending their fleets and armies to rob other nations, they can make no pretence to rectitude … How can they expect to renovate others?50

Colonialism was viewed by the Little Englanders firstly as economically unsustainable for the mother country and, if mentioned, unethical only as a secondary concern. When Cobden’s argument against colonies was not railing against the military expense of maintaining them, his concern was the social distortion created by the third-born sons of landlords becoming the main beneficiaries of overseas possessions. The Mandarin had emphasized an ethical case against the British of the Far East for interposing themselves in the social relations of production as landlords, employers, and merchants, but it was also an allusion to the third-ratedness of the British in China, as if a little surprised that third sons could be voracious examples of the human species in their own right. In Luxemburg’s words, their need to go abroad for “untrammelled accumulation”51 appears evil because it was compounded by their claims of bringing civilization to colonial domains. I contend: it was not displacement of the Chinese through racially-driven ownership of mass production interests that characterized the colonial system in the Far East. Rather,

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East Asian British colonial racism based itself on a racially hypocritical conception of Free Trade (in capital letters, no less) that produced Chinese indigenous nationalism. British guns, politically skewed land dispensations, and later, public housing welfarism, were relied on to counter nationalism produced by the Free Trade stance, the farce of which was proven by preferential and forced trading relations under successive treaties. The British constitutionally othered local people though exclusive trade prerogatives until a limit was transgressed, producing many forms of nationalist, separatist vehemence in turn needing administrative management. My approach to reading the Far Eastern colonies does not “place racism outside the field of nationalism”52 as Balibar warned against. Obviously, racism more or less constitutes nationalism. Rather, I emphasize British, race-based, tradeled impoverishment as a counter-productive prime mover of antithetical nationalisms in East Asia. In turn, rival nationalist visions pushed colonial policy in a paternalistic direction toward modest modification of the relations of production, most notably in favour of tenants in the post-Second World War years (chapter 3). Episodic Chinese backlashes against their ruler’s racism slowly corrected the misfit of British attitudes to China and the Chinese. In the Far East, the British could not, as McClintock phrased it, incontestably “write the inevitable legend of commercial progress across the colonial landscape”.53 The Chinese were much too good at business, and too expert in a galvanizing use of their own racist prescriptions towards the British, to let that happen. The British understood this in Hong

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Kong and set up a land market that protected local Chinese and excluded foreigners (chapter 5). Alienation by the British had high and low church forms. The low form was a process designed to legally distance native people from the goods they manufactured, or clipped, or picked, or dug up, and none of that comes as any surprise. The higher form involved racially metonymic use of historical and political reasons to constrain local people from embracing an emancipative identity. If, as Althusser reasoned, “the human subject is de-centred, constituted by a structure that has no centre either”54 then the fine and great colonial façade seen by colonized races alluded to a degree of civilization made unobtainable by them being treated as if holding no essence or capacity for solidity. This ideology had no traction in China. Race is both an absurd and very powerful way to divide up the world. Its irrationality would make it weak, rather than strong, except for sly metonymic devices that were used to give cover to its true purpose. The ruler simply picked a characteristic of civilization, say, “cleanliness”, inverted it to make “dirtiness”, and consistently associated it through stereotype to a particular neighbourhood. Then, the ruler claimed to be tackling “the dirtiness problem”, and that unfortunately, it seemed to be over-represented in the area inhabited by race X. The metonymic game fast-tracked development of property schemes by proscribing open and fair debate because those in the ruling clique who decided the contents of the stereotype could not see any good reason to think otherwise. The nominal

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depersonalization and deracialization entailed by referring to “neighbourhood” was quite sufficient to save injured feelings of comprador cronies. If you wanted arbitrarily to get rid of Chinese brothels or gambling dens on account of their “squalor” you gave a right of complaint to “respectable citizens” nearby. If some contemplated broadening representative settings to include the Chinese in decision-making, opponents had only to refer to the “rampant corruption” or “warlordism” of the Chinese when left to rule themselves elsewhere. If you wanted to make the hill station a racial preserve of whites you spoke at length about crowding, poor sanitary conditions, and the shortage of European houses in the town below, etc. The making and application of property regimes were riddled with metonymic allusions. These examples were commonly used devices in East Asian colonialism but rang especially untrue in China because they were aimed at commercially literate people fond of calling a spade a spade. No Chinese bought the idea that the Arcadian silence and remoteness surrounding European residences in the Far East were natural standards of a higher, less wanton, less pestilential civilization. The race question in the British possessions in China was not so much a matter of a subject race being pressed into an exploitative social relation due to insufficient culture or development. It was much more to do with the emanation of race as an antithetical political force that threatened a colonial enterprise and needed to be countered by law. The next task of this chapter is to delineate the elements in the colonial-era history of China that suggest it should be treated warily by any espousing that unmodified historical materialism has explanatory power out East.

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The China Exception Exceptionalism in the subaltern studies of India has recently come under attack from Vivek Chibber. In his view, the likes of Ranajit Guha, Partha Chatterjee, and Dipesh Chakrabarty want to argue that the character of the Indian bourgeoisie was unique, that the role of capitalism in social relations was relative rather than domineering, and the political psychology of Indian subaltern agents was highly distinctive.55 These elements, in his view, have been used misleadingly to argue that the Indian experience stands outside of that which can be conveniently comprehended by European historical materialism. The Chinese experience of colonialism was exceptional in the hybrid institutional and legal compromises that foreigners were forced to innovate and concede to their Chinese subjects. The exceptional aspect was in the argumentative and combative qualities displayed by Chinese people themselves. The British could control parts of China militarily, but could not properly rule them without a concessional legal and political framework that sought to make personal commercial rights into what can only be described as public and constitutional ones. In British Eastern possessions after the Pacific war, increasing distributive measures in their colonial dependencies were a prophylaxis against immediate decolonization drawn from ideologies portrayed by the rulers as being extremist, exterior, and as threatening to lay waste to all that had been achieved. British colonial governors out East had to walk a strongly contested tightrope between communist and bourgeois republican policy prescriptions. This process was a novelty to the British colonial officials, considering the command and

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control style of colonialism that came so naturally to them in other corners of their empire. Marx and Althusser were mute on the constitution of the relations of production in the British Far East having regard to concepts of race and racism, Chinese commercial vim and endeavour, not to mention the need to nullify the attractions of competing nationalisms. Marx did however, see “internal solidity and articulation of pre-capitalistic national modes of production” in China as “obstacles” to “the corrosive influence of [English] commerce”.56 He regarded, in particular, the low prices of English goods as a threat to Chinese spinning and weaving industries. However, unlike in India where the colonists aimed to destroy such industries through their “direct economic and political power as rulers and landlords”, in China the lack of such direct power meant that dissolution of local modes of production “proceeds still more slowly”.57 Marx had no problem at all in admitting the exceptionalism of China, or at least the long time it would take for Western capitalism to finally triumph there. This makes Chibber’s historical materialist attack on the subaltern studies collective more than a purist proclaiming one true faith. He makes an old fashioned accusation of historicism. In doing so, however, he negates the room to move that all Marxists should feel they have in explaining their national histories. Nineteenth and early twentieth-century European critiques of colonialism tended to regard it as the Romans saw fights between Christians and lions — with a large degree of fatalism. Lenin was not interested in colonialism except to say that it was an apocalyptic phase of capitalism.58 Mysteriously, by its

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relentless pursuit of yet more bodies from which to extract surplus value, capitalism contained a fatal contradiction that would bring about the system’s undoing, rather than, say, its ever-increasing sanguinity and entrenchment. Hobson, with all the sympathy of a bugler for a fox, argued that exploitation of natives through theft of agricultural land or the use of cheap industrial labour was the lamentable pattern of all European colonial powers abroad, but did not share Lenin’s fatalism, believing cheerfully instead in the prospects of “constructive economic internationalism”.59 Bentham’s position was that pursuing a policy to “monopolize and cramp” the trade of distant colonies was financially ruinous and led to a distorted British constitution.60 But Bentham, now a publicly displayed stuffed corpse in University College of London, once showed he was of life: he changed his mind. He later instead insisted that the colonies’ economic self-reliance and political dependence on the mother country was the best scheme for them to maintain law and order. None of these critics applied their ideas to the special circumstances motivating colonial capitalism in the Far East: the self-supporting nature of most of the British possessions out East because of the opium trade and the equality bestowed on the Chinese due to their commercial energy and constructivism. The ability of the Chinese to thoroughly exploit each other indicated that the precepts of capitalism — the rights associated with private property including narrowly broadcast commercial profit from trading — were well entrenched in China before the Western powers began their infiltration. State ideology to protect and nurture local hierarchies found its basis in Confucianism

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which stressed that an individual should know their place and that social harmony was achieved through respect for authority enforced through succession processes in family hongs and status distribution controlled by imperial examinations. I shall now outline sites of exception that make a standard of dialectical reading of China challenging. The first was that it took two willing opposites for a dialectical tussle to emerge and for a new social form to predominate. In the Far Eastern possessions of the British there was a strong tradition of Chinese individual and collective commercial trading that stood outside of the reach of colonial government control. It was often misleading to speak of a class of subjects or relations of production against whom a colonial government chafed in determining the evolutionary advance of capitalism. Locals did what they wanted without much concern for the finer sentiments of the British colonial enterprise, or their fulfilment of a role expected of them by Marxists. This was epitomized by the loose and reactive colonialism in Shanghai, and the unregulated chaos of its multiple modes of local and foreign production. Individual bourgeois agency played a part too.

Divide and Survive: The Example of the Chiens When Chiang Kai-shek took the mantle of a national government in Nanjing in 1927, his education ministry also took carriage of accreditation, funding, and curriculum in business schools in nationalist-held as well as foreign-held China. The British could make welfarist claims to take customs duty on Chinese imports for the purposes of hospitals and improved

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docks but they could not prevent the Chinese improving themselves. This is the first challenge to a colonial statist autonomy analysis in the China example: people could and did prosper without reference to their role as a social relation to their colonial master. They did not fall invariably into a passive contract with the state to eat better food yet continue living in the same neighbourhood. They were quite happy to cultivate and accept patronage from more than one source, too. Chinese families often divided their political sympathies at least three ways so that at least one line of the family could survive the tumult of China from 1842–1949. An example was the fortunes of the Chien family in the republican era (1912–37).61 The three Chien brothers together ran the Nan Yang (Double Happiness) cigarette manufacturing empire. The youngest brother was a bit of a fop, but nevertheless stood staunchly for the enigmatic republicanism of Sun Yat-sen and its later bourgeois incarnation in the form of Chiang’s KMT. The middle brother became a regional leader of industry under the communists in the early 1950s, and the eldest died a broken man under house arrest in 1941 during the Japanese occupation of Shanghai after having watched the local factory being destroyed and looted in fighting in 1937. They belonged to noone; they were too self-interested and reactive for that. All three of the Chien brothers were bosses of modern factories in Hong Kong, Shanghai, and Canton at various times. The suggestion that each brother was a placeholder, or a beholden imitator, of a white capitalist is quite obviously risible. These were not colonized men, at all, and who would say their outlook was uncommon? Nor were they natives invariably

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seeking nationalization as a concomitant of nationalism. Nor were they unified as allies of a particular colonial power or even a single version of Chinese nationalism. A principle of dialectical materialism is that, in a European or colonial setting, interrelations of opposites force development and transformation of the relations of production as a new mode of production becomes available. Yet, quite apart from my detection of use by British colonial governments of hybridized legal forms to quell dialectical dissent, the practical freedom and navigability of multiple political interests by the likes of the Chien brothers makes it hard to argue that they were grasped by a British, or any other colonial government, in an inexorable wrestle expressing the decline of one mode of production and the rise of another. The modes of production were various in China. The oppositional dialogue between ruling colonial interests, and these DIY Chinese entrepreneurs, when it did occur, was a testy one about tariffs, taxes, and the privileged market position of outfits such as British American Tobacco, and nothing more. The brothers had adopted modern industrial capitalism, but had extremely diffuse political allegiances as a function of survival. Keeping their heads above water was their modus in the broken and disrupted times they lived. They sought not to be party to a mutual interpenetration of opposites creating a temporary union until displaced by a subsequent dialectical product. The Dilution of Shanghai The Chien brothers symbolized a ramshackle China of few colonial interferences and a large degree of individual personal

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freedom not referencing any sort of process of history rooted in a dialectical struggle over what machines would produce a modernity enjoyed most by a particular sector of the upper class. Shanghai, and lesser concessions such as Tientsin and Amoy, were also sources of collective exception relying on British established multi-party foreign municipal councils whose role was to mind the shop and manage civil works rather than to introduce representative or explicit welfare measures for the benefit of the local population. Intended as make-do governments, these mercantile trade monopoly administrations were not replaced in China by an orthodox statist formation as the British East India Company had been by the Raj in 1858. Moreover, the explicit tension in Eastern colonial governance was between the perceived simplicity of mercantilist council rule obsessed by customs collection and backed by a garrison, and cooperative Crown Colony rule sweetened by autonomy tradeoffs — a mode of government more associated with Hong Kong and Singapore. Multi-state commercial council entities, precisely because of their diffuseness, replications, and disconnections, could be easily subject to interferences and were impotent to stop commercially and ideologically antithetical Chinese elites. When a council out East played musical chairs in the wake of an economic shock to its body politic, we can reasonably infer something was happening in the superstructure’s interface with the base and that an advantage had to be relinquished in order to preserve the status quo. The Shanghai May 30th Incident resulting in the shooting of a dozen anti-foreigner Chinese protestors in 1925 led to a

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trade boycott lasting until 1927. This was followed in 1928 by a successful resolution calling for Chinese membership of the Shanghai Municipal Council (SMC). The actual balance between extremes in a given colony or concession was determined by the selection or election of the governor, consul, trade minister, administrator, or plenipotentiary, as the case may be. The reactionary American Stirling Fessenden, “one of the bestknown Americans in the Far East” chaired the SMC throughout the nationalist turbulence in the late 1920s62 and was regarded as a staunch supporter of British colonial prerogative. Fessenden was replaced for a term in 1929 as chair by liberal Harry Arnhold who was unpopular with the British due to his tendency toward “civic affairs” reform, and after a year in charge subsequently was elected to the vice chair in 1932 and 1933.63 Despite alignments of British and American political interests, Shanghai’s diffuse governance arrangements and Chinese commercial energy forced the council increasingly to pivot between overtures to Chinese representatives and other measures to retain support for protection of their exclusive international commercial interests.

Culture and Civilization: Credit Where Due It had not always been a balancing act between East and West in China. In rebuffing British trade, which had occurred outside Qing imperial rules in 1755, a Chinese edict questioned: “The products of China are abundant; what need have we for the small and insignificant goods of the distant barbarians?”64 Only sixteen years after this comment, Arkwright and Strutt opened the world’s first water-powered mechanical cotton mill and the

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Industrial Revolution had begun. The Qianlong Emperor, having scaled and consolidated new heights of imperial power, could have no idea about how abundant the world’s trade would become, or how significant these new foreign devils would be in it. But his chiding tone displayed a long-forgotten confidence in China and Chinese methods of production. Tucker suggests that history in the materialist explanation “is the growth-process of humanity from beginnings to complete maturity and self-realisation in future communism”.65 The Chinese could certainly argue that they made many common consumer items to a much higher standard under a preindustrial mode of production model than did the British. Engels accepted this. No matter whether one refers to the “period of manufacture proper” based on the division of labour or the “period of modern industry” based on machinery, the existence in both of profits and rent as the unpaid portion of what a worker yields to their employer “obliterates the distinction between two great and essentially different periods of history”.66 We can speak of the relative superiority of China in 1755, in its banking, trade, and financial policies, or the quality of its consumer goods, because the Marxist growth process of humanity is not intended as a measuring gauge implying that the European system of capitalist industrial production and trade was superior to, for instance, Chinese pre-industrial massproduction manufacture. Rather, the intensity of exploitation of wage labour under the industrial capitalist model simply made it seem likely to be a brief phase in human history. Much of the prevailing discourse supposes that China needed industrialization to realize administrative and political

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modernity. We will never know what might have happened if Mao had lost the civil war, but China had always been capable of purple patches in mercantile wealth accumulation creating culturally advanced urban environments, such as Nanjing, which in 1400 boasted the world’s largest city population (nearly half a million people), massive fortifications, government offices, multi-storey buildings, sewers, and public lighting. All this was well in advance of Europe. The Chinese of the colonized Far East needed little tutoring in the accumulation of wealth under a mercantile or, later, an industrialized capitalist system. The best examples were their factory sector in Shanghai in the 1880s and Hong Kong in the 1930s, the commercial conceit of Singapore, the entrepôt parasitism of Hong Kong and Canton where the British offered a protectorate for Chinese business affairs in exchange for recognition of their monopolies in a given sphere of interest. When the British started coming to China in earnest — a hundred years into the Qing dynasty — it could be said that China and England were equals in civilization. The nineteenth century was to be a time of British international ascendency. Today, the economic marvel of China, and the rise of the East more generally along with it, declares the dormancy is over. The factor that made the Far East an attractive proposition for colonialists — inexpensive and plentiful labour and a modestly wealthy yet populous consumer base — has galvanized China as a unified polity. However, there can be no permitting a naïve observation that China, ultimately, embraced the capitalist model because it was superior or historically obvious.

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Conclusion To read the Eastern British possessions correctly, we must overcome our entrapment in an essentially racial belief that there are certain kinds of racism or exploitation in which we have a stake, and others that for no particular reason, we do not. It is just as bad to go to examples of British footholds in China and — without accounting for competing nationalisms — claim the racism of British rulers found there was emblematic of purposeful economic domination. Colonial authorities in China made an enemy race of bourgeois and communist nationalists, and rewarded Chinese loyalists, in order to purchase political space and time for their highly clustered, but far from hegemonic, economic pursuits. As with many an opening chapter it would seem that more questions than answers have emerged. Over the following pages the most pressing questions will be addressed one by one. The trio formed by Cobden, Bright, and Adam Smith demonstrated the expense of maintaining an empire for a handful of nabobs far outweighed its national return. If colonialism was only about garrisoning stolen gold mines or extracting maximum returns from rubber plantations, there would seem no need to indulge apparent autonomy when the imbalanced relations of production inside such core domains could be defended with guns. Judiciaries and executives, however, needed to play an apparent autonomy game of welfarism for polity loyalty in cases when resource extraction through gunboat violence seemed inapplicable. As Balibar observed, a technique developed of governing which increasingly distanced prescriptions of law

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from the realities of the relations of production both at home and overseas. I hope, at least, Althusser the old revolutionary would have heard out my occasional demurrer because it seems his best moments — when related to what the British did in Burma and Ceylon, Shanghai and Hong Kong, Singapore and Malaya  —  open ways to reading colonies that conceivably amplify his legacy, rather than read it down. How and why race infiltrates the relations of production, and the economic mode they dance around, are obviously issues of substance, as was the role of indigenous nationalism as a colonial motivation for apparently relative autonomy. This is especially the case if it is more than a rival form of racism and competes openly with a colonial power for control of a jurisdiction. In China, the colonials infiltrated and dominated particular segments of the local economy. In practical terms it meant that the bandwidth of British commercial or government decisional power in Eastern colonies could be quite narrow. British autonomy had, on occasion, to jump the fence toward what might be thought Chinese concerns. The colonials had, on occasion, to assert the existence of a contested subjecthood of local Chinese people and shore it up by tipping social benefits into it courtesy of the pragmatic pivot of autonomy. Higher ideals of polity, be they those of Chinese communists or British colonialists, or the KMT, had to be achieved pragmatically through strange alliances and ad hoc measures not greatly guided by previous examples. The British colonial offer bumped into and parried the measures of other contenders.

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It could not avoid the question of rent, yet the pro-tenant autonomy in their policies was informed first and foremost not by altruism, but a vain attempt to stem their decline in geopolitical relevance. What if colonial powers actively reduced the need for native envy through local social reform? What if through colonial imitation of mother country anti-poverty measures the British helped local people catch up? In the case of China, and several British dependencies throughout East Asia, the British did try to elevate the material conditions of the common people in the later years of the Empire. The best example considered in these pages was their intrusion into the social relations of production on behalf of tenants through the introduction of rent control. In many colonies outside of the Far East, the British claimed a special and exclusive prerogative for their mode of production based on their purported racial superiority. More important in China, however, was a hapless alternation by the British of counter-productive administrative racism based on rights associated with compulsory trade, and racially open land investment/populist public housing and other welfarist opportunities. The war of ideas inside British minds ultimately yielded a refined, non-racist strategy to counter Leftist and Rightist Chinese nationalism. The British developed over a time a purposeful, dialectic-busting method of governing, always in play until the very moment when an epistemic shift such as a world war, declaration of national independence, or a commercial strike and trade boycott forced them to make a reevaluation.

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By 1949, the era of the horsehair riding-crop, the white dress uniform, the open-air car and the privileged WASP in a pith helmet were over. In the face of what we can quite fairly call postcolonial corruption, the British — wherever they were not expunged or allowed to keep pretending — instilled native purpose through constructs of constitution, contract, and property. Despised in colonial times, suitable individualism braced by monitored elections became the name of the game. When the British spoke proudly of their rule of law legacy or the robust separation of powers in one former dominion or another — and they often do — they did so not of locales of democratic constitutionalism, but rather of those places where their lingering self-interest had not been totally subject to the law of diminishing returns. Being a familiar devil to a fragmented empire that once held a quarter of the planet’s population in its thrall is not an especially bad place to be.

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2 Reading Colonies via Property Policy

Introduction The experiences of British Far Eastern colonial jurisdictions comprise a unique set of historical circumstances for Marxist theory, or as Ferro put it, “it is the Far East which has responded to the challenge of decolonization and of imperialism in the most original way: by going beyond its precepts, while holding onto some of the forms of its own modernity which is not necessarily of the Western type”.1 The purportedly superior capitalist industrial mode of production and its attendant social relations did not defeat or displace the pre-existing nonindustrial Chinese capitalist mode during the semi-colonized era of China. Rather, after 1842 European industrial wage labour as a mode of production conditioned by free-market industrialism encountered Chinese wage labour capitalism conditioned by Confucianism and feudalism. The conflict of the great economic systems of pre-machine and machine age capitalism was quite

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unprecedented in scale, and to the surprise of many, it produced a scoreless draw, not a Western win. The British refrained from an all-out colonial conquest of China. As national republican hero Dr Sun Yat-sen pointed out, had the British raised a Chinese army in 1860 and taken advantage of the disarray of the Chinese political leadership, a conquest of the country “would not have encountered any difficulties”.2 Indeed, in the British camp, Lord Palmerston saw no need to conquer China. By forcing open five treaty ports in 1842 as well as the Yangtze ports in 1860 — and restricting Chinese import duties to 5%  —  the British relied on their inimical “free trade” policy toward the Chinese in preference to one that would require their military expenditure in India to be reduced to dangerously low levels. Marx believed transformation from one mode of production to another was an inexorable process: “The windmill gives you society with the feudal lord; the steam-mill, society with the industrial capitalist”.3 When the British partially industrialized China, however, there was no widespread transition from one form of production to another or emergence of a newly enfranchised middle class as had been the case in Britain. By 1880, China had a scatter of coastal capitalist industrial footholds amidst a vast hinterland of pre-automated workshops and mercantile commerce based on intra-state trade or feudal agriculture. In this chapter, I contend that British colonial property policies were key sites of autonomous control strategies, if not the only ones. The first half of the chapter looks at the

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discrediting claims made by many critics of relative autonomy before nominating the key, property-related areas in which apparently autonomous governance practices became recurrent throughout the British Far East. This will pave the way to the first of the evidentiary chapters, discussing the characterization of rent control as a dialectical inhibitor in chapter 3. But next, I argue that much of the criticism of relative autonomy takes aim at an idea that is mystical, populated by self-referential American or French examples, and almost entirely unused to contested deployment on colonial shores.

The Theory and its Critics My argument is that law, in the form of property policy, kept colonial administrations in China in charge by alternately deflecting bourgeois and subaltern nationalism at points when their claims seemed to presage decolonization. Althusser’s relative autonomy discourse posited that law played a mediative role between the economic base and the political superstructure which maintained the viability of capitalism in the last resort. It has been called pejoratively “neo-doctrinalist”4 (America), reference made to its “haunting … by scientific pretensions”5 (Europe), and its trying to present itself as “the one true faith” (Britain, of course).6 Boyer thought there must be something deep provoking the reaction against Althusser: “With so many vivid works on the wrongness of Althusser, his most remarkable legacy will be the way he collected the most distinguished haters and their works of most memorably lucid hate”.7 I rather think that, although the old pied-noir worked almost exclusively on

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the theoretical plane, he is done a great unfairness by his critics. This is especially so in light of his open admission in Reading Capital that irrespective of whether his ideas were speculative or concrete philosophy or an inversion of one into the other, he himself recognized he could not escape the “absolute limits” imposed by empiricism.8 As someone with a legal training, I have my particular doubts about Althusser. He was, for instance, never quite explicit about concepts crucial to relative autonomy in legislative and judicial practice such as “the index of effectivity” and “derivatory effectivity”.9 Balibar did somewhat better when he explained that indirect effectivity of the base on the superstructure was a product of the “regional structure of legal and political forms”.10 But that remains a morsel. There are many in the academy who disparage relative autonomy in its modern Western connotations, and others will resist its retasking in British colonial domains. My theorizing will surely be accused, if not for incorrectly repurposing relative autonomy as a deliberate policy to counter indigenous nationalism, then for presuming its late colonial Far Eastern incarnation or its role in quelling dialectical materialism. Much of the American positivist critique of Althusser, however, was a witless reaction to the determinist strains of Spinoza, not to mention the resonances of Lenin and Marx in the old revolutionary’s thoughts. Such strains come through most clearly in Reading Capital: “‘The subject’ plays not the part it believes it is playing but the part which is assigned to it by the mechanism of the process”.11 He says much the same in Lenin

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and Philosophy. Bourgeois historians, political economists and sociologists “cannot suspect the extraordinary power and variety of the ideological grip to which they are subject in their ‘practice’ itself”.12 This, of course, referred to the “inescapable” occupational specialization that Marx and Engels had written about which sees pilloried and impoverished any person who dares act or speak out of turn.13 It is not surprising that law academics in the United States, quite particularly, responded heatedly to the charge of being deluded pawns of their cherished economic system. Although the determinism present in Spinoza gives limited comfort to some, the unimportance of individual free will in his construction of history reads down many of the tenets of life that Americans hold dear, including the sanctity of the individual and his or her right to pursue happiness, freedom, and private property. Without especially trying to, Althusser decries the widely-held driving forces of American history and reputed identity. To Spinoza, people live in a chanceless world in which the individualistic pursuit of happiness is a monumental confidence trick.14 An individual can satisfy some or most of their desires, but such satisfactions obscure the externally generated causes of their desires. The idea of people as puppets has had a long provenance in determinist philosophy but the concept not only works in cases when a government policy position is a shadowy bribe seen exclusively by some postmodernist with a gift for decoding. Rather, people can also knowingly be lulled into trading off political independence by accepting short and medium-term concessions. Interpellation works regardless of whether the subject self-constitutes as a subject by responding

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to an issued command, or acts in a way that attempts to avoid a command or offer. The classic example of that in post-war Hong Kong was introducing rent control on all existing residential buildings; landlords constituted themselves as constructive citizens (what the colonial government wanted them to be) by building new dwellings to avoid rent control. As rent control was a widespread and socializing post-war policy across the Eastern Empire one can see judges’ actions for what they were — (1) a faithful, if philosophically repugnant, application of pro-tenant executive policy, or (2) a nuanced occasional siding with landlords to avoid legal absurdity or, (3) a postcolonial judicial realignment at the behest of a compradorial ruling constituency using upper middle class interests as a metaphor for political independence. That each of the categories can be demonstrated in the British Eastern Empire suggests that autonomy working ultimately to progress imbalanced relations of production such as would see intense dialectical friction between native political independence and colonial extractive prerogative prompt a new politico-economic formation. As an explanation of the law and its purpose, relative autonomy has been derided by positivists and all but forgotten by postmodernists. It is mistrusted by liberal historians, too. After reading the peak of his influence circa 1976, Althusser’s sharp fall from grace was in part caused by his infuriating reliance on abstraction and general refusal to engage with forerunning philosophers except Marx, as given effect by Lenin, and Spinoza, reimagined as being godless. Althusser was not interested in semiotics to the same extent as Derrida. Nor was his work open to artful redeployment

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across disciplines like that of his student Foucault. Yet he almost single-handedly proposed a means by which there could be drawn a line under reductionist Marxian ideas about law as a crude instrument of the ruling class property interests. He did so without resort to alchemistic descriptions of law being intertwined elements of hard and soft power or asserting that its meaning was the difference between sign and signifier. The groundwork for using elements of autonomy in colonial contexts has not been greatly built on except by Robert Young who has identified the Maoism in Althusser’s approach, which he describes as pluralistic dialectical materialism.15 Young, in particular, elevated the concept of colonial conquest in Althusser’s writings as producing a disjunctive history within a colony without necessarily disturbing its internal social/political dynamic.16 If indeed colonial history can be described by the lags in time between metropolitan and colonial temporalities, it has much to recommend it, because such an idea speaks directly to older and newer modes of production within a colony producing an economic dialogue that actively fights over which can lay claim to modernity. Even accepting the understatement of Spinoza by Althusser, why the CLS (critical legal studies) movement endorsed Althusser’s technique without explicitly citing him is an interesting question in its own right. It seems strange that he is implicitly there but not named as the inspiration for a great deal of American critical work. For the Americans, Althusser was an unacceptable manic depressive, a French Algerian radical, and a revolutionary. When taken out of his continental milieu, there could be little intellectual generosity toward his revolutionary implications because his legacy was totted up at the very time

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that political transformation in the West seemed least possible. In Reagan’s America and Thatcher’s Britain he was instead read as an embattled malcontent with a taste for neologism. His having become an almost unspeakable name in France only seemed to confirm that his eclipse was deserved. No doubt there is a personal element in the rejection by many of Althusserian thinking. As Balibar pointed out, in France “there is an absolute taboo suppressing the name of this man and the meaning of his writings”.17 He has not fared much better in the United States where he is little more than a Derridian presence behind the works of Karl Klare18 and Duncan Kennedy.19 The early 1980s American literature on relative autonomy was reframed for American conditions; it lost its proletarian class position and revolutionary implications. Dominated by a slim brace of CLS-types not explicitly crediting Althusser, they wrote about autonomy in the jurisdictional contexts of domestic law-making institutions or the psychological basis of judicial choices. They thus limited relative autonomy as an idea capable of a trans-jurisdictional analysis such as a colonial study would imply. To the extent that relative autonomy had an offshoot movement, it was almost entirely an American affair. Kennedy, in particular, put the development of autonomous judicial consciousness into opposition with frontier American classicism which he felt was defined by “the assimilation of a great deal of law to a single subsystem dominated by the concept of a power absolute within its judicially delineated sphere”.20 The enigma of my study was that colonial judges who were expected to behave

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in the mode of classicism were told by colonial governments to follow their post-war Liberal lead in order to slow down decolonization or to assist in handing over a “civilized” constitutional legacy. Instead of giving clarity to Althusser’s abstractions by giving them examples, Kennedy instead took his analysis in a mystical direction. Despite his concession to formative sovereign absolutism, an angry mob of positivist sceptics took aim at what they regarded as the vagueness of his concept of “consciousness”. They rejected his ideas that ideology is an unconscious guiding hand in the process of judgment or that litigants internalize their own legal domination. Kennedy, like all idealists, thought wrongly that by keeping “judicial consciousness” purposefully vague, he would prompt debate about its grammar and contents. Sensing in relative autonomy some sort of Gnosticism, U.S. sceptics waited patiently from 1970 onward for a local seer to lambast. In 1978, Karl Klare finally emerged with his American case for autonomy. His radical reading of the Wagner Act was deemed “highly improper” and, in particular, his argument that the federal judiciary deradicalized the act’s offer of state interventionist collective bargaining was regarded as “historically unsupported”.21 Of course, the critique made of Klare was done so as if the dubious positivist claim of the common law being “selfcontained, apolitical and inexorable”22 is itself particularly well evidenced. It seems that what made the debate so vehement was that both sides fought using the same technique of unexamined hypothesis-making for the same high ground, yet neither thought

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it should have to do so, exactly. This is why evidence — patiently gathered and carefully deployed — seems to have been rather wanting in the dismissal or endorsement of relative autonomy as an explanation for historical acts of government. Klare’s exculpatory efforts were decried as heretical because a particular kind of post-classical American orthodoxy was at stake. His sceptics were for the most part easily ruffled bookworms of a type seen cheerlessly filing through the portals of many Western law faculties. They were not to be taken in by this Althusserian trickery. Their spotless, crisply ironed suits appeared impervious to interpellation by any ideology other than, say, Kelsen’s positivism. On first impression, Kornhauser appeared to react generously to relative autonomy. He warned against a temptation “to abandon the effort of disentangling the complex factors that determine the content of the legal order” and suggested that a way forward was to “try to integrate external and internal causes into a coherent account of legal evolution that accords causal significance both to ‘external’ factors and to legal reasoning”.23 He was a positivist who felt mocked by Althusser’s implications. He ultimately held fast to orthodoxies he thought worthy of preservation and tried to give a measured, diplomatic response to poststructuralist Marxism. Judicial reasoning was for Kornhauser not an unconscious ideology measuredly arcing between a bandwidth provided by superstructure and base. Rather, in the line of Kelsen, it was an externally derived right of judges and legislators to decide

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by relying on an unassuming act of sovereign will elevated to the status of a basic norm. Thus, for those like Kornhauser extending Kelsen, judicial reasoning is a popularly sanctioned distributive economic or social control norm prescribing human conduct. Kornhauser’s basic argument avers American conditions were more complex than Althusser could begin to imagine. Yet this ignores the obvious: every time the minimum wage is raised or new legislation on workers’ compensation is passed, the continued reproduction of capitalist social relations of production must occur somehow, even if the likes of Kornhauser decline to name it. Capitalism absorbs acceptable grievance and progresses incrementally. Its venerated status among its defenders has more or less relied on an idea that the industriallegal system was completed and perfected in the 1950s. In the American lexicon, its critical scholarship has thus, by and large, been directed toward domestic institutional arguments, not to the interface of race or gender or especially class, and certainly not overseas to nations developing in the wake of colonial experiences. How much of an American positivist’s critique of law’s relative autonomy is, then, a disagreement with any constitutional system, for instance, requiring judges to protect a tenant’s contractual interests as a matter of public interest? When autonomy of law justifies as valid a government or judicial practice constraining or redistributing private property, positivist theorists feel nervous and write their reactionary words. But as Kennedy alluded, the same process can equally

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lead the law — as an ideology situated between the materiality of state institutions and the immateriality of the unconscious — to promote free market approaches to social ordering. Klare’s thesis was: what if the New Deal judiciary faithfully followed a legislature’s lead and allowed state interference in the content of collective bargains? Had it done so, managerial prerogative as a determinative cause of U.S. domestic history would have been put squarely on the radar. Klare’s reception by the academy would have been quite different had his theoretical reading relied on a laissez-faire example being reigned in quite decisively. Instead, by saying a duty to collectively bargain was meant to equal state arbitration, but it withered in the individualism of American circumstances, he only highlighted its widely-believed isolation from determinist rules of history. British colonial rent control as an element of autonomy in the Far East post-war era rests on no such “what if” argument. It considers the laissez-faire values of colonial judiciaries in the face of state mandated rent control. Landlords using property charges to profit through rental income were given no sympathy by governors or, for a time, allowance by their entrusted judiciaries. Yet evidence of judicial dissonance about the task of rent control in Hong Kong (1945–8) and overt detachment from its socializing premise in Ceylon after 1950 support an inverse case for autonomy that requires neither Marxists nor positivists to take a leap of faith. As Post saw it, theorists have neither explained the extent to which the law is relatively autonomous nor even spelled out methods by which relative autonomy is maintained.24 Post also

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seems to be among those who sense it is only religious faith that keeps belief in relative autonomy plausible to its adherents. Its trouble, apparently, is its lack of an empirical basis. Perhaps the best evidence produced in this text came from Basnayake J in Ceylon who went, in 1947, from being an animated dancer around the British maypole of tenant protection to, in 1950, worrying about the legality of a judicial order giving a tenant more time than their lease allowed for eviction. Judicial autonomy in the last instance was deferred by the British and licensed by the Home Rulers once in government as a permitted deviation from the old solicitude. Members of the plantershopkeeper government comprising the political superstructure did not have to wait too long until the last instance was reinforced with the tide turning back to landlordism; they more or less got it with their political independence. Baxter maintained that one of the strengths of relative autonomy was that its formula seemed to offer legal theory a “way to negotiate between doctrinal formalism, on one side, and reductionist instrumentalism, on the other”.25 In a colonial state the judiciary can be seen very easily though a lens of reductionist instrumentalism. According to received wisdom, it did not usually decide that the executive or its rubber stamp legislature had acted in a manner ultra vires. Yet, this is why detecting judicial autonomy in a colonial state is not for me only a project involving mediation of formalism and reductionism. If autonomy flickers on in a contrary-minded judiciary despite a socializing political environment, it must be encoded in law somehow. In the crests, zero crossings, and troughs of judicial autonomy, law keeps on pleading for individualism and private

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property despite counter-narrative political imperatives. It conceivably becomes a distributive mechanism surprising the new tenancy regime only when it absolutely should. The autonomy of law could be a little better regarded in positivist legal circles than it is because, as Post suggested, “it recognizes that law must first be understood in its own terms, not the terms of some other field or discipline (such as politics or economics)”.26 I differ from Post; I see autonomy as profoundly political. The state cultivates a political appearance of autonomy either by applying its rules to let the underdog win occasionally or ensuring that captains of industry do not always win. But Kennedy was not ignoring the complexity of influences on law by settling for characterizing judging methods; he was going quite defensibly to the junction point between legislators and litigants. In Hong Kong and Ceylon what judges decided, and how they reasoned, was not, as a positivist would have it, a matter of them co-opting sovereignty to exercise community-aligned individual will, given a multitude of social and economic factors. Rather, it was to do with how communitarian social values could be given legal limits to enable decisions to be made on the few tenants who would fail under a public law with loaded referents established for their benefit. In the final instance, the law could neither be absurd for a moment nor tenant-loving forever. So much for Althusser’s many critics in the worlds of American law and political science. None has managed to wholly impugn relative autonomy of law as a distributive mechanism

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by which governments, and their aligned apparatuses, maintain capitalism. Much of the criticism has been in response to vague and inward-looking contributions of Klare and Kennedy, or has branded autonomy of law, as a third power distinct from economics or party politics, as mystical or pointless because it seems to feed dialectical materialism but not overthrow capitalism. My conception of relative autonomy has not yet found critique among the positivists, unhappy or otherwise. My interest in it as a historical, non-wholly European, and deliberate policy of government or judiciary sees it transposed to colonial jurisdictions where it is pushed and pulled and unsettled by foreign hands. Autonomy was made to do what it should to make an uneasy marriage of productive modes work; if it explains anything it does so unambiguously and without need for religious faith. What, then, were its markers? How did the process give itself away? My training is that of a lawyer, and property law has been my particular focus. This bias shows through in the markers I seek and the importance I attribute to them.

Particular Property Techniques Having given a full airing to those who reject relative autonomy as a political-legal device mediating base and superstructure, my analysis turns now to my positions on how and when autonomous measures can be read as property policy constraining dialectical conflict between syndicated British nationalism and indigenous Far Eastern nationalist or irredentist claims/prescriptions. Young made the point that nationalism was rivalled only by religion as a force of social identity and

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cohesion; he also noted that it seldom spoke for an entire polity but rather was the instrument of capitalist classes to consolidate their position.27 In the British spheres of influence in China, the foreign ruler had to negotiate with the revenue-raising demands of bourgeois nationalism expressed by the Kuomintang and followed by those Chinese classes engaged in pre-industrial pursuits such as landlordism, non-industrialized manufacturing, or mercantilism. In time, as communist prescriptions for a China free of imperialism grew in strength, the balance needed to retain colonial power involved subaltern negotiations too, and this was not limited to possessions in China. Thus, although the Kuomintang could only claim a modest representative polity, and uncomfortably for the British demanded the return of Hong Kong to China, its strategy to hold its position was not a nationalism explicitly calling for foreigners to depart or demanding China’s immediate political independence. The KMT sought rights, in effect, to a respectable political sovereignty through charging foreigners rent, controlling customs duty in all the old treaty ports, and avoiding the flight of foreign capital. These nationalist claims were consistent with the mixed modes of production in foreign-possessed China producing a disjunctive modernity that might have been impressive to Chinese eyes viewing the fluming mills and impatient lorries of Shanghai, but was ignored by the colonials when it took the form of the world’s most finely-finished, and constantly improved, fabric or ceramic production. The most tangible, and jointly agreed, forms of the disjunctive modernity of China were the legal and political distributive mechanisms relating to property in British dominions.

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Rosa Luxemburg’s work on accumulation and imperialism, as a gloss on dialectical materialism, has tended to produce an idea that capital imperialism was deeply and similarly felt in all receiving colonial states, or that it obliterated every economic system that lay in its path. The Marxian analysis of colonial relations of production has not developed very much because it remains a story of what “we” did to “them” rather than how little “we” could actually dominate “them”. Dupre and Rey provided an example when noting that pre-colonial “lineage social formation” was dominated by the “lineage mode of production” and that, post-colonization, “the object of the colonial period … is to introduce the domination of the capitalist mode of production at the very heart of the colonised society”.28 To his great credit, Godolier disputed the thesis of dominant Western capitalism in nineteenth-century China. He questioned how the Asiatic mode of production became associated with working the soil, or a serf class subject to forced labour, and that such items were evidence of “a somehow unfinished transition which entails slow or stagnant development”.29 In particular, the influence of race and racism in the historical colonial narrative of China has had to make concessions that capitalism was unhappily grafted or located in opportune places. But it did not replace or ride roughshod over the pre-existing republic of artisan workshops, kilns, and dye works. This preserved Chinese self-esteem inestimably. Indigenous nationalism was on the front foot in China — as a convincing antithetical philosophy to colonialism  —  in a way that European captive states in Africa or the Middle East in the nineteenth century could only dream about. The effect of Chinese nationalism on colonial administrations in the Far East has been little understood.

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I contend: there can be seen in the Far East glimpses of welfarist rebalancing of colonial social relations of production (1925–41) through use of measures including, but not limited to, rent control, public housing provision, schemes of statutory tenure, localized Chinese opportunities for land improvement, and residential segregation abolition. Cooper and Stoler suggested a similar line when asserting that in the colonies, “social reform policies were invariably derived from a tenuous balance between programs that would bind the interests of specific groups to the colonial state and policies that would maintain a range of cultural distinctions designed to curtail and contain the aspirations of those to be ruled”.30 I would go further. I see in the reversion to laissez-faire rent under the post-independence judiciary of Ceylon, or the paranoia of the British to mistakenly extend land improvement opportunities to the proxies of the Kuomintang in Hong Kong, clear evidence that social ordering through local, uncontaminated modes of production was alive and well in the Far Eastern colonies. The British were often giving hand-outs to subalterns for their political loyalty, but this did not mean that local bourgeois elites failed to see the social ordering implication of such policies, or failed to demand a piece of the action themselves. British colonial governments were competing with local bourgeois cliques who could possess substantially their own means of sustenance through their fortunate location close to their own mode of production. The British used property policy as a means to negotiate timelines of decolonization in Ceylon, Burma, the presidency of Madras, Singapore, British Malaya, Hong Kong, and, to no

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extent after 1949, in the Treaty Port concessions of China. Let us work through a few of these examples of property policy as levers on historical progress.

Rent Control For Marx, rent was “the primeval form of surplus labour”.31 That is, before a tenant could enjoy the fruits of his or her labour, subtraction of rent by their landlord habitually occurred. There can be little doubt about what rent describes about the social relations of production, or for that matter, the shell game also known as the extraction of surplus value. Hence, when a colonial government enacted a rent control measure it contradicted the normal laissez-faire modus, not only of colonialism, but the established role of the government back home too. In the post-Second World War years, by freezing rent, making it independent of market forces, introducing indefinite tenure and low cost public housing, colonial administrations of the East offered an interpellating invitation to citizens to constitute themselves as statutory tenants in order to stave off the appeal of communist political positions and prod bourgeois nationalist exponents into muted positions on the timing of decolonization. Rent control legislation required colonial executives and judiciaries to thread a policy path between moderate decolonizing expectations of Eurasian commercial elites, whom themselves were landlords, popular communist and reactionary nationalist agendas, as well as investment security/extractive imperatives of mother country investors. Rent control, however, was a

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centrepiece policy that had different implications in each British colony in which it was adopted. On conclusion of hostilities in 1945 the British twinned rent control and property compensation as tools of gradual decolonization in Singapore/British Malaya where “the King’s Chinese” received kampong redevelopment and ample war loss and damage compensation. Although newtown public housing (in post-war developments)also received a huge impetus in Hong Kong, the nationalist KMT-dominated factory clique in the colony received no compensation for its losses because an unambiguous signal of non-decolonizing intent was needed, and it had long ago been decided that bourgeois republican irredentists were not to be trusted. Kennedy was clear that autonomy in the practices of a judiciary or a government was not inherently Left or Right in orientation.32 Hence, his idea of a prevailing “consciousness” was a particular psycho-political alignment taken by legal institutions in a particular time. In a precarious colonial setting, countering a credible nationalist independence agenda demanded recalibration of housing policy into a pragmatic Leftist inducement for the political passivity of labourers. Only bringing the floor up would achieve self-perpetuating colonial relations of production then and into the future. Such policy could also be relied on to stymie antithetical irredentist prescriptions too. A sudden state impulse toward tenant benevolence, however, cut across traditional political objectives of a judiciary — most notably protection of private property and its free alienation by a protectorate of petit bourgeois rent seekers. Judicial autonomy, then, took form as an interpretive mediation of statist strategic

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social welfare measures; a silver lining for landlords and property developers. Althusser cautioned against seeing any kind of political independence of action as if in vacuo and that the key question is “the type of dependence that produces and establishes [the] mode of relative independence as its necessary result”.33 Had Hong Kong’s returning British government in October 1945 implemented the old dependent mode it would have meant ignoring the decimation of now-scarce housing stock by the Japanese, the ability of landlords to charge what rent they liked, and the influx of tens of thousands of desperate refugees. Rent control looks like relative subaltern independence from landlordism but, seen in its clearest light, was a realization that dependence had to be sacrificed for the vital example of public order maintained by reason rather than rifles. Relative autonomy can be demonstrated as an apt description of colonial legislative agendas in Hong Kong, Burma, Ceylon, Madras, and Singapore/Malaya. Bringing forward post-Second World War rent control/statutory tenancy demonstrated legislative autonomy from local petit bourgeois landed factions and offshore investor interests. Yet although rent control was a powerful tool in negotiating the timing of decolonization in some places such as Hong Kong and Singapore, it was not in others, such as Ceylon and Burma, where the demand of local compradorial bourgeois cliques for rent laissez-faire seemed to hasten the British departure. Abolition of Residential Segregation The effective abandonment of residential, if not recreational, segregation in Hong Kong (1923) and in Shanghai (1853) were

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marked property-law examples of epistemic breaks in those communities that were well understood across the Eastern Empire. Urban segregation was colonial totalitarianism based on racial lines justified by appealing to Europeans’ health and dislike of crowding. Its abandonment formed part of a broader autonomy strategy employed by many Eastern colonial governments invoking new-town public housing welfarism to check communism, and promoting a racially open land development strategy to cauterize bourgeois nationalism. Only a tiny minority of Hong Kong land area was subject to racial segregation of residential land. Abandoning residential segregation could be trumped up as a reformist sign of the times, but it was nevertheless a significant symbolic element in the autonomy palette. Hong Kong took longest of the two possessions to formally renounce enclavism, but it had been found in an 1875 government report to be bad economics because it drove up rents for scarce European housing. High rents for undersupplied European housing should have encouraged new enclave builds but because only a fraction of the colony was populated by Europeans, and they could only live in certain places, house resale profits on leaving the colony after a sojourning stint were actually unappealingly low. Repulse Bay was opened for development in the mid-1920s on non-racial lines and, by 1923, plans for a new residential enclave on the Lower Peak Road were shelved by the government as impractical (chapter 5). In Shanghai in 1925 when May 30th protesters cried “Take back the concessions”34 it passed for an expression of republican nationalism, yet was a statement that Americans, British, and French residents could not really understand. Since the

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terrorization of local Chinese by the Small Sword Movement in 1853 (the Taiping Rebellion) they had been permitted to live around and in the concessions in affordable terrace-style housing.

Commercial and Land Improvement Opportunities Racially open land improvement settings in Hong Kong were interpellative because they were an offer by the colonial administration of domiciled colonial citizenship which was, although drained of political power, a form of mutually beneficial attachment that the British could rescind if its Chinese beneficiaries played both sides of the political fence too often or too openly supported an unduly expedited irredentist agenda or foreigner defenestration. There was greater use of residential and commercial land opportunities as a way to get traction on locals in Hong Kong (chapters 4 and 5) than was ever the case in freefor-all Shanghai where the autonomy program was diluted by tripartite constitutionalism. In Shanghai, urban Chinese in the late nineteenth century took to the concession’s benefits of reticulated water, gaslit streets, and, later, electricity. These benefits were enjoyed without having to offer political passivity to the British. When in 1912 the ring road wall was demolished, such municipal improvements were extended into the Chinese-ruled parts of town. The autonomy narrative of Hong Kong more actively tied public amenity to private improvement and political loyalty. Shanghai and Hong Kong had both long enjoyed racially open settings regarding the acquisition and disposal of

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residential property. In Hong Kong, improvement of land was particularly important to the local social contract. Restrictions on immediate resale of residential property were constraints on speculation in non-improved land and non-domicile rent seeking. They were the primary tools by which the British tried to anchor and win over upper-middle class Chinese elites without taking the chance of inviting them into government. A series of unequal treaties beginning in the early 1840s gave foreigners the right to possess and oversee manufacturing firms in the treaty ports. The British and other foreigners in Shanghai, with modern accounting practices, venture capital, and large scales of economy, competed vigorously with Chinese business concerns from the mid-nineteenth century onwards. British, and other foreign interests intensified their competition not only in commerce and finished goods, but entered domains including industrial production and capital investment. Shanghai and Tientsin became commercial free-for-alls in which Chinese governmental interference in foreigners’ business rights would not be tolerated, but outside of the monopolies there was plenty of space in which Chinese hongs flourished. In Shanghai, colonial governing autonomy was, from the outset, compromised by foreign firms rule-making on the unalloyed strength of their treaty rights in a way unimaginable in more buttoned-down social contracts such as those on offer in Hong Kong or Singapore/British Malaya/British North Borneo. When private opportunism leads public policy, autonomy and its tradeoffs stand no chance of influence; when there are no interests but commercial ones, welfare measures are much more likely to be philanthropic. Shanghai stands as a solid example of that.

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Offering a Choice of Law Althusser declared that, in the philosophical fight over words, some were “the site of an ambiguity” and thus subject to intense disagreements. In the Far East, “extraterritoriality” was such a word, not because Chinese contested its meaning with the British, but because the colonial power used the word in several quite different ways. However, the inherent subtleness of extraterritoriality and the domination of British law in certain commercial spheres performed a crucial role: interpellation of selected Chinese subjects as sufficiently British in outlook. The standard Far East creed of extraterritoriality maintained that British law covered British residents and Chinese law, Chinese. But the reality was that British laws often extended to Chinese when the British wanted them to and Chinese, on occasion, opted into the protection of British law. In Shanghai, European diplomats of all stripes sold passports to Chinese nationals so they could avoid Chinese law enforcement. But such measures had reciprocal limits, especially when unnecessary uprisings could be provoked by the insult of Chinese law not applying to a culpable British subject. On several occasions in the early nineteenth century an English man or American committed an outrage against a Chinese person, and the internationals, after some bluster gave their man up for execution under Chinese tenets of criminal justice. In Hong Kong, “extralty”, as it was known, was not a metaphor for legal separatism, or corruption, or a pressure release. It was buried beneath all-encompassing British administrative power that often conferred considerable commercial advantages to local, favoured Chinese. Hong Kong

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was not a treaty port but a Crown colony. British laws and regulations on everything, including investment in land, applied very much to local Chinese and, with the significant exceptions of civil liberties and political representation, did so greatly to their benefit. The British insisted that locals stick to business, comply with British law and stay out of politics. Taking regular soundings for nationalist fervour among the landed Chinese bourgeois kept them to their promise. By following British law, local Chinese had access to intra-empire tariff benefits, too, even though they were not manufacturing the goods in Hong Kong but merely “finishing” them.

Rearguard Measures Chapter 4 is concerned with the leased north east China colony of Weihaiwei. The British, although leaving it in 1930, and retaining a naval base at adjacent Liugong Island under lease until 1940, used international treaty rights to advocate on behalf of private British state property and the property of British residents. This resort to international law was what I term “rearguard autonomous measures” as they were trying to hold back dialectical change out of fear of Chinese nationalist, and later Japanese, property law regimes (chapter 4). In Hong Kong in the late 1940s the British used negative, politically-oriented property polices on where land could be purchased to keep the KMT in its place (chapters 4 and 5). It was a measure of how binary colonial policy was on Chinese nationalism that, on the collapse of the republican National government in 1948–9, the British were without a foe in Hong Kong and quickly forgave the KMT its debts to them.

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Conclusion A positivist academic’s role is to tirelessly repeat and refine their lessons until a comprehensive web of laws is produced. It is easy to understand why some felt rudely interrupted by the appearance of relative autonomy at the end of the late 1960s, in particular. It should certainly be viewed quite cautiously, but not on account of it being some sort of shortcut to mapping law or history’s domain. There is quite a lot more work in seeking the autonomous why of law’s application, precisely because the positivist why is most commonly thought to settle for an explanation of how. To disclose interest in relative autonomy was never to make one’s life easy, and its perception as an ambitious and lightly exampled theory makes it uncommonly easy to attack. The colonial scope of my study aims to address this to some fraught measure. The political technique of relative autonomy could not be merely welfarist amelioration in the Western sense in the colonies but operated in them to frustrate dialectical materialism. Out East capitalist wage labour as a mode of production could never be completely “enthroned”35 as Tucker put it, without demolishing pre-industrial capitalism of the Chinese bourgeois. Thus, relative autonomy in public policy extended the life of colonial governments through suppression not only of proletarian and bourgeois nationalist options but any temptation to militarily annihilate the pre-existing, and on occasion, the competing, pre-machine mode of mercantile and workshop capitalist production. The British colonial world was riven by an idea that the capitalist mode of production was superior even if its execution

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was problematic in particular colonies. A colonial power’s right to maintain political authority was due to their high position on the scale of civilization as implied by the ingenuity of mechanization and the economic wealth accumulated by scientific mass production of cotton fabric, vulcanized tyres, and guns. There developed a powerful myth that there could be no political modernity or claim to civilization without first having gone through the process of industrialization. But China proved to be a huge exception. Out East, some Chinese copied the Western industrial model in the late nineteenth century and prospered. Many more Chinese, however, participated in a millennia old non-industrial system characterized by mass-production and mercantilism to satisfy an almost exclusively domestic market. Its continuance in trying times ultimately allowed the KMT and the communists to roll back a mighty Japanese invasion (1937–45) and saw the communists triumphant in a civil war with the U.S.-backed bourgeois republicans (1927–49). In the example of Shanghai, colonial political autonomy expressed itself thinly, rather than thickly. Highly pluralist, semi-colonial concessions with a surplus of political choices, and acceptance of the anarchy of Shanghai gave rise to a meek governmental autonomy based on co-opting Chinese local representation and changing the share of customs duties in the wake of violent and disruptive upheavals such as that of 1925. Other Eastern possessions such as Hong Kong required a more deliberate architecture of policy measures because the challenge of nationalism could be met more effectively that way.

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Part of this chapter tried to answer the critical question of why Althusserian thought is so poorly regarded these days. It contended that the CLS movement in the U.S. in the 1990s could not protect the relative autonomy project from its derailment by sceptical positivist receptions so it became veiled instead. Its critics presented a complaint that law’s complexity and indeterminism made relative autonomy speculative. By explicitly staking out the property law terrains in which I believe relative autonomy in part expressed itself, it is hoped that the argument for the concept can rise or fall on the evidence supplied. Autonomy in the context of colonial property law not only found effect as legislatively instructed judicial refraining from economic determinism, but as a governmental choice for welfarism in a particular era when a great political imperative existed in achieving a graceful exit from imperialism. Our first example is the British management of decolonization through rent control.

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Introduction This chapter explores judicial autonomy in the context of colonial property law. Kennedy freely accepted that autonomy in judicial consciousness cannot be proven by reference to a single law case and, further, judicial activism had neither an inherently conservative nor progressive character.1 Cases on legislated rent control in British Eastern colonies 1945–50 would seem a decisional terrain significant enough across and within jurisdictions to offer local and comparative insights into how and — more importantly — why judicial autonomy manifested to the left. An exploration of relative autonomy across time and colonial jurisdiction could help restore the debate about it to a position of prominence such as it enjoyed in the mid-1970s in Europe and the early 1980s in the United States. Few legislative texts have a social-democratic purpose more obvious than those on rent control. For this reason, to survey

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legislatively mandated judicial practice on statutory tenancy in any jurisdiction, colonial or otherwise, appears to be a quite unpromising project. It is argued here, however, that relative autonomy of an economic base from its ruling superstructure can, as Kennedy suggested, be just as well evidenced by elites winning out occasionally under socializing policies as in cases of tenants, every once in a while, snatching redemptive morsels from the propertied elite. This chapter answers a question: can law’s relative autonomy be spelled out of judicial practices toward landlords and tenants in the British Eastern Empire after the Second World War? More specifically, I ask: what evidence exists, if any, of Althusser’s “reciprocal action”2 by the political superstructure on the economic base of these late colonial societies? Across the British Far East, judicial pivots to the left and the right countered the values of emergent nationalist and independence movements in the post-war years. Autonomy can be seen as a technique of judicial and governmental practice used purposefully to disrupt dialectical materialism, even to the point of entrenching capitalism in the longer term, and, along with it, neocolonial ways of perceiving the world. Colonial rent-seekers have never engaged in productive capitalism and depend on ingratiating themselves with the state authority. Political disruptions such as war, an economic downturn, or a drought make their means of amassing wealth especially tenuous. As members of a bellwether class, they can only rule as part of the superstructure when political sympathy runs in their direction. They are vulnerable in recessionary times

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to the ordering and reordering performed by the executive to maintain a popular mandate. Colonial welfare prescriptions from the mid-1940s were not simply a guilty reaction of the British for having left several of their colonies in the lurch in the Second World War. An earlier example was a court procedure instituted by Hong Kong’s Distress for Rent Ordinance, 1883 that allowed a tenant to recover their bailiff-held chattels by paying the landlord arrears in rent. Using legislation to insert procedural allowances in the landlord and tenant relationship had long been an easy way for a colonial executive to assist working people without actually expending money on them. Standard rent and tenant tenure were protected best by judges in post-war colonies to which the British clung into the 1950s and beyond (Hong Kong, and to an extent Singapore/ British Malaya). In conditions of political independence decolonized values tended not to favour tenant protection. In those colonies where Home Rule prevailed, 1947–8, the bench wound back pro-tenant prescriptions (Ceylon) or ultimately licensed a free rental market (Burma). These were examples of emerging national identities in the guise of local compradorial values. After quickly evicting the British from Ceylon after the Second World War, its Sinhalese comprador and Tamil planter elites led by Don Stephen Senanayake expressed the new nation’s priorities in 1950 by licensing judicial easing of restrictions on landlords evicting tenants from their residences. Judicial expression of landlord counter-narratives became a

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clear nationalist political force in Ceylon after 1950, and Burma after 1955, rather than a transitional tool for decolonization as gradually developed in Hong Kong (1945–97) or Singapore (1945–65). The first part of this chapter offers an examination of the body of Hong Kong’s post-war tenancy case law (1945–8) in which courts showed their autonomy by permitting the executive’s pro-tenant policy to prevail in cases where (1) the reasons for a decision in a tenant’s favour in the Tenant’s Tribunal could conveniently be dressed up in legal terms and (2) a tenant was not so repulsive in their actions as to make a finding of their bona fides a mockery of law. The second part of the chapter compares the approach taken in Hong Kong to those in Ceylon, Singapore/British Malaya, Madras, and Burma within the framework suggested earlier in this introduction: relative autonomy as a purposeful interference to dialectical materialism. It attempts to put colonial judges in a comparative pre- and postcolonial constitutional framework based on their positions on rent control.

Hong Kong: Tenants 3, Landlords 2 When the British returned to the Crown Colony of Hong Kong in 1945 they encountered locals who were, in Han Suyin’s firsthand account, dressed in rags and sullenly hanging about jobless in the streets.3 In the late 1940s, the British imperial rulers set about reinforcing, through law and social provision, an ambivalent position that only their administration could protect the colony’s resident and recently-arrived refugee populations

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of Kuomintang (KMT) Rightists from the uncertainties of life across the border, and save Hong Kong from their politics too. The British colonial administration under Sir Mark Young used rent control as a way of splitting the populace into those who supported communist or republican nationalist alternatives. Despite this characteristically British technique enjoying success, any kind of Hong Kong self-rule model was imponderable to all but the Americans who wanted the British gone and the KMT installed in their place. The BMA (British Military Administration) established a predominantly pro-tenant rent regime under Proclamation No 15  —  Landlord and Tenant (1945). In particular, the BMA’s proclamation pegged rent in the colony to the same level payable on the day of the British surrender to the Japanese on 25 December 19414 and placed strong restrictions on the eviction of tenants.5 Although frequently called for during the three years and eight months of Japanese occupation, Local Minister for Civil Affairs (1942–45), Mr Itchiki Yoshiyuki declared flatly on behalf of the Japanese administration that it had “no intention whatever” to fix rents; although it recognized that the occupation had led to a collapse in property values, landlords and tenants would have to settle disputes among themselves.6 In effect, this was a policy emphasizing that local landlords trailed a long way behind Japanese administrators in the pecking order to extract wealth from locals. After the war finished, prominent protective parts of the Landlord and Tenant Ordinance (1947) included prohibitions on landlords charging in excess of standard rent and their ejecting tenants without good cause. Before analysis is offered

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on the grammar and purpose of Hong Kong’s post-war tenancy jurisprudence, it is useful to recall the days in which it emerged. During the period September 1945 to April 1946, the BMA was the official governing body of Hong Kong. Although some referred to the BMA as “the black market administration” the body nevertheless assumed and assigned all judicial, legislative, executive, and administrative powers until the colony was sufficiently reconstructed. Admiral Sir Cecil Harcourt (military administrator) and David MacDougal (chief civil affairs officer) took over the reins of power from the internment-emaciated Acting Governor Franklin Gimson on 1 September 1945. Together, the two served until full civilian rule could be restored in May 1946 to the short-lived governorship of Sir Mark Young. Several factors combined to make establishment of a regulatory tribunal over rent in the colony and the supervision of the tribunal by the courts necessary. Some 8,700 domestic residential units had been destroyed during the invasion and occupation by the Japanese and 10,700 had been damaged.7 Hong Kong’s population burgeoned from 600,000 in 1945 to 1.8 million in 1947.8 This was due in large part to an exodus from the Chinese mainland to the colony due to the ongoing civil war between the KMT and the Chinese Communist Party (CCP). Proclamation No. 15 on Landlord and Tenant (1945), the Landlord and Tenant Ordinance (1947) and ad hoc administrative arrangements9 were products of a policy push by the BMA to clarify responsibilities of tenants, in particular, for the maintenance of premises. To his credit, Governor Sir Mark Young recognized that Hong Kong would not be reconstructed only from a foundation of tenant rights but that landlords also

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had to be given incentives. Accordingly, he declared that new building completions were to be accelerated by applying rent control only to existing buildings.10 In the immediate post-war years, MacDougal faced all of the familiar problems of British re-occupation rule, including rampant price inflation, unemployment, looting, sanitation problems, and shortages in currency, housing, food, as well as electricity. Housing shortages11 and the use of rent control12 in post-war Hong Kong have attracted academic interest because the pro-regulation findings of the MacNeil Report in 1953 strongly informed government policy well into the early 1980s.13 However, the relationship between the executive and the judiciary in the era of rent control has escaped notice to date. Bradbrook noted that the pro-tenant ambition of Hong Kong’s landlord and tenant policy was remarkable considering the large increase in the cost of living in the colony between 1941 and 1945.14 Indeed, in the decision in Bank of East Asia v SN Choy Williams J observed that, “it is not an unreasonable deduction to conclude that the Legislature by [the] Proclamation had, as one of the objects, in view, that of preventing the cost of living soaring above 1941 levels”.15 The British colonial administration was not in the habit of legislating in favour of tenants in particular, or against free market forces in general. The accepted explanation for its intervention is that it restrained cost of living increases so that the imperative reconstruction could occur. There is an alternative explanation to a pressing reconstruction imperative driven by protecting labourers and small business owners from unreasonable rent hikes. Autonomy of law in the practices of the

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bench prevailed on occasion over executive prerogative, at least in the Hong Kong department of Empire. To overcome the proclaimed restrictions on the eviction of tenants, a landlord had to appear before a panel of the Tenancy Tribunal and lead a well-evidenced attack on the bona fides of their tenant. In a brace of cases from 1946–8, tenants successfully replied that not only had they paid rent but, in line with the proclamation, had done the so-called “something more” to warrant remaining in the premises.16 For example, the 1948 decision in Ng Wan, Proprietor of Sang Kee v So Yim17 was one of the “something more” cases. Decided by the Supreme Court Appellate Division (consisting of Justice EH Williams and Justice J Reynolds) the decision in favour of the tenant was in line with the approach taken at first instance in Re On Lok Co. The respondent had become a tenant during the Japanese occupation. He had been accepted by his landlord who took rent from him after the establishment of the BMA. The tenant was held not to be liable to eviction under Proclamation No. 15 which had come into force shortly before the date of the tenancy. The “something more” in this case was the expense to the tenant of putting in electric and other fittings before moving in. These acts proved to be determinative although one might regard them as a precondition to civilized habitation. The tenant won. It is unremarkable that local jurists implemented the executive’s policy but explanation of occasional pro-landlord decisions requires an explanation drawn from doctrine in Hong Kong no less than it does in, say, pre-1950 Ceylon. During the passage of the Landlord and Tenant Ordinance (1947) it had been noted by Governor Young that Proclamation

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No. 15 protected equally a head tenant and a subtenant from eviction and that the policy was to continue under the new ordinance.18 In the case of Wong Pit Him v Shum Tong, Sir Henry Blackall, however, noted that: “The object of the Rent Restriction Ordinance is to protect the actual payers of rent. It is not intended for the benefit of principal tenants who extract enormous rents from their subtenants while getting the benefit of the law for themselves”.19 So-called middleman tenants were scourges of Hong Kong after the war and figure in many of the cases. Another central and enduring principle Proclamation No. 15 had set down was that a lease would not defeat a landlord’s application for eviction simply because rent had been paid to the landlord and that without “something more” eviction could occur. This gave the courts a choice as to how much credit they would give tenants. The general tenor of Hong Kong’s immediate post-war landlord and tenant decisions was confounded by a collection of cases in which landlords won — including Ching Sum Co Ltd v Occupiers of No. 16 Tai Yuen St, 2nd Floor20 and Shui Hing Co v Chan Kwai.21 As a case that ran against the flow of pro-tenant decisions, Ching Sum Co was not explicable by supposing that the law was an ideology comprised of ruling class ideas applied invariably as a tool of the ruling class because on the question of rent in those days it obviously was not. Rather, the case was an example of the law’s authority and impartiality being established by occasional exceptionalism in favour of propertied interests. The policy generally implemented by D’Almada J in the period 1946–8 has a clear doctrinal explanation in the structural Marxist theorizing of the late 1960s and early 1970s that came to be known as the relative autonomy of law.

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Re On Lok Co/Shui Hing Co In 1946, Justice D’Almada stepped into the contexts described previously. He returned to a war-damaged, black-market ridden, and rapidly repopulating Hong Kong. His role as chief civil and criminal judge of the colony was very significant for the reestablishment of constitutional government and the rule of law. His first rent control case was Re On Lok Co.22 An action was brought by a landlord who wished to evict his tenant, Mr Chan Kwai. He had rented the property in 1941 as a rent-paying subtenant who took over from a head tenant who had leased the property since 1939. Landlord recovery of residential premises was possible under Proclamation No. 15 if the landlord wanted to move back into their dwelling as a residence23 or if the tenant had no bona fide claim for possession under the landlord or predecessor in title,24 but neither situation applied in this case. Chan Kwai had become a tenant during the Japanese occupation under an agreement consented to by the landlord. The tenant gave evidence that during this time there had been demands by the applicant for higher rent and that Chan Kwai had complied with them. On 14 January 1946, Justice Leo D’Almada, sitting in the general military court, dismissed the landlord’s appeal from the Tenancy Tribunal and found for the tenant. In obiter dictum, His Honour opined that the so-called “something more” could also include a tenant remaining in possession after a certain period, complying with a request to effect certain repairs or the continued acceptance by the landlord of rent after a certain date.25 In detailing these unremarkable incidents of a tenancy, His Honour could not be observed as

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setting the bar too high for tenants. In fact, the tenant was given altogether credulous treatment. The landlord in the case of Re On Lok Co was not happy with the decision. Feeling that the whole story of Chan Kwai’s chequered tenancy had not been brought to the attention of the court he decided to appeal. In Shui Hing Co v Chan Kwai26 it was argued that a family had in fact lived in the premises throughout the occupation. Chan Kwai as the subtenant had passed on the rent increases to his sub-subtenant. In the appeal the landlord also revealed that Chan Kwai had been a licensed tobacconist throughout the war and had been seen entering the residence on occasion to smoke opium. His business partner usually paid the rent but sometimes it was paid by “some women on the premises”.27 Thus, it became apparent that Chan Kwai did not pay rent and the property was being used as a fairly common mixed-use premises: a family home, opium den, and brothel at various points. Apprised of these facts the court on appeal reversed the decision in favour of the landlord who had possession of the premises returned to him. The property’s actual use in Shui Hing Co explains the frequent increases in rent during the occupation. The forced migration program of Governor Rensuke Isogai (1942–4) depopulated Hong Kong and had a severe impact on rental demand. Chan Kwai as an opium den supervisor and tobacco retailer could only have been a collaborator because, apart from the codeine trade, there was no Japanese monopoly, save for alcohol, that he did not have a hand in. Both Thai opium and Philippine tobacco were tightly controlled by the occupation

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government. They were in short supply and regarded as a form of so-called “near money” not subject to hyperinflation. There is a myth that the post-war British were soft on collaborators and occupation-era profiteers. Rather, instead of legislating to reverse unjust enrichments the British simply used the courts and mundane administrative processes to decide post-war cases against collaborators when an opportunity presented itself. Notorious collaborators such as ship merchant Robert de la Sala had, for instance, a very difficult time getting confirmation of ownership of a certain new house with a double garage in Kowloon Tong, and Chin Park the handyman and contractor of choice under the Japanese had a container load of rubber shoes confiscated when he landed them without an import licence.28 Thus, the civil pecking order established by the British on their return started with a presumption that a continuous owner or tenant had done something extra to survive, but commercially thriving during the Japanese occupation put a question mark over one’s head in British courts and administrative bodies. Ching Sum Co Before the Tenancy Tribunal the tenants in Ching Sum Co Ltd v Occupiers of No 16 Tai Yuen St, 2nd Floor29 successfully resisted their landlord’s action for eviction. They did so on the grounds that Mr Chan Po, a caretaker-agent of the landlord, had allowed them to enter and remain on the premises. As such, they had a claim to remain on the premises as rent-paying tenants under the

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Proclamation. The landlord maintained that he had never heard of a Mr Chan Po. Justice D’Almada overturned the tribunal’s decision and reinstated the landlord for the reason that they could not maintain a claim to being bona fide claimants to possession on the terms that they alleged. The case sparked severe criticism of the Tenancy Tribunals in the local Cantonese press that His Honour sought to rebut: In a sense I welcome this decision of the Tribunal, for this reason: it gives me the opportunity to say something with regard to the criticisms of these Tribunals which I have heard in the last two or three weeks. It has been suggested that these Tribunals have not acted fairly because amongst their members are a number of landlords and that their decisions therefore might be biased in favour of the class to which they belong. This particular Tribunal, if it erred at all, and I think it did err, did so in the other direction. It was actuated by motives of sympathy for the tenants and I think that it must have allowed that sympathy to get the better of their judgment.30

His Honour’s decision in Ching Sum Co contrasted to his ruling in Lee Gwok Ying in which the tribunal also made a finding from the heart in favour of a tenant but, in this case, His Honour upheld it on legal grounds. His observation that panels containing landlords could and did rule in favour of tenants corresponds quite well to the autonomy of law argument. When Althusser remarked that “the upper floors could not ‘stay up’ (in the air) alone, if they did not rest precisely on their base”31 he had in mind not a superstructure that rode its base heavily but adroitly.

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Lee Gwok Ying In Lee Gwok Ying v H Turner32 the applicant was a well-known Cantonese property owner and developer who had sold several houses during the war. In November 1945, he let a house at 3 Austin Avenue, Kowloon to Mr Turner and his family for a hefty rent of HK$100 per month. Several weeks later the landlord’s circumstances had changed and he was forced to move himself and his family into a premises on Connaught Road that comprised a sitting room and two cubicles occupied by eight other people. He served a notice for Mr Turner to quit. A doctor gave evidence that Mr Turner suffered from tuberculosis and the Tenancy Tribunal reached the conclusion that the landlord had conducted himself inappropriately by not considering the hardship that the tenant would suffer if he were forced to move out. This decision was upheld by the court. But it reasoned that the landlord had not discharged the onus on him to investigate opportunities for other accommodation for him and his family. This was a remarkably pro-tenant position to take considering that valid eviction in cases of the landlord needing their own premises back was clearly provided for by Proclamation No. 15.33 In Lee Gwok Ying, D’Almada J upheld the Tenancy Tribunal’s moral decision on legal grounds. In doing so he noted: One should not overlook the difference which exists between proceedings before the Tribunal and proceedings before a judge with or without a jury in the ordinary Civil Courts. Before the Tribunal there is (as here) a minimum of witnesses. The Tribunal in coming to a decision has not the guidance of a

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legally trained person uninterested in the result. It has to make its decision usually on the minimum of evidence.34

His Honour was comfortable with the rate of factual error in the tribunal and accepted that it was the cost of expediting proceedings. If the court could come to the same pro-tenant result via a legal rather than a natural justice path, then so be it. The autonomy displayed by D’Almada J was not, however, to everyone’s satisfaction. There was a similar pro-tenant decision in the case of Wu Kwan Oi v Ip Yick Chi.35 In that case, the landlord wished to reoccupy her apartment because her child needed to be isolated due to his tuberculosis. Williams J found for the sitting tenant and his family and justified his decision by reference to not wishing to exacerbate the already severe overcrowding in the colony. The ledger in the resuming landlord cases was balanced in Wright v Low36 in which the appellant tenant tried to resist a landlord’s notice to quit in the context of not being aware of the notice due to her husband’s estrangement from her and his removal to Amoy (Xiamen these days). Williams J ruled against Mrs Wright who, he found, was a licensee in the premises at the pleasure of her tenant husband and as such was not protected from the notice to quit being legally effective in the circumstances. The Tenancy Tribunal of Hong Kong was at the time drawn almost exclusively from the ranks of the colony’s returning businessmen. The results of cases heard by them did not, however, favour landlords overall. Although D’Almada J’s

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comments in Ching Sum Co indicated that tenants were to be permitted to remain in premises whenever their bona fides could be proven, nevertheless law and its impartial application had to prevail, not the heart. In response to this, Attorney General Mr A.B. Griffin decided to beef up the role of the tribunal. He passed an amendment to the Landlord and Tenant Ordinance, (1947) which gave the tribunal power to resist appeals from its decisions. He took the view that there was a tendency for appeals from the tribunal that did not state clearly what the error of law was in a particular case. By insisting future appeals be based on reasons of law which the tribunal itself accepted, the attorney succeeded in bottling up matters in the tribunal. This allowed them to be decided in a more consistently protenant manner. The attorney’s disapproval of appeals without explicit reasons of law were brought by landlords who were, in essence, speculatively relying on D’Almada J to supply the reasons of law why they should win. This is reminiscent of Wade and Bradley’s observation that “it is idle to boast of an independent jury if major justiciable issues are excluded from the jurisdiction of the Courts and entrusted to administrative authorities”.37 It almost beggars belief that non-legally trained members of the Tenancy Tribunal, ruling as they did on instinctive grounds of sympathy for non-collaborating tenants who sought shelter among the depleted remains of Hong Kong’s housing stock, should be vested in 1947 with jurisdiction for vetting appeals primarily by landlords from their own decisions to assess whether there was a legal reason for them. The intention cannot have been to professionalize the tribunal. The untrained tribunalists

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could be forgiven for not finding legal reasons in appeals against their decisions. The Griffin amendment was pro-tenant as it severed the link between landlords and Justice D’Almada’s contrarian use of legal reasonableness in their occasional favour. Jones has argued that Hong Kong has been a jurisdiction less concerned about the rule of law than “rule relationships”.38 Adopted uncritically, this would imply that that each organ of government knew its job and studiedly avoided jurisdictional tussles with other organs. D’Almada J thought his role as a loyal representative of the Hong Kong establishment was to supply an equitable lining to an otherwise pro-tenant policy. An Oxford graduate of Portuguese descent and leading Hong Kong barrister in the 1930s, Leo D’Almada hazarded overland from Macau to London a distance of 10,000 kilometres before the war had ended to get his commission as chief justice of the general military court. Having secured his prize he was not going to play a constitutionally benign role in reconstructed Hong Kong. The executive’s tenancy policy gave incentive to landlords by exempting new dwellings from rent control and offered statutory tenure at fixed rent to the rag-dressed and otherwise itinerant. The decisional autonomy of the bench arguably strengthened executive policy by occasionally finding for an exasperated landlord in circumstances where it would have been absurd to do otherwise. Judicial independence in Hong Kong was made convincing to its post-war public by the extent of tenant recognition and an articulation of the limits of their conduct established by occasional landlord victories. The colonial judiciary

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reconstructed the authority of the law in post-war Hong Kong, and very vigorously in Ceylon, by recognizing, when required, deserving claims of property owners despite a prevailing legacy of laws protecting the incumbency of tenants.

Rent Judges in a Colonial Constitution Hong Kong was flooded from early 1946 to 1949 by refugees from all over China and, most relevantly to the discussion here, among them were wealthy KMT military figures and their associates who were returning to their boltholes in the colony. Seeing how the civil war on the mainland was turning out, Hong Kong was a safer bet than remaining in mainland China to run the risk, as landlords, of sliding down to the lowest rung of communist revolutionary society. In such people the British sensed an opportunity to showcase the comparative attractions of the stability and the rule of law in a colonial state, but also to measure out their political authority very clearly. The post-war landlord and tenant laws of British Ceylon were set down in the Rent Restriction Ordinance No. 40 (1942) and were more or less the same as those of Hong Kong. What was significantly different, however, was that the British only left Hong Kong, finally, in 1997 and departed Burma and Ceylon in 1948. In Ceylon there was evident, dating at least from 1950, a judicial break away from the British policy and in its place was put a regime of judicial interpretation of local rental tenure laws that made it quite a bit easier than before 1948 for landlords to evict tenants and to re-enter their properties. In the case of Burma, the British were drafting rent control and tenant tenure measures while in exile in Simla in 1943 which they enacted on

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return, but which subsequent Burmese court decisions watered down through recognition of the rent controller’s independent judicial power to order tenant ejection. It will be argued in this section that, even in a colony where the post-war British colonial administration could hold the line, such as Hong Kong, and statutory rent control and tenant protection restrained local judicial prescriptions in support of fee-simple property interests, they could never be put entirely in abeyance. This indicates that occasionally contrarian judicial decision-making was at work more obviously in a post-war colony such as Hong Kong that did not progress to self-rule than one in which a commercially motivated comprador elite took the reins, such as Ceylon. Ceylon found rent control was a short-term but necessary exigency. It was a purely domestic concern for the British to entrust to the local order after independence. In Hong Kong, rent control turned out to be an important plank of the social welfare state that exists to this day, but in other colonial jurisdictions, was jettisoned as a colonial hangover and a symbol of stymied independence. Ceylon Elsewhere in the Empire, local authorities were also shoring up their working-class constituencies with rent control measures. In Ceylon, strong regard was given to the case law interpreting the English Rent and Mortgage Interest Restrictions Act (1939) and, before it, the Housing (Rural Workers) Act (1926).39 Section 3 of the latter act specified maximum rents for specified types of rural housing. The former act linked rental increases to the rateable vale of land. Security of tenure was provided to tenants

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via section 8 of the Rent Restriction Ordinance No. 40 (1942) that was, in turn, based on section 5 of the home country’s Rent Restriction Act (1920). It specified that the landlord had to show that a residence was “reasonably required” by him or her for personal occupation or that of their family.40 Pro-independence riots across Ceylon prompted the British to pass the Rent Control Act (1915). It provided that tenants who paid their rent would be protected from eviction. Tenants who paid up to £30 rent per annum were covered by the 1915 act. In 1919, its scope widened to include £70 per annum tenants. Consensual rent increases were legislated for in 1920 to a maximum of 40%, conditional on repairs being made. The Ceylon National Congress was a compradorial elite including free-market Tamils and planters. It had been instrumental in self-rule and came to represent the propertied local order after the Second World War. This group jockeyed for position through its ambivalence to premature independence and support for dominion status within the Empire when independence did occur. The protective direction of legislation continued in the tenor of immediately post-war judicial decisions, if not post-independence reasoning. In the case of Autukorale v Navaratnam41 a tenant who lived in a house with his elderly mother, older brother, nephew, and niece was held liable not to be evicted because his landlord wished to have the house back to accommodate his six children. The case of Autukorale was one of a Brahmin landlord being envious of a tenant who occupied a place that had ceiling, lights, and a garage. Basnayake J was

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not moved by the landlord’s contention that his wife was ill and he wanted a house close to the sea or that his present house had none of the benefits of his tenant’s. It was not uncommon for landlords seeking to resume premises to have a sick relative at hand, be it in Hong Kong or Ceylon. Perhaps determinative in Autukorale was that, although a notice to quit had been issued by the landlord in early 1946, the tenant had pre-paid rent up to the end of 1947. Although the doing of “something more” by a tenant was more prominent in Hong Kong, in Ceylon it was also clearly regarded as sound tenant practice, however extraordinary payment of future rent seems. There is a large quantity of litigation on the reasonableness of a landlord re-entering property in Ceylon’s first three post-war years. Several cases found that a landlord, on a balanced reading of the facts, did not have satisfactory grounds to claim that his premises was reasonably required for occupation as a residence for himself.42 As in Hong Kong, there was also a sprinkling of immediately post-war cases that went the landlord’s way. Many such cases were so decided after 1950. In Weerasinghe v Candappa43 the landlord was granted reentry provided that the tenant be given four weeks to secure another residence. This was on a reading of the relevant common law test as not requiring an invariable finding in favour of a rent-paying tenant. Rather, resumption depended on hardship of a landlord outweighing or being evenly balanced with that of a tenant. Dias J in Mendis v Ferdinands44 had developed this test earlier in the year of 1950 to allow a landlord re-

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entry. Basnayake J did not resist the mounting tide of decisions in favour of reasonable landlord re-entry as he questioned, in Yoosuf v Suwaris,45 the legality of an order suspending the operation of a decree of ejectment in rent restriction cases except by consent of parties. In the Weerasinghe case Gratiaen J said, quite seriously but nevertheless in obiter, that it was “not the function of this Court to question or praise” the reasons for the Ceylon legislature’s enactment of landlord and tenant legislation.46 His Honour’s statement suggests that only through a measure of judicial detachment from the governor and his advisors could their will be done by judges. That Ceylonese judges in the late colonial period could say, in effect, that they applied the legislation without approval or disapproval looks rather like a smoke screen for their own discretion. This is especially the case considering Dias J’s development of a pro-landlord test for ejectment. Much of the pre-1950 Ceylon litigation centred on whether a tenant could be reasonably accommodated in another property or would suffer financial detriment by being turned out. Although Hong Kong applied essentially the same law under Proclamation No. 15, its focus was dualistic in that whether a tenant had done something more to deserve to remain in residential premises other than merely pay rent could also be considered. In Autukorale, the landlord Mr Navaratnum in addition to the tenant’s house had four others in the same row. Accordingly, it was unreasonable for him to pick on Autukorale’s full house, and substantially the same outcome would have prevailed in

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Hong Kong. Advance-rent payment such as that furnished by Mr Autukorale would in Hong Kong have been seen simply as the so-called “something more” and contributed to the landlord not having sufficiently reasonable reason to re-enter. Given the legislated texts in force in both jurisdictions, and their inspiration in the tenant-protecting statutes of the mother country, a tenant had to be exceptionally repugnant, or a landlord some sort of hapless angel, for judicial exceptionalism to surface. In the words of Basnayake J in his decision in Alles v Muthusamy47 the Rent Restriction Ordinance (1942) “appears to be designed to create a statutory tenancy in respect of tenants who are protected [by its] provisions from ejectment from the premises they occupy”.48 Autonomy was demonstrated in Hong Kong by judicial exceptions made in favour of landlords; in Ceylon, independence dismantled any hope for the same kind of autonomy prevailing much past 1950.

Madras Across the post-war Empire, judges were called on to adjudicate the application of rent control legislation. Local judiciaries were not invariably to interpret their local landlord and tenant legislation in a manner sympathetic to tenants and Madras was at the same free market end of the spectrum in the 1940s that Ceylon was after 1950. Act XV (Madras Ryots and Tenants’ Protection Act (1946)) regulated the letting of residential as well as non-residential buildings. It stipulated the fixing of “fair rents” for both types of buildings and protected the tenants from “unreasonable eviction”.49 This reacted to the quandary that judges had got themselves into by taking a pro-landlord

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position during the war. In the district of Malabar at the end of the war there were 9,000 suits pending involving eviction; 4,000 in North Malabar and 5,000 in South Malabar.50 This crisis had been caused by the High Court of Madras as it had interpreted landlord and tenant legislation since 1930 to permit eviction of a tenant if he or she intended to farm or occupy the land themselves.51 When legislation regulated rent and tenure with such concepts as fairness and reasonableness, a reversal in the role of the local judiciary was obviously put in train. The natural disposition of Madras judges under the British seems rather like that of the Ceylonese judges after independence. That is, British post-war rule restrained judicial practices assuming that pro-tenant instrumentalism would carry the day. In Madras the evidence suggests that expression of subcontinental nationalist sentiment through a pro-landlord local bench was well underway during the Second World War and did not have to wait until 1945. Given the sensitivities about independence, that Act XV was promulgated by the local colonial government seems greatly out of touch. It provided that whenever a building fell vacant and its monthly rent was above Rs 30, the landlord was required to give notice within a week after the building became vacant to a controller appointed by the presidency of Madras so that “it may be allotted, if necessary, for a Governmental purpose, or as the residence of a Government officer”.52 The British did not dare to legislate exclusive tenancy rights for government officers in post-war Hong Kong.

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In Hong Kong, Proclamation No. 15 and the 1947 ordinance were, in essence, executive orders that required judicial restraint. D’Almada J was necessarily a judge playing an unusually political role in which rule of law was understood to include recognition of subjective and disqualifying facts about tenants or else the law would end up endorsing behaviour that ridiculed prerogatives associated with private ownership of property. His actions, however, notwithstanding the vast cultural differences between Madras and Hong Kong, did not result in a legion of landlords exercising a right to turn out their tenants as had been the case in Madras.

Singapore Singapore’s experience was not very different to that of Hong Kong, with the main exception being Singapore’s faith in administrative rather than judicial implementation of rent control measures. Loh contends that post-war industrial development in Singapore was based on a British social mission continued by the People’s Action Party (PAP) after 1959 to get semi-skilled labourers out of the kampong slums, working for wages, and paying regular yet subsidized rent in new, sanitary public housing.53 He also argues that the Communist Party of Malaya (CPM) and left wing rural associations were instrumental because they “mobilized kampong dwellers against unfair eviction”.54 Singapore had put in place the Rent Control Act (1947) for the purpose, as Tan saw it, “to prevent unscrupulous landlords levying higher and higher rents on their tenants in the face of acute housing shortages”.55

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Unlike the local Labour Party, PAP in the early 1950s — like the Ceylon National Congress between the wars  —  had no ambition to take power from the British but rather were concerned that their departure be gradual. On issues such as rent and income tax, local concerns did however need to be addressed properly by the colonial government. Indeed, the Rent Control Act (1947) was not repealed until the Rent Control (Abolition) Act (2001) but urban areas such as the Golden Shoe precinct were taken outside of rent control settings in 1969 so it could receive investment. In Singapore, the British colonial government had established the Rent Control Committee (RCC) in 1946 to identify controlled housing and to set standard rent. Local politician David Marshall found himself in heated opposition to fellow members of the PAP on the issue of rent control in the lead up to the Legislative Council elections of 1951. He was a prominent member of the Rate Payers’ Association who made a submission to the RCC that CBD rents be decontrolled and rents in controlled residential housing be raised by 20%. Remarkably, PAP — although not a pro-labour party —  successfully opposed Marshall’s proposal on rent control and wished to keep the 1946 settings in place.56 Rent control in Singapore was a pragmatic measure to secure ex-kampong constituencies for conservative Straits Chinese politicians which largely escaped the purview of the courts. Ad hoc arrangements in the immediately post-war years under the Control of Rent Ordinance (1947) were fleshed out by the Rent Control Act (1953) which determined standard rent as being the rent that was payable on 1 August 1939,57 yet offered quite

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weak measures for tenancy tenure protection. The adjudication of this regime was overseen by the Rent Conciliation Board chaired by a district court judge with limited reference of matters to the high court. This differed from the Hong Kong approach that set up non-judicial Tenancy Tribunals heavily moderated by the bench. Why did transition from colonial state to independence after the Second World War become strongly associated with policy overtures toward the proletariat in the form of rent control? Why not go back to riding the natives for all they were worth? It seems that, in the wake of a war or a lesser epistemological break, such as an uprising, it is viable to surmise that a diminished colonial prerogative for control of a possession can give room to competing nationalisms to have a say in a policy’s content even if done by petit bourgeois transitionists. Burma When the British were ousted from Burma by the Japanese in 1942, high on the order of business for their government-inexile in Simla was drafting general rent control legislation. It came in the form of the Tenancy Act No. XXI and the Urban Rent Control Act No. XXXIV and both were enacted when the British returned in 1946.58 The latter enabled standard rents to be determined by a tribunal. Furthermore, it was said that, “tenants obtained very valuable rights in the matter of ejectment”.59 The enactment also made the taking of salami (excessive rent) punishable. In Ceylon, the Rent Restriction Ordinance (1942) also forbade a tenant to pay any gratuity or commission on top of the standard rent.60

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Two local issues complicated the rent and eviction control measures of the British in Burma: (1) their unpopular landowning proxies, the Chettiars (South Indians) and (2) the question of rent during the Japanese occupation in light of the fact that the occupying power had taken genuine and widely supported steps to bring forward Burmese independence. The 1947 case of U San Wa v U Ba Thin61 subsequently established that the orders of the supreme court under the Japanese authorities during their occupation were to be regarded as if they were those of the (British) High Court of Judicature of Rangoon before or after the occupation. The urban tenants, just as their rural cousins, were now licensed to argue that Japanese permission not to pay rent was part and parcel of legal continuity and landlords could not expect retrospective rental payments. The principle in U San Wa conformed to Monthly Leases Termination Act No. XLIX (1946) which provided that a landlord could not pursue a tenant for rent who had been ejected from possession by the Japanese occupation, and that the month ending their tenancy was the last date that rent was payable.62 This could be thought to refer to a popular position among Burmese opposed to Chettiar money-lending and landlord interests. But the measure was quite at home among a wider context of post-war colonial enactments that were designed to limit the influence of the common law and of judges in rental disputes, such as for instance, Griffin’s amendment in Hong Kong did. There remained a need to clarify ramifications of occupationera tenure over rural land in Burma, or as Kratoska put it, “the

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restored Government were bound to recognize the rights of the [land] owners” but that, “the recognition of the landlords’ rights caused unrest among the peasantry”.63 There was a strongly perceived need among the British authorities to restrain the reinstated post-independence judiciary from potentially seeing things too much in the rural tenants’ way. This would have discouraged the Chettiars with large holdings from investment in agricultural pursuits. The rice crop depended on Indian landlords expending funds for seed rice and taking rent out of their cultivators’ harvests. As a matter of international law, of course, the tenants had quite a good argument. The norm, according to Hall, was that ordinary contractual dealings between individuals were not made invalid by a foreign occupation unless there was evidence of coercion.64 The Burmese were on occasion tipped out of their residences to accommodate the new rulers, but they were seldom coerced by the Japanese to pay rent to their Chettiar landlords during the occupation. Thus, the conciliatory nature of the Burmese during the Japanese occupation could be argued to supply legitimacy to no-rent tenancy arrangements. Whether a Burmese tenant remained in occupation rent-free or was paid to lease it to their Japanese subtenant, the indifference of the Japanese to the true landlord’s position was valid. The unhelpfulness of the U San Wan decision to Burma’s Indian landlords had been disappointing to them but the ruling in DD Grover v AC Coondar65 was rather a relief. In that case it was held that the rent controller could lawfully exercise judicial power to order the ejection of a tenant despite there being no head of power relating to tenancy in the Burmese constitution.

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All that was required was that the order was made “according to law”.66 Of course, Burma has not been entirely susceptible to analysis from the point of view of an Empire-wide theory. Although the Urban Rent Control Act (1948) was amended in 1960 and has remained on the books, in its immediately postcolonial application, it was designed by the departing British as much to get the Burmese in town to pay their Chettiar landlords at least some rent, as it was to protect the tenants from arbitrary rent hikes. The Burmese had developed the ways of bare possessory tenants on land and in towns but not rent-paying ones. Hence, the promise of the DD Grover case for landlords. Throughout the post-independence communist insurgency, civil war, and parliamentary experiment period (1948–62), landlord and tenant relationships were characterized by the law’s limited dominion outside the bigger towns, communistinspired rent strikes, and a strong sense that constitutional prescriptions had to recognize independence as having a tangible meaning for Burmese tenants. In short, for the Burmese there was a tension between paying rent to the British proxies and their sense that they owned their new country. The British rent control measures were out of step with the realities of their Burmese subjects. It was an ill-adapted attempt to apply what they had learned elsewhere to the faction-ridden circumstances of post-war Rangoon.

Conclusion On the broad stage of the British Eastern Empire, judicial autonomy expressed itself through Burmese indifference to non-

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payment of rent after 1947 and pro-landlord adjudication in Ceylon after 1950, as the dialectical struggle of the British to hang on to what had been lost. This occurred while, in other outposts, such as Hong Kong and Singapore, the shadow of legislated rent control solidified into policy and was symbolic of the political continuation of the British. The judiciary in Madras saw rent and eviction control as a vital plank of their handover legacy. Its judiciary had, like that of Ceylon on display in the Yoosuf case, taken a contrarian pro-landlord position which aligned a free-market on rent and tenancy with the aspirations of those business people and land owners who would assume the reins after independence. In Burma, not paying rent to British proxy landlords was the means by which political independence was voiced. Rent control legislation was in place in the post-independence years of Burma but was not a central part of the national discussion with the exception of the DD Grover case which rooted the authority of the rent controller’s ejection jurisdiction in domestic, not constitutional law. The case of Burma was exceptional because the Japanese had already set decolonization in train and British rent control could not stop this. In Ceylon, the position set out in Weerasinghe is substantially the same to this day in modern-day Sri Lanka. When a landlord not owning more than one residence seeks a tenant’s ejectment after notice it can be ordered by the court if, in its opinion, the house is “reasonably required as a residence for the occupation of the landlord or any member of the family of the landlord”.67 This is an example of an epistemological break from the familiar mantra of postcoloniality never having come to the dominions

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i.e. the economic, legal, and institutional legacy of the British made political independence a pyrrhic victory. Ceylonese tenants went from being a protected species to being subjects of an open season. The transition to independence made life worse for tenants, not better. The 1944 Ceylon decision in Ramen v Perara68 found that a tenant was to be protected from the effect of a notice to quit although their landlord’s stated purpose to purchase the house to live in himself was reasonable. The concept of reasonable re-entry under the Rent Restriction Ordinance (1942)69 included a tenant’s needs. In 1946 this position was put beyond doubt in Gunaratne v Thelenis70 by a three-judge bench led by Keuneman J. It rejected a landlord’s argument that under the ordinance of 1942 a tenant at the expiry of a lease was to be treated as a trespasser, not a tenant. Rather, there was a concept of statutory tenancy in Ceylon because a monthly tenancy always subsisted after the lease. Compare this, however, with the post-independence position in Weerasinghe v Candappa71 where a landlord was granted re-entry provided that his tenant was given four weeks to secure another residence. The court in that case found that the only relevant test for resumption depended on hardship of a landlord outweighing or being evenly balanced with that of a tenant. Taking as its examples judicial pronouncements on rent control under post-war British colonial administrations in the Far East, the “last resort” of landlord assistance was reached sooner in quickly decolonized Ceylon or Madras and, to an extent, Burma, than in Hong Kong or Singapore. This was because a pro-landlord narrative of national self-determination

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in South Asia was comparatively mature by the Second World War’s conclusion and could easily trump the allure of extending Beveridgite prescriptions more readily accepted in the East Asian island colonies. In Burma, a colonial domain quite quickly abandoned by the British after the war, communism was a competing force that would on occasion encourage the practice of withholding rent from British landholding proxies, including the rent-seeking and money-lending Chettiars. The post-1948 government had difficulty in making a clear rule statement on landlord-tenant relations because communists vied for political power. Overendorsing the British-enacted Urban Rent Restriction Act (1948) would have given, in communist eyes, an incongruously favourable place to the Chettiars in the new Burma, as it required Burmese to pay the South Indians some sort of rent. Communist ideas about the payment of rent held sway in other parts of the Empire too. In the rural outreaches of British Malaya, urban communist polemical and military resistance on behalf of rural tenants also resulted in frequent rent strikes. In 1945, however, Burma and Malaya were in stark contrast to places such as Singapore and Hong Kong. These were urbanized entrepôt centres especially persecuted and food-starved under the Japanese. The British realized that providing cheap public housing for the working poor could inoculate them against Leftist political extremism. Autonomy of law offers an alternative to postmodernist prescriptions including those that posit law as “an element in the expansion of power” with a view to “administrative control”

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of individuals, as Turkel put it.72 Althusser recast the action of the superstructure on the base as a tug of war that is never entirely won or lost. In this, he suggests that the superstructure cannot relentlessly exploit the base and that its reproduction relies, to some extent, on the law’s relative autonomy to offer protection to the best of the tenants and the best of the landowners. It is perfectly acceptable to propose and study legal autonomy as a purposively constructed judicial or legislative expression of constitutional relations between a nation’s base and superstructure, or as a constraint on dialectical materialism, and to follow such prescriptions as far as they will go. It does not have to explain everything. In Singapore, as in Hong Kong, rent control was a pragmatic bulwark against communist and Laborite prescriptions for the postcolonial future to the point that it evolved into a means of securing political hegemony for a Eurasian comprador class through cost-of-living control for the benefit of price-sensitive wage labourers quite capable of rioting over small increases in rice prices or ferry fares. In Singapore, however, the reduction of rent control and ejection protection to an essentially bureaucratic rather than judicial function meant that an equivalent dissenter to D’Almada J never emerged to provide a counter-narrative in which landlord interests were voiced when just to do so. In Hong Kong and Ceylon what judges decided, and how they reasoned, was not, as a positivist would have it, a matter of them co-opting sovereignty to exercise community-aligned individual will, given a multitude of social and economic factors. Rather, it was to do with how communitarian social values

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could be given legal limits to enable decisions to be made for the few tenants who would fail under a public law with loaded referents established for their benefit. In the final instance, the law could neither be an ass for a moment too long nor protenant forever. Rent control became an addictive feature of colonial rule to their urban middle-class aspirants in East Asia. After the alltoo-prevalent destruction caused by shanty fires, potable water shortages, and sharp words from locals about the narrowness of Legislative Council suffrage, the British made sure that public housing in both colonies was affordable and well-served by public transport to workplaces, markets, and schools. Such initiatives were transparently trade-offs for “one vote, one value” democracy. In providing post-war rent control and subsidized public housing, postcolonial governments in the Far East followed a British lead by giving a social democratic reading to a communist cri de coeur. For this reason, epithets such as “postcolonial” or “free market” should be used rather advisedly in the cases of contemporary Hong Kong and Singapore. Each mimicked the British approach to public housing. They continue to do so to this day. Both staved off the influence of communism by cherry-picking popular subsidies from Leftist manifestos. A reasonably comprehensive case law developed in Hong Kong’s immediate post-war years which interpreted and applied Proclamation No.15 to the relationship between landlord and tenant. The BMA’s rent control and tenant tenure protection policy was advanced by a sympathetic disposition toward

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tenants in the Tenancy Tribunal on natural justice grounds. On appeal, the district court shored up the instinctive findings of the tribunal by reference to the legal requirements of the proclamation. Of the cases in which a landlord prevailed in the district court, in one the tribunal was judicially admonished for not having a sufficiently hard-headed reason for siding with the tenant (Ching Sum Co) and, in the other, it was criticized for making a factual error in relation to the bona fides of a tenant (Re On Lok Co). Landlords had recognizable rights. The rent control policy signified an enlarged and generally protective economic role for the executive, yet D’Almada J’s ruling in the Ching Sum Co case and others went in favour of the landlord because the independence and credibility of the judiciary mattered more at that particular point in time than the new check on laissez-faire being imperative. He was not, however, in the language of Duncan Kennedy, an archetypical “unconsciously strategic” judge.73 That is, D’Almada J’s track record suggests not that he felt the constraints of the proclamation as an invitation to decide “ideologically”74 as Kennedy put it. Rather, his course of conduct was to avoid ridicule of the law. This role was more important than always upholding the tenant’s point of view. D’Almada J believed there to be a difference between finding for a landlord because one was rational, and finding for one because private property had to prevail in the first instance irrespective of what legislators said on the matter. Rather, D’Almada J held a pragmatic belief that community respect for British law not only relied on occasional exceptionalism in favour of landlords, but also hinged on putting distance between

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the resuming colonial power and the policy of their immediate colonial forerunners, the Japanese. Proclamation No. 15 did not apply to new buildings or to buildings to which extensive repairs had been made. Landlords who relied on the exemption to build or repair apartments could charge any rent they wanted. The colonial administration’s rent policy was pro-sitting tenant and pro-entrepreneurial landlord at the same time because it could be. Landlords who found themselves in court over a tenancy matter had to overcome a presumption that, in seeking an eviction, they were clearing the way for renovations that their tenant could not afford rent-wise or a partition that would further reduce their living space. What I have tried to describe here is a British Eastern Empire in which war-chastened colonial executives after the mid-1940s used trusted edict-based approaches with more or less success to give effect to a positive social policy of tenancy protection for local people. In many colonies the local judiciary was understandably out of kilter as it had, for such a long time, adopted a locked step with the executive and its hands-off approach to significant aspects of domestic colonial life. Judges such as those on the Madras bench, Dias J in Ceylon and, to a point, D’Almada J in Hong Kong, were slow to move into line because each represented vested postcolonial propertied interests. The reaction of Attorney-General AB Griffin to effectively shut down D’Almada J’s landlord appeal jurisdiction after 1948 suggests that, in the case of Hong Kong, judicial autonomy created a value gap after the war that was to be decisively resolved in favour of tenants because the colony was a very long way from decolonizing. In those colonies such as

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Burma, in which the British found themselves under inexorable pressure to go, rent control was patently an unpersuasive legacy. In modern times, there has been a proliferation of minimum standards relating to housing and employment. Judges often realize the rights of the citizenry in the way expected by the legislature and executive. They act on behalf of hard-done-by individuals to apply landlord and tenant laws, occupational health and safety laws, minimum wages and, more recently, anti-discrimination measures. What happened in Ceylon, Madras, and, to an extent, Hong Kong and Burma, was a postwar judicial defence of private, residential property rights in a socializing era of tenants’ rights. The socializing intentions and projects of post-war British colonial governments in the rent control field could, to a modest extent, be mitigated by judiciaries determined to protect individual property prerogatives. This chapter has shown that, although the mechanism of relative autonomy in the case of rent control allowed colonial benches to even up the odds for landlords, its more important purpose was to delay decolonization whenever and wherever feasible.

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Introduction Stoler wrote of colocation of the “visibly different” present and “subjacently resonant” past.1 Ford was just as comfortable with “the messy array of gaps and perversities”2 emanating from her multi-jurisdictional study of settler and indigenous governance. Their colonial past is a brusque and benighted place, in which colonial agents are portrayed as buffoons or henchmen, capable, despite their characterization, of carefully concealing or modifying their use of a racial agenda depending on the depth of the contradiction it produced. For most postmodernists, the point of the world — let me allude to Marx — seems not to change it but to philosophize about it. The greater risk of ignoring Marx’s dictum on changing the world as itself an “epistemological break”,3 to Althusser’s mind, was not to disseminate revolutionary theory as bad history. Rather, by perpetuating history as some sort of hapless, tragicomedy

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made innocuous or invidious by the passage of time, has been to ignore those processes of government and judiciary frustrating dialectical development, both of which can be met squarely and made to answer on the contemporary political plane. The postmodern colonial past was a land of stasis that finally slid over the edge and there is nothing intrinsically wrong with that view. The British of the Far East, by obscuring their self-interest with a veneer of law or civilizing purpose, and knowing exactly where the loot was, became deeply invested in the Canutish business of stopping their colonial world from changing. Yet that was precisely why their policies abroad need to be seen not as some sort of lamentable, hesitant contract with the governed, implying internal frailty but laying wasp eggs in a helpless host-maggot. Rather, in recognizing the intensive efforts of British colonial administrations to choke a dialectical argument with those who wanted them gone by issuing rewards and retaliations, a proportionate view of the debts and desserts of the decolonized world reveals British colonialism owing less redress to contemporary East Asia than it did many other regions of the world. By the 1930s, it was clear that the British administrations could not change themselves fast enough to hold on to what they had grabbed. They did not suffer greatly from epistemic doubt and it almost certainly cost them their Empire. At their most effective, they did usually know best, or at least what was best for them. The veil of legally-termed pragmatism in service of extraction obscured most epistemological moments from them in the Far East, except in 1925–6 (the Chinese general strike and commercial boycott) and 1941–2 (when the Japanese finally

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unleashed war on them). A question which may be considered is whether retarding the pace of change through dialectical inhibitors would create less net benefits for the colonized than if the sons and daughters of Albion had never left their own shores? Their effectivity cannot be traduced by any allegation that their habits of conditionality and love for category disclosed a secret fear for the future rooted in the colonial present. They had a partially inclusive strategy and therein laid their power. Furthermore, they stuck to it. The British worked hard to deny epistemic shift through incremental reform when the legal-administrative foundations of their political power were exposed. There were many colonial examples of policy misfires due to underestimated cultural contusions among so-called “subject races”, or resorts to violence when local expectations had been left to grow too high. Yet the British colonial habit of information gathering, including various reports of dialogue, were not always anticipations of force but were often refinements of policy designed to create and control local constituencies other than by force of arms. Examples of this from the New Territories of Hong Kong appear in the final chapter. Stoler suggested that the whole assemblage of colonial state machinery known to her was designed to “subdue, coerce, and control” the local population.4 Instead, I seek evidence for a radical position: throughout the British Empire the only aim of government was to use time-honoured, often recycled, policy agendas girded by political use of law to perforate the claims of nationalism and delay decolonization. Two examples are offered initially in this chapter: (1) the assertion in Weihaiwei in 1911 of

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British magisterial jurisdiction to prevent incursion of republican judicial representatives and (2) the realization by the British in Hong Kong by 1919 that bluntly drafted racial disentitlement to particular land improvement opportunities was an ineffective and counterproductive means of answering Chinese nationalism that was very easily ridiculed on economic grounds. Much has been said to date about how the British responded reactively to the nationalist, irredentist, or independence movements they encountered in their colonies. Interwar Weihaiwei, Shandong, and post-war Hong Kong add striking examples of the British use of property law techniques to advocate for and insure their colonial political continuance. A study of the jurisdictions reveals two strategies: (1) when not physically in occupation in Weihaiwei, the British nevertheless made representations on behalf of its and its citizens’ remaining private property interests as if sovereign and therefore inviolable and (2) when in occupation in Hong Kong, using property ownership regulation was viewed by the British as a prerogative to keep nationalist commercial advantage in check when it had governance implications. Strategy (1) was based on a theory of rational government purporting that the corrupt and arbitrary Chinese nationalist and Japanese colonial ambitions over private property in British colonies made it impossible for them to succeed. Strategy (2) relied a lot less on wishful thinking and displayed a Machiavellian flair among the British of the Empire for making colonial allocation of private property an enforcement of their sovereignty.

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Through property law rights in international conventions and treaties, the British applied rearguard actions to the Japanese incursions until a formal state of war was declared in late 1941. The colonial prerogative was to delay or ignore the full dialectical implications of Chinese nationalism or Japanese occupation until it absolutely could no longer be avoided. The dialectical struggle not restrained by local measures was, then, only to be resolved by a state of open, armed conflict. Until that cataclysm arrived, autonomous welfare gestures to the local people or vigorous representations to an increasingly incursive power held the need to accede to such power’s ouster at bay. This develops an idea raised at the very end of chapter 1: the epistemological inhibitors the British had long used suddenly lost their magic in the late 1930s and early 1940s. This chapter will recap doctrinal contours of property, law, and relative autonomy, then trace the sinews of British property policy in Weihaiwei and Hong Kong as administrative incidents of their administrative anti-Chinese nationalism, giving examples arising from a cold magisterial seat in republican Shandong and a racially exclusive bathing beach in post-Great War Hong Kong. Next, I position the post-sovereignty use of propertybased treaty rights in 1930s Weihaiwei and post-1940 Liugong Island in the British tradition of highlighting “bad” nationalist land practices. My final sections compare such demonization with the impending demise of the nationalists as a political rival in the late 1940s when the members of the Hong Kong administration radically changed their policy by opening their arms to their

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old foe in the spirit of “forgive and forget”. The cancellation of KMT debts by the cash-strapped British in post-war Hong Kong would seem remarkable but for the administration no longer being called to counter a bourgeois nationalist agenda. It seems the British could only love the nationalist Chinese when events had seen them safely give up their stifled attempts at a dialectical tussle. This project has taken the form of a multi-jurisdictional study of private property policy, nationalism/irredentism, and the timing of decolonization throughout the British Far Eastern Empire (1900–97). Using concepts including relative autonomy, I contend that it is possible to evaluate how and why jurists and administrators intervened in social relations of production in contexts of rent control and extension or protection of land improvement opportunities. A dance of anti-nationalist policy, circumscription of business opportunities and local welfarism went on in many, if not all, significant concessions and colonies of the British Far East, in one form or another. As the twentieth century progressed, the British offer of autonomy to their colonies gradually moved from a garrisoned reactionary pivot to a paternalist one, but in some colonies including Ceylon, Burma, and Madras, the efforts toward amelioration of the worst social conditions were too little, too late. Colonial governments indulged in relative autonomy by pivoting between landed upper-middle class, on one hand, and working men and women, on the other, in order to carry out imperatives of anti-nationalist policy. Although land improvement opportunities were racially open, they could be

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politically closed under British law on the grounds of an investor becoming persona non grata, or else popular welfarism could be introduced to neutralize the allure of a nationalist policy alternative among the working poor. These strategies were driven not only by a need of the retiring British to hand over to a solvent and incorrupt elite but also one that did not undermine a postcolonial administration by fronting virulent nationalism resulting in the commercial ouster of the British after independence. The local elites of the early departures from Empire, including Burma and Ceylon, may have suspected the pivot of autonomy as a bluff to maintain replication of colonial relations of production. But because neither nation — once on the world stage — was able to purge themselves of foreign monopoly interests, their political independence cannot be read as a clean epistemological break. As if above the fray, the British in China often undermined antithetical Kuomintang (KMT) republican elites by highlighting to rank and file Chinese that bourgeois nationalism was not a credible class position for them. This aspect of the pivot was designed to inure working populations from Rightist nationalism, oddly, through tactical Left colonialist positioning. Although not always successful, in colonies where the British thought they could remain in charge after the Pacific war, including Burma, Singapore/Malaya, and Hong Kong they adopted positions that were mostly inspired by rival communist agendas. Althusser’s idea of an “essential section”5 was crucial to his idea of relative autonomy. He was quite unconcerned that, in the instance of a positive social policy or legal development, a

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cross section of a political order’s levels might reveal nothing correspondingly occurring in economic, philosophical, or scientific planes.6 Yet his intention was only to recognize political indeterminism in its most highly dilute form, not to make relative autonomy less determinative per se. Balibar tightened up the concept, but arguably not enough: “Relative autonomy  …  in the forms of law  …  emerged as one of the presuppositions of the [capitalist] mode of production itself”.7 To my mind, Balibar subsumed relative autonomy and made it unnecessarily mysterious. Relatively autonomous legal practices were situated by him as preceding the capitalist mode of production. My approach has been to give them a specific role in dialectical processes that determine movement from one mode of production to another. I see relative autonomy as principally a purposeful (colonial) political strategy — be it negative or public-welfare inspired  —  designed to thwart nationalist competitors for power and, in British colonies where the local relations of production barely included the British themselves, took the form of a supercilious concern for the paramountcy of British legal jurisdiction to profit by buying and selling things. Seen this way, relative autonomy is certainly much more easily explained than by leaving it as a mysterious black box implied by an essential section full of indeterminacies within the capitalist mode of production occasionally spitting out, for instance, unexpected occupational health and safety laws. The dialectic choking efforts of the British are now to be explained by examples from Weihaiwei (1911–12) and Hong Kong (1919).

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Carry on Weihaiwei, Hong Kong Weihaiwei affords an excellent example of relative autonomy as a block to the dialectical process coming equally in the form of a colonial subversion of historic, political change as a welfarist bribe to a local population. In 1911, after the failed Guangdong uprising, Dr Sun Yat-sen went to Europe and blocked the Four Nations Bank loan to the Chinese imperial government that would have seen the country’s railway system mortgaged for a cash advance to put down nationwide republican unrest. Deprived of funds, the imperial government collapsed and the Republic of China, under an interim president and cabinet, was declared. On the tip of Shandong, Weihaiwei remained the colonial outpost of the British because the new Nationalist government lacked the military resources to oust the colonialists. But this was not quite a certainty. In Weihaiwei, although a leased colony, the British recognized the judicial authority of the imperial government over a range of specifically Chinese legal matters, doing so under a condominium magistracy. On 14 November 1911, British magistrate in Weihaiwei, Reginald Johnson wrote a letter to the commissioner of the colony advising him that Weihaiwei’s Imperial Tsun (magistrate), Wen Teng had received an official letter from the new revolutionary government stating that, “Weihaiwei City has joined the revolutionaries”.8 This was certainly news to the commissioner who asked Johnson to send a note of acknowledgement of the letter to the Tsun “with whom we still (as far as I know) have official relations”.9 He further noted that he had no reason to believe that the Tsun had

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been dismissed by the revolutionary government and receipt of the letter from the Tsun did not “in any way” commit the commissioner to recognition of the new government.10 Johnson wrote back to the commissioner advising him that Wen Teng had changed sides to accept magisterial office under the new revolutionary government and that, in his (Johnson’s) view, there could be “no recognition of his authorities in connection with any cases, lawsuits etc”.11 He declared, “thus at present the office of the sub-magistrate of Weihaiwei City is vacant”.12 This correspondence occurred despite at various points a socalled military government of farmers’ militia flying their flag in the colony, the white flag with red edging of the revolutionary government being publicly raised in Weihaiwei, and Dr Sun urging the people of the city to rule themselves as independent Chinese and “to live in the peace and prosperity of the Han nationality”.13 The commissioner promptly sent the British garrison inland and warned Johnston “to be ready for bad characters to cause disturbances on the coast”.14 In Weihaiwai, a British foothold on the far-flung, nonindustrialized, impoverished tip of Shandong province, the local colonial government’s stock was quite high among local people. Thus, its autonomy pivot moved from very modest welfarist accommodations — including famine relief and posting security guards in villages to help cope with banditry — to nonrecognition of faintly asserted republican government judicial jurisdiction. As the nearest revolutionary government garrison was in those days over half a day’s travel away in Yantai, the

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main British concern was to quell would-be revolutionaries and their display of nationalist symbols. Their main strategy was to characterize anyone acting in the name of the nationalist cause as criminals looking to profit opportunistically from faraway events, which was basically correct. Just as I pass over Althusser’s least determinist example of autonomy, I also treat circumspectly Engels’ most pessimistic criticism of lawyers being “dominated” by the impulse to make and follow “fossilized laws”.15 Rather, out in the colonies there was always a highly responsive reason to do with the perpetuation of extractive trade capitalism for reading up or down the legal description of property and, in so doing, materially affect or protect existing relations of production. Yet in some of the wealthier Eastern colonies where Chinese business interests truly dwarfed those of the British, “fossilized” property law tainted by prescriptions of racism worked increasingly less well in the twentieth century. This was especially so when the subject race could make an economic argument against such law. Althusser’s most faithful rendition of the “essential section”, when put in the context of Far Eastern late colonialism, can be used as a research tool to reveal correspondences between populist colonial political/legal altruism toward the subject race and the appearance of active counter-racist or separatist nationalist movements. The origin of the correspondence lay, in part, in the economic arguments used by Chinese locals to ridicule racist property descriptions. In 1919, indefatigable nationalist, Mr Lau Chu-pak, debated with Hong Kong’s Attorney General J.H. Kemp over an ordinance to reserve

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southern Cheng Chau Island as a bathing resort and holiday village exclusively for the use of non-Chinese. Lau was one of the founding benefactors of the University of Hong Kong and an avowed republican. He made his fortune by being one of the early compradors acting as a middleman for foreign corporations investing in Hong Kong and China. He was associated with A.S. Watsons, which later became a retail beauty and pharmaceutical giant that still trades today. Lau’s most famous contribution was the founding of the HK and Yaumati Ferry, which, next to the Star Ferry, provided crossharbour ferry services and also catered to the outlying islands. He was a classmate of Dr. Sun Yat-sen, founding father of the first republic of China. They studied in Queen’s College together. He was a senior unofficial member of the Legislative Council of Hong Kong. Not even the British could ignore him politically. Lau Chu-pak referred to the legislation as “very vague” and mocked the British plans as being at odds with their reputation as “preachers and teachers of equality”.16 He viewed it as discriminatory to deprive the Chinese of their “civil right” to own any and all of Hong Kong’s land.17 Lau’s strongest argument, however, was to suggest that, the British people resident on southern Cheng Chau could reserve it for “their convenience and benefit” by “buying up the place and so arrange among themselves as to make it impossible for people outside their community to buy”.18 In effect, he said, if British mothers so valued the privacy of the island for them to bathe with their infant sons before packing them off to boarding school in England, then let them pay for such exclusivity rather than relying cheaply on legislated residential apartheid.

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After being treated to rational invective by the likes of Lau, the British administration in Hong Kong conceded pragmatically that, when native people were highly invested in their colonies they should not be unnecessarily alienated by the colonial enterprise, and hence made a change, and did not use race as a precondition for buying land in the exclusive Repulse Bay area in the mid-1920s. Relative autonomy was a purposeful technique of government appearing “autonomous” because it was a departure from instrumentalist lawmaking in obvious support of colonial extractive prerogatives on tenuous racial grounds. Therefore, the epistemological breaks of most significance out East were those occasions when “autonomous” intervention made an otherwise promising alternative local political choice seem suddenly less than inevitable, either by laying on welfare or undercutting a locally cherished jurisdiction. Having noted anti-nationalist action in the courts of Weihaiwei and the last reservation of a racial enclave as evidence that the British could not keep the world to themselves or impose their control just by bluntly invoking racism, it is now time to put relative autonomy into action by calling up a few larger examples.

Controlling Hong Kong In earlier pages, relative autonomy has been explained as taking, on occasion, the form of a British property policy that curtailed the undue influence of nationalist commercial interests in a British colony. In the case of late 1940s Hong Kong, the

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executive and judicial policy toward an ascendant position of the colonial administration took the form of two kinds of property regulation: (1) rejecting KMT claims to liquidate/ bankrupt Japanese banks in Hong Kong after the war and (2) tightly regulating KMT investment in land just as with any foreign investment. These policies run counter to commonly held beliefs about rule of law evidenced by indefeasibility of title, as well as notions about the free flow of capital in Hong Kong being the bedrock of its success. In light of previous discussions of relative autonomy as a brake on dialectical materialism aimed at militarily inhibiting a nationalist political alternative, as well as a deliberately implemented colonial policy, such interventions should come as little surprise. The policies were implemented on a case-by-case basis and were not unduly punitive toward the KMT. They showed that British colonial policy provided a context for future international dealings with the soon-to-be defeated and exiled nationalists.

KMT Property Acquisition and the Companies Ordinance On 15 March 1947, the China Vegetable Oil Corporation (CVOC) sought permission from the colonial secretary of Hong Kong to acquire immoveable property in the colony and did so pursuant to the requirements on foreign investors under the Companies Ordinance, 1932.19 The company was a prominent pre-war and post-war front for the KMT political studies clique (Chungking). Unlike many KMT offshore businesses

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that peddled political influence through laundering money or managing protection rackets, the CVOC actually produced something: tung oil. To be precise, the CVOC had the south China refining monopoly on tung oil  —  an essential means of protecting floorboards and wooden furniture from tropical humidity. It was also used in oil-paper umbrellas before polyester became widespread. An internal memo was prepared by Land Officer Mr M. Sainsbury for the colonial secretary recommending that the plots in question, 26 and 28 Carnarvon Road, be made available to the company as accommodation for their employees as it passed the tests for foreign investment under the Companies Ordinance. The CVOC had a company constitution that allowed it to purchase land and it was properly incorporated in mainland China. Buoyed by British approval, the company made a further application for factory land east of Chatham Road.20 The land officer replied that the railway property would only be leased to them to use as storage and that no factory would be permitted next to the railway line.21 This episode highlights that the British were not adverse to KMT investment in land per se and, in this case, had no economic reason to be, considering that the bulk of the tung nuts imported into Hong Kong came from tung nut trees owned by a British consortium22 and were re-exported to the United States.23 But the British would reject the KMT when the investment conflicted with their strategic priority — to keep land adjacent to the Kowloon-Canton rail line for the purposes of the colonial government. The British were in the business of

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increasing value, taxes, and rents on land by making rail sidings a shopping destination for train passengers, not a convenient factory site for a foreign government. On 25 March 1948, KMT-affiliate bank, the Kwangtung Provincial Bank, sought approval to trade in Hong Kong land other than for its own commercial premises.24 Mr D.C. Barty, undersecretary to the colonial secretary, denied approval on the basis that the bank was not empowered by its constitution to acquire land. He reasoned that: “I believe that these restrictive provisions in the Ordinance [the procedural requirements on foreign companies] are not enforced in an unsympathetic manner or in a manner that might be restrictive of commerce”.25 In this case, he was overruled by the colonial secretary who gave approval for the bank to acquire land but required it to notify the Land Office every time it entered a mortgage, foreclosed on a property, sold it, or entered into possession of land. The KMT-operated China State Bank was given the same qualified approval as the Kwangtung Provincial Bank to acquire property in September 1946.26 Of course, after the war American, Dutch, and even Japanese companies sought, and on occasion were denied, approval to acquire certain interests in land.27 But it was nevertheless significant that the KMT government and its commercial proxies were treated as foreign entities by the British in Hong Kong. However, toward the end of the civil war, the British needed increasingly to strike a balance between the KMT’s irredentist sovereignty narrative in relation to Hong Kong, yet keep a red carpet out for KMT generals fleeing from Canton with their corruptly gained customs fortunes.

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Returning the Banks to Mother China There were limits to accommodating the KMT in Hong Kong well exampled by the question of who had physical property in commercial premises post-war. On 12 January 1946 Mr C.K. Yun, manager of the Farmers’ Bank of China, wrote to Mr C.G.S. Fellows, chief financial officer of British Hong Kong.28 Yun declared that, “by order of the Chinese government our Bank liquidates the Bank of Taiwan and takes over the premises of the said bank in China. We shall be much obliged if you will offer us assistance in acquiring the said premises in Hong Kong.”29 The Bank of Taiwan, of course, along with the Yokohama Specie Bank, was a Japanese government proxy bank responsible for liquidating British and KMT-aligned cash reserves, security boxes, and bank accounts in April 1942. Follows replied that the British administration did not need the former branch of the Bank of Taiwan, that the custodian of enemy property currently managed it but that the Farmers’ Bank could only rent it when the true owner of the bank came forward.30 Within a couple of weeks, Yun replied to Follows that his bank had rented the premises off the owner which turned out to be a British firm, the Hong Kong Land and Investment Co.31 The exchange between Yun and Follows is foundational to understanding how the British used domestic property law as a tool to bolster their fragile sovereignty in Hong Kong in the immediate post-war years. Yun wanted the entire property in the bank as a representative of the national government of China. The British rebuffed this suggestion and offered him the chance of a lease.

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There is much in this episode to suggest the British seeing the KMT as a doomed form of bourgeois nationalism now that the Japanese had been dealt with and the communists had a free hand. Despite Yun’s practically ambassadorial insistence to resume KMT property in the bank, it was deemed as oppositional property with a “true” British owner. However, it is equally arguable that the British rebuff was grounded in experience of the colony being handed over to the Japanese for the large part of four years, and the British were unduly sensitive to foreign governments telling them what they did or did not own in Hong Kong. Most likely, however, it was a result of British fear that recognizing nationalist ownership would in effect be to give the KMT a quick-sale cash gift. Such a suspicion would not run against the grain of suspicions about nationalist property practice values in Weihaiwei either. Speculation and Nationalism The British search in Hong Kong for a Chinese metonymic by which to control land resulted in land speculation being viewed as an anti-public form of gambling. The British were quite fond of a rhetorical line that equated Chinese nationalism to dubiously-motivated or speculative or arbitrary practices over land, and which justified their own sage rule. There was an example of this well before their departure from Weihaiwei in the 1930s or their policy measures hemming inappropriate KMT investment in late 1940s Hong Kong. Tensions between Chinese and British over speculation came to a head in Hong Kong in 1922 when Colonial Secretary Mr Claud Severn introduced an amendment to the Crown

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Lands Resumption Ordinance (1921) (HK). It was, “aimed at preventing speculation in cases where purchases are beyond the value of the land in expectation of compensation to which the holder of the temporary title has no right at all”.32 The governor noted that there was nothing more certain to delay the development of the colony than such practices on the basis of “obtaining private information or guessing” on where the Crown would resume land.33 Temporary title holders were those who had bought land close to mooted road extensions and were not improving it within the two-year time limit; those with private information or guessing were insider traders or gamblers. The Chinese community protested strongly at these insinuations through its representative, the indefatigable Lau Chu-pak: Many Chinese who have invested in landed property in this Colony have been very much alarmed as to the safety of such investments and their confidence in the good faith of the government has also been much shaken [the measure was seen as] … entailing great hardship a great loss on those who have helped so largely to build up the prosperity of the Colony and entailing great hardship on the original settlers of Hong Kong.34

Lau unremarkably used the word, “settler” — a term designed to convey an equal status with the British. However, the word was substituted later in his speech when he raised alleged claims of local Chinese belonging to, “families who held lands before the island came under the British flag”.35 Lau’s point was that they were promised under the terms of Captain Elliot’s founding proclamation when Hong Kong first came under the rule of the British: “their lawful private property and interests”36 and that, under Chinese law such as Elliot had recognized, the families

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were entitled to hold lands in perpetuity. This was not the case under the seventy-five-year British leases that were instead offered. Therefore, in his view, any compensation on British land resumption should recognize this. Governor Stubbs airily dismissed Lau’s claims: “I think it is improbable that there are any number of original holders without a definite title to land”.37 For good measure the governor observed that if an occupier was not under the British system of land law, then he or she was a common squatter and that, if Lau wanted Chinese law, then, in a recent example of the non-payment of compensation for land resumed for streets over the border in Canton, “he will possibly have one of the surprises of his life”.38 The response of the Chinese to the speculation allegation illustrates their sensitivity to a claim that they gambled on rather than invested in land and, hence, their readiness in reply to dig the British in the ribs about their legitimacy by pointing to pre-British land titles. Nevertheless, the British system was not a nullity and they found the very Chinese that they were looking for, whether the administrative criterion for holding on to privately granted land was housebuilding in Repulse Bay or civil passivity in the New Territories. The Chinese landed gentry were making a claim for indigeneity such as would put them at the apex of Hong Kong people and Stubbs’ reading of Lau’s claim as an irredentist hope to return to mother China was correct and a nice example of stifling the dialectic.

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Controlling Weihaiwei Weihaiwei was best known as a settlement of a few thousand souls on the Shandong peninsula in north eastern China where Hong Kong colonials went in summer to escape the humidity and enjoy world-class beaches. Its agrarians laboured all year to raise a paltry crop of groundnuts (peanuts) and there was some wheat grown in the district too. Its claim to fame back then, as now, apart from being a seaside idyll, was that it produced the best peanut oil and cherries in China, and some of its best seafood. None of this, however, added up to it being a place of industry or prosperity. It was a backwater snatched by the British to site a naval base for its Far Eastern Fleet to prevent it falling into Russian, Japanese, or German hands. It was a placeholder colony for the British; a way of keeping up with the Joneses without spending much money. Its isolation, general poverty, and windswept winters meant that it was not a hotbed of nationalist resistance against colonial rule. If it was thought about at all by Sun Yat-sen or Chiang Kai-shek, it would have been prompted by occasional dispatches of an inferior intrigue from a local agent acting in the nationalist cause. Despite the British giving up Weihaiwei in 1930, afterwards they exercised a postcolonial sovereignty based on property rights for British residents secured under their Rendition Agreement with the nationalist government. In addition to requiring the new Chinese government honour all the deeds, conveyances, and mortgages with local Chinese merchants to

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which the British had been party,39 the British also required it to respect the property rights of foreign residents40 and for such residents to be fully consulted if any changes in their property rights were proposed.41 However, these measures of postcolonial sovereignty looked increasingly absurd after the incursion of the Japanese Imperial Army further into mainland China in 1937. After this time, the remaining British residents continued to insist their Rendition Agreement rights with the defunct nationalist government should be respected, presumably because ruling as a notionally nationalist collaborationist government was more authentic than being directly ruled by the Japanese.

Freehold Titles and Political Power The year 1930 is remembered as the year when the British colonial government relinquished their mainland Chinese possession of Weihaiwei. For the British it was inevitable that they leave. The thirty-year lease they had entered into in 1900 meant that no industrial concerns could be built up because the cycle of investment and return was too short for the colony to be a profitable place to set up. They had a lease on nearby Liugong Island that expired in 1940. Remarkably, the British administration’s land leasing practice was to offer leases beyond this year, providing a prime example of the British overextending their sovereign authority. In 1931, it gave a twenty-nine-year lease to the Society For Propagation of the Gospel in Foreign Parts (taking them to 1960) and Mr W.J. Driscoll a ten-year lease on 1 July 1935 (taking him to 1945).42 Lady Marion Pearce received a lease on her cottage of thirty-five-and-ahalf years in 1919 (taking her to 1954) and Mr Duncan Clark

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received a fifty-year lease on 1st October 1921 for The Island Hotel (taking him to 1971).43 When the Japanese extended their control through Chinese proxies of the Shandong Peninsula and Weihaiwei in 1940 some unknown person or persons went to Liugong Island and “obliterated with white paint” a British flag painted near the entrance to the settlement, and other British flags on the Island Hotel, Lady Pearce’s cottage (No. 7), and the Protestant Church had been removed.44 The British consul reminded his Japanese counterpart that under Article 3 (d) of “the Agreement” between them “K. Fuji provides that Japanese authorities will respect private British property” on Liugong Island and that “obliteration of notices and flags on these British private properties is not in accordance with this Article”.45 The British consul gave notice to the Japanese that the British flags would be repainted immediately.46 The underlying British point in this matter was that until there was a declaration of war on British colonies and dependencies in the Far East, the Japanese had no right to deal with the Liugong Island properties as enemy property. The Japanese and proxy Chinese position was that, as of 1938, the eastern seaboard of China was part of the Japanese Empire, and, as of June 1940, the island was no longer a colonial outpost of the British either. The British were more than simply irritated that removal of their flag from private buildings was a challenge to their citizens’ right to residence on the island; rather they seemed to be equating display of their flag to their sovereignty over the island as somehow being extended beyond 1940 via the agreement signed with the Japanese that they would respect British private property.

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Since the promulgation of the Weihaiwei Land and House Tax Regulations (1918), avoidance of the colony’s derisory land tax had been made easy by its drafter, Commissioner James Stewart Lockhart. Levied against property “owned by persons other than Chinese”,47 the tax was charged at a rate of a mere three-eighths of 1% of the valuation of the house or land48 and it contained no less than three exceptions that a taxpayer could plead in order to seek review of its imposition.49 The tax regulations made it clear that, although the colony had to have some sort of means to raise revenue, taxing the holiday villas of the foreign community was not going to be it. There is a surviving documented example of the policy of British lenience in taxing their own land in Weihaiwei. For ten years after the British left the colony in 1930 they leased nearby Liugong Island from the Chinese government as a naval base and Lady Pearce leased White Cottage on the island. As the Japanese extended their control over the Weihaiwei peninsula via the proxy Chinese regime, it became close to impossible for her to visit her cottage or to enjoy a holiday there. Obligingly, the British government waived payment of her land tax after 1937.50 Although motivated in part by the principle of “no enjoyment, no taxation” the decision was also consistent with a view of residents’ interests in real property as being generally unencumbered by Crown demands as one would expect freehold titles to be. Put directly, the British administration expected few confirmatory acts by residents of their title but argued for their private property interests in the international domain as vigorously as British sovereignty itself, even after the British had left. The British mistake was to make private freehold grants

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of land in a colony they themselves only leased. It was sorely exposed by the lie they had to tell freeholders: leases of the nationalist proxy government of the Japanese were just as good. This was the lie, although we have witnessed Governor Stubbs in Hong Kong disclaiming Chinese property interests as a rabble of customary and arbitrary practices. The next case considers the lie as a false choice for optimism about the future rather than revealing to its citizens how hopeless the British imperial project had become. It is a solid example of the British wholly ignoring an upcoming epistemic shift in favour of increasingly impotent projections of their power.

The Richards Case The story of a local landholder and British-born Shanghai businessman, Mr J.H. Richards demonstrates that, in the lead up to the handover, the colonial government tutored residents in the use of personal property rights as a means of asserting continuing sovereignty that would not depend on British political control after 1930. After the handover, freehold was maintained by British consuls in Weihaiwei and Chefoo (now Yantai) as being unchanged by the transfer of political sovereignty under the Rendition Agreement and was an example of de facto colonialism. Thus, the treatment of pre-1930 British grants of freehold on the mainland and post-1940 grants on Liugong Island had an importance greater than simply giving resident grantees power to avoid Crown rent or land tax, but the prospect of these were important as individual incentives to taking up land.

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The rhetoric of British freehold in Weihaiwei was put clearly on display by the case of Mr J.H. Richards. On several occasions in 1928 the colonial government wrote to him asking him to pay back-taxes from 1927–8 of HK$12.00 on three lots of land that he had purchased in 1921. The non-resident businessman eventually replied on 15 July 1929 by advising the officer of revenue that he would be glad to sell the land and pay off the loan on it and the outstanding taxes if a buyer could be found.51 In his letter he also made clear his feelings about his land under the impending Rendition Agreement by which the British government would return the colony to the Chinese. Of the colonial government he commented that, “doubtless [it] has the power to do a great many things, but surely it has not the power to take from me, without compensation, land for which I have paid full freehold value”.52 Richards proceeded to offer a string of excuses for not paying the arrears of land tax, including the liquidation of his Shanghai business by HSBC bank in the wake of the Chinese commercial boycott, and the land actually being his wife’s.53 In his view, irrespective of him being in arrears, the colonial government could not swap the freehold that he possessed for a mere lease under the Chinese system. Although Richards was not technically correct — no foreigner could own land freehold in China54 — under the Rendition Agreement he became entitled to a perpetual lease known as a “Chinkiang lease”.55 This, he was advised very, very disingenuously by the British consul in Weihaiwei, when compared to freehold, was “a difference in name only” and that “the change should not in any way affect the market value of the property”.56 Either the land

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interests of the nationalist Chinese were weak and arbitrarily taken (governor of Hong Kong) or robust enough to recognize equivalence (consul, Weihaiwei). They could not be both! The British consulate in Weihai wrote to Richards in 1932 advising that he deliver up his British deeds urgently so that they could be swapped for Chinese ones and that this was “a separate issue” from what he owed the old colonial administration.57 The British government ultimately relented completely to Richards even though there was HK$32.00 in outstanding tax. In a later letter, he was advised by the consulate in Weihaiwei that the British government “had no instructions” to recover the outstanding tax but that he “must” pay the Chinese government’s tax on his land or “the property will revert to the Chinese government”.58 This situation revealed a contradiction in British thinking about the land of foreign residents in Weihaiwei and their illusion of sovereignty after 1930. They could protect a resident from double taxation, but not their land’s resumption. There was good political sense in the British after 1930 wishing to maintain the political power of residents by promoting the illusion of their freehold title. But there was clearly an uncomfortable friction between this and the reality that the residents’ new leasehold depended on paying tax to the new government on pain of resumption of their land.

The New Government and the Old Convention Shandong came under de facto Japanese occupation throughout the Second Sino-Japanese War (1937–41). The Japanese installed a collaborationist Chinese government to rule the province

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under their instruction. The British had withdrawn from Weihaiwei in 1930 but retained a naval installation and a golf course on Liugong Island. The Japanese put pressure on the British in two ways: (1) declaring a ground rent increase on all private property in Shandong and (2) raising the question of the British lingering on their colonial hold-out on Liugong Island. In September 1940, there was an advertisement in a Chinese newspaper that, due to an increase in the price of grain, ground rents were to be raised by 30% and that the new rent was payable by landholders on pain of forfeiting their lease. In the following year, prominent resident landholders in Weihaiwei including Ellis Hayim, Lady Pearce, and the shareholders of Weihaiwei Land Co. were advised of this turn of events by Mr John Weston, counsel of Laver and Clark, Weihaiwei. He advised them not to pay the tax until there could be a meeting of foreign residents.59 In a further letter to the British consular representative in Chefoo, Weston supposed that the rent increase by the proxy Japanese government was “a method of raising the wind as there is practically no trade to tap”.60 In his reply Mr S.C. Burdett said that Weston should invoke the terms of the Rendition Agreement as it guaranteed that no increase in rent could occur without a meeting of foreign residents.61 In the following month there appeared to be a solution to the impasse when Burdett wrote a report on the situation that observed that, “an officer of the puppet Chinese administration had informed an inquirer that the increase in land tax did not apply to land held by foreigners and … Land Tax at the usual rate had been accepted by the administration by at least one British subject”.62 This note of optimism, however, was

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not to prevail. On the same day, the consul advised Weston in Weihaiwei that throughout the former colony, “residents intended to refuse to pay rentals at the increased rates except under protest and as a result of threats of force”.63 This further evidences the earlier raised contradiction in the British position in Weihaiwei. But in this case it was one after 1937: they spurned the Chinese government of Shandong province as a “puppet” government of the Japanese, but nevertheless insisted that it honour the Rendition Agreement signed by its Chinese nationalist predecessor as if there was some sort of political continuity between the governments. The British were in a real bind: on one hand, granting freehold titles in a leasehold colony and calling them the same thing to holders being converted to a Chinese lease and then arguing for the residents as if it was a surprise to the colonial office that their citizens’ interests were vulnerable to property policies of those corrupt nationalists. The British preferred false projections of their sovereignty right up until the last moment to looking the looming dialectical thrashing by the Japanese in the eye.

Postscript: the British and the KMT after the Civil War In the late 1940s, the British in Hong Kong noticeably softened their stance toward the KMT and they facilitated the exodus to Taiwan. In the dying days of the civil war a local KMT representative offered the colonial government of Hong Kong HK$31,089 in satisfaction of a debt of HK$153,868 for rent and dilapidation of Kowloon Tong properties used by KMT officers.64 This did not include the HK$2,463,497 that the

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British spent to resume the mansions from their owners in the up-market consular district. The governor, Alexander Grantham, observed in his letter to the secretary of state for colonies that it “was doubtful if Mr Kwok has resources to meet this claim” and that “anything that can be collected on account will be … saved from the wreck”.65 He added in a quip: “We are unlikely to get much sympathy from the Chinese communists if we endeavored to press this claim!”66 One seldom sees an exclamation mark in Hong Kong colonial administration documents. It suggested that the British knew the Chinese Communist Party (CCP) was aware of their leanings toward the KMT on the exodus issue. When it became clear to the British that the KMT was no longer a viable nationalist threat to their rule in Hong Kong, pragmatic anti-dialectic policies gave way to ones that forgave what could not be salvaged. By obligingly forgetting the outstanding money, the British paved the way for their retention of a consulate in Taipei and diplomatic relations with the KMT government after 1949 to the extent of irritating the Chinese communist government greatly. The British were hard-pressed for money themselves in these days, but relented on requiring repayment of the monies advanced to secure temporary accommodation in Hong Kong for the remaining military members of the KMT. In part, the decision was realistic about the KMT’s ability to pay, and no doubt made with a clear eye to the future business relationship between the United Kingdom and Taiwan. It was also something significant for those of us who follow colonial policy through a

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doctrinal lens. It was a colonial policy decision premised not on a defensive motive of frustrating Chinese bourgeois nationalism by keeping it within acceptable margins, but rather was based on an expected reciprocity with a quasi-sovereign bourgeois Chinese state. In this sense, the British autonomy game had finished much more decisively when the KMT fled for their own little redoubt in Taiwan than would have been the case had they, the British, abandoned Hong Kong to the nationalists as a self-governing bolthole from the CCP, as the Americans had demanded of them. My demonstration of the half-life of British sovereignty in Weihaiwei after 1930 and Liugong Island after 1940 suggests this strongly enough to be a credible thesis, but of course, we will never know. Speculating about “what ifs” has seemed a useful activity. After the KMT remnant forces fled to Taiwan, the British moved their property and business policy closer to the needs of its new communist neighbour. Although the CCP accepted no liability for KMT debts, by January 1950 it was quite interested in the remaining nationalist property in Hong Kong. It was reported by the governor “from a most reliable confidential source” that the CCP had already taken over several KMT businesses including the Chinese Vegetable Oil Corporation, the Postal and Savings Bank, the National Resources Bank, and the Hong Kong offices of the (former KMT) Ministry of Communications and the Hankow-Canton railway.67 These operations were reportedly wound-up by the CCP by February 1950, presumably in the spirit of not sullying one’s hands with capitalist business practices. However, the CCP did not liquidate the Postal and Savings Bank: it appeared in the companies

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registry of Hong Kong (1954) as a company incorporated outside of Hong Kong and controlled by the directorate general of posts, Peking, China.68 In the financial year of 1954 it was HK$1,715,712 in the black and this included a debt of HK$327,453 to the Bank of China. The Postal and Savings Bank ceased trading in Hong Kong on 15 February 1957. Thus, the CCP used at least one former KMT asset as a going concern in Hong Kong well after the post-1949 liquidations as a foreign exchange slush fund. What differentiated the Postal and Savings Bank from other KMT-affiliate banks was that it served a modest local clientele and it was not entirely dependent on mainland transactions — these became impossible after 1949.

Conclusion Although the British lost sovereign possession of Weihaiwei after 1930, they nevertheless continued to assert sovereignty through the property interests of British residents who retained private land there. Payment by British residents of land tax to the British administration of Weihaiwei was clearly optional, as both Richards and Pearce held on to their title but did not pay tax. This shows that when British landholders were granted freehold, it was treated by the government as a true freehold title. In 1941 the residents’ refusal to pay a tax increase to a Japanese-aligned successor Chinese government indicates that, although they had converted over to a lease requiring payment of land tax, they continued to assert their interest in their land as if it was still British freehold. In this, they were bolstered by their Rendition Agreement rights until 1937. After this time, it did not appear to matter to British landholders or their representatives that the

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Rendition Agreement of 1930 had been signed by a different Chinese government. Even though its successor was dismissed by the British as a Japanese puppet, oddly, it was also bound in their view by the Agreement to respect the property interests of Britain’s foreign residents. The ideological gymnastics it took the British to maintain such a view with a straight face speaks volumes of what their Eastern Empire had become. Until the commencement of the Pacific War on 7 December 1941 by the simultaneous Japanese attacks on Pearl Harbour, British Malaya, Singapore, Hong Kong, and remaining British residents in Weihaiwei could maintain a legal illusion that they were made inviolable by their property rights even though their world was changing rapidly around them. In 1930, the British were motivated by the vanity of geopolitics to elevate concepts of domestic property law to the status of international law under the Rendition Agreement. After 1937, British freehold became entirely rhetorical but residents could not come to terms with the fact that the guarantees made to them by the old colonial administration were meaningless to the Japanesealigned Chinese government of Shandong province. Weihaiwei was a small and chronically underdeveloped British colony that never became the vaguely hoped-for Hong Kong of north east Asia. The British could have nominated an optimistic duration for their sovereignty in Weihaiwei so as to attract industrial investment, yet to their credit they did not. But there was unwarranted optimism in offering indefinite private interests in residential land as late as 1921 when, within a decade, they were to relinquish the colony to China, or at least, its deceptively well-brilliantined nationalist sons. By 1921, the

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British were simply waiting for a stable and compliant national Chinese government to whom to hand the colony over, but events forced their hand. Part of this strategy had been to secure British sovereign-like rights for British residents. The British of Hong Kong provided no protection for KMT property after 1949 and provided no obstacle to the CCP selling off or using ex-KMT capital and business premises. This state of affairs indicated that, although the British had rejected KMT claims to ex-Japanese property in 1946, they did not give the same response to the CCP when it asserted its right to KMT property in Hong Kong after 1949. Such appeasement is hardly surprising. Hong Kong in the post-war years was a precarious bauble that swung beneath the underbelly of communist China. There was no point in the British being transparent to the CCP for forgiving KMT debts in the dying days of the civil war, as this was its entrée to diplomatic relations with the KMT in Taiwan after 1949. Whenever “native others” benefited from colonialism, it was due to a perception of their rulers that colonial conceits and habits had been adopted in form, if not quite as a calling card left presumptuously at the step of the white master, then nearly always as a signal of loyalty through duration of residence, constructive use of land, and avoiding newspapers with a red star or a billowing steam engine on the masthead. The development of local people through such moulding was a preoccupation of British rulers but its rise as a technique in late empire was too little, too late.

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Law was not merely an advertorial ideology, or a specific means of underwriting policy prescription in an anticipation of dissent, or even an referent carried in British hearts to determine what issues would be deemed “judicial” or “political” or routinely “bureaucratic”. Nor was law quite a tight-necked funnel, restraining the passage of a large volume of humanity from a state of suspicion to one of intimacy. Law was more than a test for administrative approval and, implicitly, less surveillance or, more accurately, more licence. Its primary role was to supply unambiguous prerequisites for native interpellation (I would say self-selection) in the scramble for commercial, political, and social prizes of a colony that increasingly presented a “panracial” skin but were actually “anti-nationalist” to an extent implying requirements of self-loathing and self-censuring among the Chinese themselves. The British deserved little better cooperation than they got, and on an instinctive level, it can be safely assumed that they knew it.

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5 Reading Capital, Reading Colonies

Introduction Why, at this point in the book, dip back into discussing the writings of Althusser or their implications? His limitations have been laid bare, his critics given free air, and a modified form of his ideas has been deployed in the British Far East. Yet I say Althusser, like a hungry ghost, needs to be banished with a forceful incantation, or else welcomed, hale and hearty, back into the way we read history and law. My concern is that his continued disavowal is unnecessary. We can always pick and choose from among the useless and the prescient in his writings. But the time has come to give credit where it is due. A brigade of academics have robbed his legacy of its greater and lesser treasures, and in their continued silence contributed to its tarnish. They have not recognized their debt to him. Witness how routinely appropriated are his staples of “interpellation”, or “effectivity”. His tasking of “overdetermination” with a

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sociological role, his incorporation of Lacan’s analytical ideas, and nods to Maoist revolutionary theory and practice, have also been influential. “Outlier” is no more than the concept of problematique made to sound American. Each of us has an intellectual journey to make. Denying Althusser was ever part of it feels false to me, and in this, it would seem that I join a huddle with Young, Balibar, and scant few others. I took to Reading Capital shortly after the author’s death, strayed away for a few decades, and only resumed reading it in my mid-forties. Part of my resumption of Althusser has been to do with the discontent I felt at the subjectivism and historicism in my academic work. I know that when one has been to more than a few archives, wrangling little answers into a plausible, internally consistent narrative becomes not quite the fun it used to be. Tired of discovering white boy saviours and return ticket suffragettes, or composing haikus to tycoons, my own endless scramble up and down bamboo scaffolds of time and place seemed, finally, without much purpose. I had also written a dozen or so academic papers, each specific in their own way, but in the general vein of what Benton thankfully termed, “jurisdictional politics as the medium for the formation of state authority”.1 Tired of producing my mandated outputs, I returned to Reading Capital. I hoped that my renewed pupillage under Althusser would feel like a sly holiday with someone with whom I was once familiar, or at least a nostalgic side-trip. It could be neither. But Althusser was never anybody’s sidekick or consolation; he was always a “take it or leave it” proposition. A little later in this chapter I want to address that divisive capacity in Althusser’s writings.

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Part of Althusser’s rejection by the academy was to do with his near-impenetrable writing style in Reading Capital. It often feels like listening to a conversation between two people that you have joined midway through. Yet there is no substitute for reading, rereading, and re-rereading its labyrinthine paragraphs. This process requires some imagination on the part of the reader. The reader must go back to the original French and check the translation; accept or query that the translation is what Althusser meant; read it again. In the act of rereading key paragraphs, the reader must bring forth their own theory, follow their own suspicions, and verify their own revelations. On a bad day, I watch myself lurch from one shrouded paragraph to another. On a good one, I fit a ropey footbridge between two opposing precipices. Reading Capital offers no guarantees. Althusser put a glossary of his unique “–isms” at the back of his book. But in the course of the text he never checks in with the reader to see if you are alright. He never lapses into banality by being overwritten either. In that, you can trust him. His style is spontaneous because he was fevered throughout the writing of Reading Capital, and, a little like Freud, his term definitions could be elusive and evolving. Lucid or not, he held nothing back. Many of his conjectures were delivered with such beguiling assuredness, too. There was a touch of a devious avocat d’assises in the old pied noir. Reading Capital makes it abundantly clear that there is a difference between being a Marxist and a postmodernist. This is particularly evident in postmodern writings on the colonial world. Postmodern inheritors, by moving far away

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from the constraints of unexceptionable doctrine, have been driven to a make propositions automatically referring to a counterargument. This is also very legal way to see the world; for lawyers were postmodernists even in the time of Marx. The technique graciously accepts that there is ambiguity held by competing narratives but that the lawyer’s interpretation of it, of course, is to be preferred. The main postmodern development has been for inheritors to turn a ceaselessly remorseful gaze to their ancestors, as if there was only one way to see them: unmediated by their environment. In their regret for colonialism, it becomes individualized but mystically representative, made into a distant, nervous folly aimed at little more than reconstitution of middleclass self-esteem abroad though stringent positions on interracialism, and wallpapering over contradictions with excuseideologies. In humid school rooms, busy shipping offices, vestries of state and church, these shameful men and women are hunted down. Every wave of a gloved colonial hand, mutter of irritation, or failure to mingle at a bridge party, was evidence of their hopeless cause, and gleefully accepted grist for their fatalist biographers. Their solitary, blanched presence under a bunting strewn, elevated pergola was never quite enough to inspire, and so all that is left is the vivisection of perversities, mundane and kinky alike. Any further invocation of history’s purpose is studiedly ignored. Foucault had told the biographers of these people that it was permissible to have strong ideas about race preceding sexual ideology in the colonies, and to detach such concerns from broader currents of history, including the beginnings of constructive modernity in colonial Eurasianism.

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Such was the loss of ambition flowing from ditching Marx, that the individual and the subjective became the starting point from which modern accounts have never quite departed. This has been at the expense of a frank account of race and nationalism in the workings of historical materialism. Apparently, despite their culpability, the troubled Europeans of the late empires can neither entirely deserve an abyss nor be seen as being just like us, whoever “us” might now be. Yet Althusser warned that unless colonials were evicted entirely by local people there could be no dialectical progress but just a weak apology for it.2 Postmodernists have little taste for this idea because, having given up on a revolutionary goal, they cannot entirely disclaim their immense relief that its anticipatory fits and starts can, at last, go unappreciated and unreported, along with the postcolonial tentacles of European capitalism still enfolding the rest of the world. European individuals, along with their institutional and provincial laments, can retain a significance that they were never meant to bear. European intellectuals seek not to identify colonial frustrations of the dialectic but, rather, use occasional re-enactments of distant anomalies to stress their apparent disconnection from them. By offering a boundary busting, didactic lens on the old problems, if not current conditions, Stoler easily surpasses the pack, but, considering the eloquent, deeply unimpressed developing world tide heading this way, now such as no other time, history must relate to the present and own up to the sham of human rights. I want to show a way to receive Reading Capital into the experience of the colonial present, and make a few comments

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on how our reading of colonies might profitably be improved as a result. Before I do, let me explore the considerable dissonance between those who believe in history’s larger frames — such as dialectical materialism — and those who do not. Most of us have insufficient access to the conch to make verifying the science of history as a political act; so most of the time we settle for personal therapy in history. The debates sparked by Vivek Chibber and the unanimity behind Kevin Anderson have, at the very least, showcased the considerable depth of interest in the questions posed by dialectical materialism. In the final part of this chapter, I fit Hong Kong examples of ending constraining bourgeois nationalist investment, ending residential apartheid, and constructing the legal personality of locals with formal interests in land, into a model of dialectical materialism that saw successive colonial governments active in constraining history by legal prescriptions about real property.

Reading Capital Within the academy there is fierce competition on the question of who is to write history, and their qualification to do so. The main battleground is how words are used to promote a particular subjectivity of anthropology or history, not how they are correctly expressed through historical theory. Many historians strive in their use of language to convey an impression of verve, erudition, or freshness, which, judging by the imperious and perfunctory displays they put on in conferences, seems mostly motivated by a desire to publish in prestigious presses and sit in a coveted Chair. For these reasons, most of them talk

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among themselves to the exclusion of popular communication, and they certainly do not define their contribution by its relation to meta-theories of history. As a result, academic history these days resembles a TV screen encrusted by its own transistor boards. Learning a new vocabulary is an apprenticeship to history, of course, but many seasoned practitioners never depart the jargoned path. Abandoning the use of self-referent vocabularies, and promoting the ambition of a history, are necessary qualities of academic history if is to serve a broader purpose than careerism. I also suggest generosity for history that, among today’s gatekeepers, is immediately dismissed as lower-rung work because its exponent has or has not trained in cultural studies, history, social history, philosophy, anthropology, sociology, literary criticism, or legal history. This is not to suggest that the Balkanization of history is never useful as quality control, or that “what if” history is acceptable, or that the bestowal of a historical category to nicely researched fiction is justified. It is, however, to suggest that after consensus is reached on “what happened and in what order”,3 as Macmillan put it, dialectical materialism’s equal availability to a wide variety of disciplines can make vocabularies second to evidence-finding research. This in turn allows us to offer critique to the objective of another’s history, and implicitly, its ambition as a beginning point of discussions. Surely there is scope for productive discussion, even if we see the same thing a little differently. The censorious among the subjectivist Left are themselves perpetrators a few generations removed, or descendants of the actually abused. They speak with no-one, let alone debate. Inherited guilt is as hard as intergenerational pain to get past.

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Pulling a face at another’s historicist leanings, when licensed by pulling a face at one’s own, can shift us from the bickering vanities of their being “one true path” toward fit-for-purpose, hybrid methodologies that float comfortably enough between plantation subjectivism and the tone of religious exegesis of the cannon which remains the perverse want of many Marxists. When called to review the colonial past, historians, as well as political philosophers interested in history, take their filter into the archive. A filter often gives a researcher a false sense that how their narrative is constructed is unique. Some would like to think that their filter uniquely winnows fact from supposition, lies, or amateurism. It has become unfashionable to attune facts to one’s filter. That has been a consistent criticism of historical materialism. But how far can one attune one’s filter to the facts without succumbing to paralysis? My recasting of relative autonomy as a legal and institutional hybridity, or top-down compensatory commands, was historicist in the sense that I noticed facts about British rule out East. Yet when facts were assembled into policies or patterns, say, the field of rent control or land investment restrictions placed on bourgeois nationalists, the subjective empire translates up to a vocabulary of a higher plane. Pattern-making within a materialist framework is superior to pessimistic extrapolation of subjectivity, or unapologetically ignoring the larger implications of one’s study. Morris said of her history of Empire, “if it is not true in fact, it is certainly true in the imagination”.4 This implies that there is a difference in what one finds inside faded cloth-ribboned files delivered after a forty minute wait and the history for which one hopes, aims, or dreams. I beg to differ slightly. Having sat, often

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in chilly archives with naught but a pencil for company, what is in the file when it arrives does matter, for you are there for an educational purpose, even if you are the only one who cares for it. But the file never matters more than when it corresponds to your imagination. Historical materialism, either in its highest abstraction or after suffering permutation, should be seen as imaginary until successfully populated by examples. I mentioned in the introductory paragraphs of this chapter Althusser’s reputation as a divisive theorist. Reading Capital is a jumble of acute imaginings spinning around a single idea that human agency is not important, except as a drop in an enormous and irresistible wave. This separates nice people from nasty ones. This belief is how quite blameless people can be killed in a revolution and it does not matter a bit. That’s how Lenin could come from a well-regarded aristocratic family and promote terror on his own class in the sure knowledge he could institutionalize it. Riding this indifferent tide into the archive, I will see people only as representatives of reactionary or historically progressive forces. I score the position of a transitional government against a prim orthodoxy. As a nasty person, I do not count the corpses it left in its wake or dwell too much on the lost opportunities of nice, professional people from smart suburbs. In 2014, when Althusser’s ghost beckoned me to take him to the British Far East, I agreed. But before long I was swept up in his passive-aggressive tirades about how to write this book. He soon turned me into a burnt-out devotee. For many people, there were not only problems in what Althusser meant, but in the impression he gave. He worked on such a level of abstraction

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that he seldom deigned to give examples or acknowledge the work of others approvingly. This absence of generosity figures often in neo-Althusserian works; much more of a coalitionist approach seems warranted. Reading Capital seemed conceived as a high-minded polemical provocation aimed permanently to disqualify Althusser’s invitation to dinner parties. Althusserians are congenital loners who seriously underestimate the need to be loved that so motivates our critics. But we understand perfectly well why our disparagers do not find fulfilment in Reading Capital. Perry Anderson and Robert Young have taken a structuralist account to the colonial problem to at least stake the terrain out theoretically. I wish to argue that the determinism of Spinoza found in Althusser might help theorists sharpen up their empirical practice of colonial history by recognizing that invisible constraints on individual agency were not the statecraft of Western states alone; yet when transposed to East Asian colonial settings the results were decidedly mixed.

Reading Colonies Althusser’s ideas on the faceless relations of production showed how Marxism regards humans as little more than recipients of pain in the name of a greater idea, or for no reason at all. Having read Spinoza, Althusser thought not that the masses deserved it, but that it was inevitable. Spinoza had described their incomprehension of the forces that surround and propel them to ends other than their own. They lead blinded, manipulated lives. Their near annihilation in a bad season, a frightful campaign, or a sooty mill made dissenters of them

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overnight. If epistemic shift meant anything it was that neardeath made a real life seem tantalizingly near. In contrast, the Chinese of the Far East so often saw the British coming, or were so culturally imbued by their own cultural delusions or productive preoccupations, that the British could have little impact. The Chinese always had other ideas. It also made them impervious to a Western calculus of church, state, and unassuming obedience; their obedience was bound up instead in Chinese nationhood, or zhonghua minzu. Attempts at legal and political accommodation deserve to be seen as constituting British colonialism in the Far East, but not because they were the product of a debate between Spinoza and Confucius about what colonial obedience might be deemed sufficient. Spinoza could never be enforced at gunpoint. His whole idea was to say that human agency was not controlled by heavy-handedness but by letting the masses believe that they were free but unfortunate, or duty-bound in a religious sense. It was as though the Chinese followed a different god, that of Chinese/Han nationhood, and could not be converted. They were imbued with a sense of history and tradition that Spinoza would have recognized as equally blinding as that affecting the Western masses. But out East the fixtures and forces ruling individual will were a world belonging to the Chinese shadow puppeteer, not the calculations of a French marionnettiste, or the uncouth violence of a British Punch and Judy show. Of course, British colonial governments never stopped the British trying to secure their own will, one way or another, and hence my interest in the intentions of colonial officers. For Althusser, a hallucination was a fact to the person to

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whom it occurred. For me, the plan to further concede to local wishes was a fact amenable to inclusion into a broader pattern of conduct, not as if it had been done, but as if a part of a blueprint that also contained settled hybridities of law and state form. Plans for rent control, or plans for investment restriction, recognized the epistemological moment of an Eastern government when Chinese nationalism endangered the capitalist piers of the teetering, untransformed colonial state. Reading Capital was written by a heartless man, who saw warmth and humour as distractions from him describing his enemy clearly. But it can be used interpretively too. A fantastic machine was described by Althusser comprised of an economic base and political superstructure, modes of production, social relations of production, relative autonomy, ideology — a lot on ideology  —  interpellation, degrees of effectivity, problematics, symptomatic readings, continents of history, making things concrete, and Spinoza (he is never far away). A difficult one to construct, I nevertheless felt I had reason to believe that something useful would roll out. In an Eastern colony, a high level of superintendence, shipped-in expertise to single out troublemakers, the walls of censorship, and gangplanks of administrative authoritarianism combined to leave little to chance. Althusser felt no need to enter Fanon’s backyard because after all Algeria was his, too. Fanon wrote, that the policeman and the soldier are, between the native world and its ruler, the “official, instituted go-betweens”.5 There can be little doubt of the role of education in conditioning “the moral reflexes” which in turn “lightens the task of policing considerably”.6 Althusser, as Fanon, must however be adjusted

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to the Eastern colonial world’s administrative methods, and reminded that the patterns of Europe — like the axes and saws that were quickly dulled by the hardwoods out East — did not always cut it. The British “out there” were much less concerned with reacting to revolts or policing or educating communities than they were with monitoring the connection between their routine administrative-legal interventions and the behaviour of their subjects around property disbursements. I can read Althusser whilst having parallel thoughts about the way the British governed that are stereotypical and inauthentic — the product of myths entrenched by generations of historians decrying all methods except positivist ones, lacking imagination, and having no curiosity about blurred edges. Or I can read him and, in parallel, follow my own heretical boulevard, seeking archival confirmation for an idea about how the British governed. I will be accused of taking Althusser and provincializing him because I question his idea of uneven development as an unavoidable “primitive law”.7 The contest of civilizations via imperialism does not produce political or economic unevenness. The field of battle is not “the reciprocal interaction of the inside and the outside”.8 Rather, understanding the inequality of origins as an a priori and singular idea makes the concept of the development of a social structure in the Third World a deeply vexed idea for Althusser because relative underdevelopment between East and West is much less important than how and why underdevelopment of the whole occurs. This Unitarian streak in Althusser was seen earlier in chapter 1. His dismissal of Third World readings of the role of race in the construction of social relations of production is the

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same as him not accepting plural ideas of uneven development, or his one size fits all conception of historical materialism. This is to forget for one moment his flirtation with the multiple temporalities and productive mode disjunctions inside a single colonial state  —  a seeming contradiction of his thoughts on underdevelopment and possibly a reason why they did not explicitly reappear in his opus Reading Capital. When Althusser is unitary and unflinching he indulges in a conversation that Europeans are having exclusively among themselves. He alienates most people on the periphery who do not think it historicist or unduly subjective to say that capitalism did not win entirely in our country, or race and its proxy nationalism accelerated historical progress, as evidenced by vain colonial efforts to gag their influence on the timing of decolonization. The biggest problem with seeing unevenness of economic development as poorly mixed cake with clots of chocolate is that the less uneven West, and the more uneven rest, describe the legacy of an internal/external colonialism. Key to success in reading colonies is an examination of founding myths. For example, the standard view of Hong Kong — the bourgeois historical myth — was that it welcomed international capital, placed no restraints on it and has been a bastion of laissez-faire without peer the world over. In the 1920s this account was quite untrue: all foreign banks and trading corporations, including the Americans and the Dutch, had to make a special application to the administration to buy Hong Kong land. The significance of investment control was political; it was a dialectical inhibitor of the first order. Let me turn this claim into a fact.

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Controlling Nationalist Land Investment The relative autonomy of a colonial government out East usually relied in some part in control of land not only as a planning but also a political exercise. In 1924, pursuant to section 253 of the Companies Ordinance (1911), Yeung Shing Fire Insurance and Investment Co. of Canton made an application for permission to acquire immoveable property in Hong Kong.9 Philip Jacks, the registrar over foreign land transactions in his capacity as land officer, recommended that the company, a front for the southern clique of the Kuomintang, be limited by the prevailing practice of only allowing foreign companies to hold mortgages. The company was to be denied “the wider power of acquiring by purchase as well”.10 In addition, if it wanted to make purchases or initiate foreclosures, it had to ask for “special consent”.11 This, it may be recalled, was substantially the same case under Mr D.C. Barty’s administrative reign in 1948 (chapter 4). This position, that foreign companies could hold mortgages over Hong Kong land but not buy it or foreclose their mortgages without the administration’s permission, was applied equally to the Japanese state’s proxy bank, the Yokohama Specie Bank,12 another KMT bank, the China State Bank Limited,13 and the American-owned National Aniline and Chemical Co.14 Just the same as local British residents, however, companies incorporated in Hong Kong by local Chinese were not required to seek permission to purchase land. The rule against non-permitted foreign purchases was not a blanket rule. Administrative discretion was used by Jacks on one occasion to allow unmonitored purchases by the Kwangsi Bank, albeit retaining the requirement to advise of foreclosures.15

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These recurring windows on British administrative domination of foreign investors can be viewed a few different ways. It challenges a very pervasive laissez-faire myth, but that’s neither here nor there. These episodes were an example of protectionism as the British were ring-fencing rights of purchase and foreclosure and making sure the right thing was being done to the right person. More specifically, however, it refers to a ridiculously profitable monopolistic interest in development of land defended tooth and nail by the British, and their local, non-nationalist proxies. The genius of British colonial administration was that an apparently evenly applied rule had a special row of back teeth reserved for an anti-nationalist purpose. More importantly still, it illustrates something about the dialectical inhibitors I seek in history as a result of digesting Reading Capital. What Land Officer Philip Jacks was doing was administrating a mutually solicitous coalition of trust and preferment between the British colonial government and local Hong Kong people. A free-for-all over local land would have jeopardized British political control. The wrong sort of people could not be allowed to make profits without supervision. That was the chaos of Shanghai. It was not to be encouraged elsewhere.

The Death of Residential Apartheid While considering myths of Hong Kong, it would be remiss not to include a refutation of the one about residential apartheid, and to consider abandonment of it as an element in the British autonomy palette because it was a contradiction which tarred the local colonial offer. Residential segregation affected

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those bourgeois Chinese the British wished to court with a constructivist agenda. Although a racially open land market had been reached in practice by 1880s, the growing prosperity of local Chinese merchants meant that, except for the Peak and southern Cheung Chau, European residential segregation had a negligible effect on where the Chinese lived. The vast body of their compatriots could not have afforded digs in a European enclave, in any case. But European land reservations had a perverse effect on the movement of expatriates. They were in a small minority and always moving in and out of Hong Kong; they continued to maintain residential reservations for themselves without increasing their own housing stock. Thus, rent became too expensive for many of them even without Chinese competition. The Land Commission had struggled with this problem in back in Des Voeux’s day, in 1886: As rents increase, so, in like proportion, do rates, and the result of all these combined causes is that houses for respectable European families are difficult to obtain; rents are constantly being forced up higher, and the Commissioners are informed that a large number of the poorer classes of the European community are compelled, to their great detriment, owing to the high rents for even the smallest European house, to live in Chinese houses.16

In order to give such tenants rent relief, the commission could only timidly put forward, “putting land in the market for sale at a reduced Crown rent or otherwise”.17 In 1923 as in 1886 rents continued to surge upward because Europeans were hesitant to build in their enclaves and yet ever more of them sought only to rent the small European housing

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stock that was available rather than enlarge it by building. In a mea culpa speech given by the colonial secretary in the Legislative Council in 1923, the Colonial Secretary Mr A.G.M. Fletcher précised the outcome of closed markets: “Economic pressure … is gradually driving the Europeans out of the districts in which they have lived for many years”.18 In response to the complaint that rental payments were becoming too expensive for Europeans because there was too great a demand to rent in European-only areas, Fletcher reminded the council that a few years before there was mooted by the government the setting aside of a large area in the Lower Peak Road area for a European reservation but that it had come to nothing because a minority of the householders wanted an open market for their houses so they could be sold at the best price when they left the colony.19 A single land sale to a Chinese purchaser in Lower Peak Road in 1923 had scuttled the enclave plan. The colonial secretary put a position that, if five people came to him desiring to build in a reservation he would grant them one but otherwise, they should stop complaining about having Chinese neighbours or paying high rents to live in an enclave.20 Residential segregation was visibly crumbling in 1923 because there was no economic incentive to improve land in a racial enclave and, in part, this explains why the open market in Repulse Bay proved to be attractive to Europeans and Chinese alike. The death of residential apartheid occurred because it was anti-Chinese, antimiddle class, anti-constructivist, and played easily into bourgeois nationalist critiques of colonialism.

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Constructing Landed Citizens One subjectively decides on the most important questions and darkens the door of an archive with them tucked under one’s arm. In my case, the whispering question was: what evidence can I muster to demonstrate the anti-irredentist reason for British policy on land titles in southern China was one they consciously acted upon? I had an idea that Hakka villagers in the New Territories, south China, held their lands not in reference to the ninety-nine-year leasehold of the British giving their ruler dominion and a right to register titles and extract Crown rent. I believed instead that they flipped in and out of formal interests in land depending on what suited their needs in a given moment. This, it seemed to me, did not go necessarily to a so-called “ungovernable China’ thesis but one of British rule accommodating locals so that they would not make a point of self-determination, or outright war — the Hakka were quite capable of that, as their six days of armed revolt in 1899 had shown. I would later theorize it as institutional hybridism of the sort characterizing colonial autonomy from that practised on home shores. Happily, my suspicion that Hakka interests in land crossed formal and informal bounds frequently turned out to be correct. But assigning British absolution for this characteristic to their desire to make the New Territories some sort of bulwark against Chinese customary land holdings and the republican anarchy it implied, was quite another. Occasionally in the archive one has a “gotcha” moment but, more often than not, one assembles political context around individual actions and settles for a correlation rather than causation. The problem with intentions

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and plans is that they can be kept, encoded, in three or four heads and never spoken about or committed to paper. In February 1942, barely two months after the Japanese occupation of Hong Kong, Shing Mau Fong bought a building lot in Hang Hau village for HK$250 from Hung Kam Loi. Neither wanted to pay stamp duty to the Japanese so they kept the transaction between themselves. Shing would not have wanted to have cash on his person or in his house and was making the land into a system of stored value. The deed of sale between the two was the only evidence of the transaction but in his deposition, Shing said, “As the villagers were often molested by Japanese soldiers, I frequently fled the village for safety; and I lost the deed”.21 When the British returned after the war, Shing asked for the title to be put in his name. He had been paying Crown rent regularly for the title from 1946 to 1960 in the name of the vendor Hung but now wanted his name on the title because “it was most inconvenient now managing this piece of property without the proper title”.22 He had built a fine house on the land and wanted to mortgage it. Hung had died without successors two years after the transaction. The land court sat, witnesses were called, and although none provided conclusive testimony, the assistant land officer decided that, “evidence is just strong enough to establish probability that Shing Mau Fong did buy the land and order that it now be registered in his name”.23 The story paints the British administration in an obliging, credulous, and pragmatic light. Administrative accuracy was important but so was a pattern of conduct in informal titles that mirrored expectations of the formal: “Plaintiff has been

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paying Crown Rent. Not collecting rent but started proceedings reasonably soon after someone showed interest in the land”.24 Correcting the register of land interests was, as a routine administrative exercise, a reference to a higher sovereignty, not merely in terms of who issued the papers and received the taxes, but, by identifying Chinese subjects who behaved as a responsible part of the British colonial polity, the pale of the constitution became a little less pale than it had been. A British impulse to co-optive policies, one could surmise, was well illustrated by Hong Kong’s late decolonization in 1997. A second case of interest concerned Wan Shek Lin who bought several paddy fields in Nam Shan, New Territories for HK$250 from Ho Lam Shi during the Japanese occupation.25 There were two conveyances on sale as proof of the transactions, but neither party knew how to transfer the property to the purchaser. When the occupation ended, the vendor claimed that the transaction was merely a mortgage and that she wished to repossess what she regarded as her land. In giving judgment for the plaintiff in possession, the land court in 1955 gave its reasons: the plaintiff had paid Crown rent via the defendant since the transaction, he had remained in possession throughout the occupation, the defendant had not proven her allegation that the conveyances on sale were fraudulent.26 Again, there can be observed in this decision a range of civic expectations of Hakkas made by the British; there appears to be a pattern of the law steering conformable informality into an officially recognizable interest in land. Let us say that a policy of British administrative confirmation of informal Chinese land interests can be established

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conclusively and was borne out by a majority of subsequent cases. Nevertheless, neither Assistant Land Officer, Mr A.P. Richardson in Wan’s case of 1955, nor Assistant Land Officer, Mr “L.B.” ruling for Shing in 1960 said in their judgment: “The plaintiff wins. That’s another one in the eye for the oppositional assumptions of dialectical materialism”. So much of what colonial agents did was not spoken about. Decisions, irrespective of their clear civic context, were made without political rationale being made explicit. Their interpretation of factual contours and ascent to decisional vistas walked the walk of administrative and judicial precedent. Whether feeling upset by exceptional facts or called to confirm the run-of-the-mill, the decision-maker expressed their decision as a set of reasons which broke a deadlock between civil parties but which can only be read meaningfully as a correlation to the higher purposes of colonialism.

Conclusion Does a legal stipulation always emanate from a political purpose and, if so, why? Late colonial stipulations often look unremarkable, they are framed passively, they are common sense, they offer a plan to an individual to receive redemption. But when applied to human conduct, they are found to contain rebukes as well as licences. From legal characteristics one can divine the power relations between humans, how one was assigned worth and another was not. The postcolonial reproduction of these characteristics makes the old, new and the new feel old.

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There is no suspicious disconnection between “how it was” and the recorded missive when it falls short of my imagination of historical materialism. Governmental affairs, in their dry prescriptions and examples of orderliness, were the world as the ruler wanted it, the world that was offered to the “subject race”, the one the ruler thought a subject deserved, and would believe in just enough to make earth into bricks and rooms out of air. This process was not necessarily about duping people into doing things they did not want to do, but rather gave them the rewards reserved for formality when they acted along the right lines, informally. To some measure, their confidence was gained in the process. The treatment of informal title holders of the New Territories suggested as much. Residential apartheid was bad for white sojourners, bad for Chinese people, and it hurt the reputation of the colonial enterprise. Worse than any of these things was the signal that it sent: the British were protecting their productive opportunities on grounds of race. One might think that the free and open constructivism that made places like Hong Kong and Shanghai glittering pearls of the East was only a deceitful ideology, and demotivating as a result, if not enacted 100%. Yet if we compare the handful of residential reservations in favour of the European community on racist grounds to the systematic vetting of KMT investments in land as if they were foreigners, then it becomes apparent that constructivism was a British game of smoke and mirrors. Checking nationalism was an exercise in racialism for the British colonial administration of Hong Kong that was given cover by pointing to the local Chinese and conferring on them the benefits of nativism.

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Althusser’s fearsome terrain was the political DNA of the post-war Western state. Despite having his patient student Balibar in his base camp, he was a lone hiker. My chosen hills are conceivably less knowable than Althusser’s. The constituent states of the British Far East were always at any moment technically severable from the empire but the timing of one or another’s departure from the fold and its relationship to a broad dialectical model remain novel questions largely presuming a pattern. This requires evidence beyond the slender span of these pages, and, I suspect, this life, unless another should be tempted to try. Before moving to the concluding chapter, I want to raise the problem of substantiation and why some, but not others, are called to it. The archival file, by its nature ignores, lies, misleads, and disappoints. Imagine its meaning when the legal limitations placed on a subject’s behaviour were elevated to how the entire jurisdiction was run. What sacrifice was asked of an individual to belong to a colonial community? Reward, equally with retribution, compelled individuals to be less free. People can be less free, and happily so. The British approach in the 1930s of paying people to be less nationalistically inclined was accepted gratefully by some yet rejected by others. The matter for verification was the consistency of its use as a policy across the Empire, not how it was received in a particular place. The British Empire put great store in continuing to appear to be trying to win over those who needed to be won over. Hence, my concern in these pages has been for the presumed intentions of history as well as the deliberate acts, for it is the contingency

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blueprint of colonialism, not just its established fixtures and buildings, that matters. I am somewhat buoyed that I have not completely failed to find examples of both in this chapter.

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6 Codas

Introduction In this concluding chapter I want to reflect on what my historical studies of China’s quasi-colonial era might mean for the country we see today. I would also like to indulge in a few general reflections on what it means to be a Marxist these days confronting Althusser’s so-called “great continent” of history. In particular, I ask whether writing up history in a way that factually enlightens others is quite enough. Should writing history exhort readers to a revolutionary praxis? Before answering this, I offer a summary of the findings made in each of my chapters and offer a few implications of this history for the way modern, capitalist China can be viewed.

Summary of Findings Chapter 1 made an argument for China’s exceptionalism to Marxist theory on dialectical materialism. It set out the key ideas of Althusserian Marxism and the limitations of it in the

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reinterpretation of colonial history. In particular, Althusser was mute when it came to explaining or giving weight to the effects of racism and nationalist racialism in the progress of history in the Far East. Conventional Marxism, applied as a doctrine, effectively sidelined the influence on the dialectical process of elements such as racism and nationalism by giving the expression of social and economic class by the mode of production a pre-eminent position. This bias has led to a reading down of Oriental modes of production. Marxists have been as guilty as capitalists in giving every economic system other than capitalism a racial reading. Quite apart from the bias in reading non-capitalist modes of production, chapter 1 also alluded to the exceptions in China of its non-conforming traditions of private entrepreneurialism and dilute tri-partite colonial experiments, such as in Shanghai. Chapter 2 investigated a multitude of academic complaints about relative autonomy as an explanatory theory for law in well-developed Western countries. It was found that its application to the colonial experience has been slight, except for the works of Robert Young. Having met the criticisms of autonomy as being misdirected, chapter 2 sought to redesign autonomy as an authoritarian colonial technique. It nominated the specific techniques of property law that comprised it, and which were to be applied in the subsequent chapters. This included a discussion of how the British found the limits of racism as an organizing principle of colonial government in South China in the mid-1920s. This was an argument that relative autonomy was driven by economic epistemic shifts long known to the British but only acted on in the nick of time.

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Chapter 3 focused on rent control. It investigated the postSecond World War use by British colonial administrations of rent control to manage the finishing date of their rule in several important Far Eastern jurisdictions. It contended that especially well motivated anti-colonial movements anticipated and nullified British attempts to use social policy on rent and statutory tenancy to hold on as the colonial power. In Ceylon, landlordism was synonymous with the bourgeois values of the new independent government and in Burma, not paying rent was the goal of communist elements of its national government. The chapter found that the British used rent control as an instrument of slowing decolonization but had varying degrees of success across the Eastern empire. Hong Kong and British Malaya were delaying triumphs; Ceylon and Burma were failures to hang on. Chapter 4 assessed post-Pacific war Hong Kong and interwar Weihaiwei. These jurisdictions were used as examples showing whether the British were resident or not in their colony, could on occasion, make little difference to their elevation of local property policy to a geopolitical statement. Far Eastern colonialism came to be a game of swings and roundabouts in which the British clung on by allocating and protecting private property interests with explicit counter-nationalist political aims in mind. When the KMT left Hong Kong after the civil war, the British colonial government in the colony switched from blocking their investment requests, in favour of local nonnationalist Chinese, to cultivating their old foe as an investor who no longer threatened their political power. When the British left Weihaiwei/ Liugong Island, protection of remaining British private property occurred well beyond the final moment of their

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rule and was framed in terms of enduring British colonialism under international treaty rights based on rule of law defences against forced property alienation. Both examples showed British domestic property law was both a locally defensive welfarist pivot and strangely supra-national in outlook. Chapter 5 showed how near-xenophobic British dictates on who could purchase property benefited local Chinese in Hong Kong to the disadvantage of others, and were instances of dialectical inhibitors at work. Examples were given of how the colonial government of Hong Kong controlled KMT investment to minimize its political influence. It also featured research on how common law property values became civic values of constructivism perfected in Hong Kong but replicable across the Eastern Empire to enable co-opted Chinese with informal land interests to become formally acceptable, if not formally British. This would become a sensitive issue in the lead-up to the handover of the colony to Chinese authorities in 1997.

Implications Marx maintained the parties to any mode of production — just as their ideas — were “transitory products”.1 In this light, the stalemate of economic modes jostling side-by-side in colonial-era China, and the late twentieth-century triumph of capitalism in the country, require no small amount of explanation. Transition did not occur when or how it might have been expected in 1924, through lasting adoption of Sun Yat-sen’s Leftist manifesto, or in 1989, through the Tiananmen Incident. These anomalies open a way for a few contemporary points as reflections on

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how the history I have highlighted can help us to reveal the historical terrain of modern China in a way that brings it within rational explanation. Before I do so, I want to reflect a little on dialectical materialism and how its abandonment has produced much disappointing history in recent years.

Writing History to a Theory Not every historian feels drawn to the science of history but more should. In a book on settler colonialism in the big white colonies, Ford commented that “as a historian I instinctively reject drawing the colourful threads of this volume into some call to action…”.2 As a political philosopher interested in history, this seems to me a very puzzling thing for Ford, or any historian, to say. Unless, of course, a historian’s soul belongs to positivism — a camp that has long propagated a pious neutrality as if it is not, itself, an ideological position. Ambitious works are better off not written; higher vocabularies cannot overcome comparative divergence, and on and on they go, unimaginatively totting up genocidal facts and figures in pursuit, not of a schema of history, but often a nauseating careerism, the hallmark of which is having nothing to say. Is today’s historian to play no part in revealing the destination implied by the act of starting a materialist narrative? The problem I have with Ford’s work, in particular, is that I am at a loss to see its larger purpose; I do not sense a theory large or small at its cautious heart. I do not think I am alone in preferring the gaffer-tape smell of an over-reaching account to one bereft of ambition or slight in motive. In chapter 4, I argued that the British Colonial Office

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used property law as a proxy for colonial control even after they left a colony of the Far East in 1930 and continued to do so until Japanese nationalism, in all its clipped unconcern for European sensitivities, finally ended its in absentia autonomy gambit. Others can judge whether the argument is too ambitious or under-evidenced. The closed phrases of Ford and Stoler attest what most historians are quite unprepared to do: submit something for judgment. Chibber’s great service has been to provoke a debate of great vehemence and consternation albeit it has not greatly transcended the Marxist cubbyhouse. It is in vigorous, open exchanges that we learn best about history. Except for a belated, edited tome, Stoler has chosen not to reflect much on the present in her work either. Despite her belief in responding to “the toxic erosions and violent accruals of colonial aftermaths”,3 her central argument in Ruins to Ruination used emotive condescension to expose and revel in confusions, disjunctions, ambiguities, and anxieties among colonial ruling elites. Rather than the pulse of history, Stoler and Ford have sought inevitable cultural misunderstandings and policy atonality as proof of colonial illegitimacy, and left the argument at that. To borrow Mcclintock’s phrase, such contributions leave their authors “ambiguously complicit”4 in the history they seek to decry by half measures. When we are cornered by students seeking an objectively postcolonial knowledge, they are as little satisfied by the bright blue day of the eternal Dutch palm oil estate as they are by the allegedly immanent Marxist worldwide revolution or a historian’s recalcitrant refusal to draw out contemporary implications of their work.

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Ford was not unusual in abdicating from narratives given grammar and purpose by a reading of dialectical, or any other, historical undercurrents. What was exceptional about her work was that it has stumbled badly at a fairly low threshold set by Conor and Lydon. Namely, the very least that can be expected of colonial historical studies is an estimation of the “relational and political impacts” of the work and its contribution to “crosscultural meaning-making”.5 My development of a research practice to uncover hybridized legal and institutional forms as evidence of a policy of dialectical inhibition meets that mark. In further service of these goals, I would now like to say a few things about how the history I have related in these pages might speak to present conditions. I want to make a few quite unrestrained assertions about the historical progress and future of China. I also want to check the pulse of dialectical materialism, to see if it’s too late to order a defibrillator. Throughout this book I presented the concept of autonomy as a bundle of purposeful property policies interrupting colonial dialectical materialism to the ultimate benefit of colonial administrations. This is to be distinguished from Althusser, whose view of autonomy was primarily in its role of obscuring true social relations of production through the alchemy of unlikely working-class wins never disturbing the foundations of capitalism or its reproduction in the final instance. However pessimistic each view is about political revolution changing societies for the better, each concedes that if a new mode of production displaces capitalism, its inner and outer workings will have to be much more impressive than the administrative socialism that characterized the cold war. I argue

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that the modernity of the mid-twentieth century will come to be represented by the concessions made by authoritarianism in recognition of individual rights in China. China’s embrace of industrial, external market driven capitalism since 1979 is doubted by Western critics as now too entrenched to be a necessary reform for a transitory proletarian dictatorship. Yet nor is it quite European enough to constitute an advanced stage of capitalism. Such critics of China, and there are many, are reluctant to concede that, as a matter of principle, the country’s lack of political transition in 1989 is no more or less deplorable than the stasis observable in in any number of other “postcolonial” nations. The difference is that China has made an inventory of its historical friends and enemies and is, at last, in a position to do something about it. This is causing discomfort in the West where globalization is questioned as never before. This is mainly because the West does not run global capitalism unchallenged anymore. Industrialization gives rise to political plurality, or it does not. China’s late twentieth century experience showed there was no dialectical rule that one leads to the other, or that a rising middle class has any political significance at all, except for being a well-educated counter-revolutionary group with too much to lose from rapid political change. Colonial governments in the Far East recognized dialectical processes and attempted to diffuse them with mediative measures. So did the Kuomintang Nationalist Chinese government that held sway in the north east in the late 1920s. The Communist Chinese government, has over the last sixty

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or so years, demonstrated itself to be a master exponent of dialectic-busting and self-renewal. This raises a tantalizing, if at this point, tangential prospect: current CCP prescriptions for China embody a Chinese colonial method which fuses extraterritorial administrative techniques of European colonialism with a tribute-based system that stretches back for millennia. China’s policy footprint in the East Asian region, and the dialectical process producing it, will be the question of twentyfirst century Asia. Contemporary Hong Kong, like other East Asian jurisdictions with a colonial or semi-colonial past, acts as if its European lessons in corporately-led democracy and pusillanimous “policing” of dissent will pass Beijing’s imperial exam. The current system of China being surrounded by fractious neighbours fortified by Western networks of political and economic nostalgia will move towards a client state tribute system with China at the centre. The colonial occupation experiences of Hong Kong, Japan, Singapore, and South Korea will not prepare these jurisdictions well for such a shift in the East Asian narrative because their experiences of foreign modernity were at the hands of colonial powers who were steadily pluralizing political power back home. China does not play by such evolutionary rules. The reasons for the new tribute system will be economic but characterized by China’s enemies as political. Powered by its transition from a mass production manufacturing economy to one based on provision of personal services to the middle class, China will be the master of the region and all other states will serve it. Once the old tribute system is resurrected, China’s

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military ability will be less important than its near-limitless capacity to unleash economic consequences on insufficiently filial client states. This will allow it to harmonize the dialectical methods of spoke states with the hub, achieving a stasis far more enduring than anything achieved by the British colonial governments. Hegel’s vacillation on whether the end of history could occur will be answered, not by placing Western liberal democracy on a plinth for eternal admiration, but by recognition of China’s syndicated administrative authoritarianism. In the years between 1912 and 1919 there was vigorous debate among Sun Yat-sen’s followers as to whether the new republic should be an American presidency, a Japanese constitutional monarchy, or a French parliamentary system. Many of Sun’s contemporaries thought that had China adopted a Japanese system many of the problems facing China would have been avoided because the real power would reside with the ministers of the diet. Mao could never go along with this. After the restoration of the monarchy in the wake of Yuan Shikai’s demise, he realized it was not a question of who ruled as president or emperor, but the system itself. The choice at the end of the Great War between political feudalism or a republic, evolved in the 1920s into which kind of anti-foreign republic, because the West failed to support China’s request for the Japanese to leave Shandong despite the province supplying 140,000 men for the Allied war effort. After the ascension of the CCP to power, China was alone in the world throughout the 1950s in holding fast to a thesis that, “peaceful transition to socialism via the parliamentary road was a gross error of principle”.6 The contemporary

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leadership of the CCP no longer believes, as Fitzgerald put it, “that capitalism is approaching its final agony”.7 Thus, China offers a curious beacon to the world showing, if nothing else, doctrinally pragmatic socialist authoritarianism can produce accelerated industrialization and a middle class as well as any democracy. Among the intellectual elites of the West, there is an unmistakable dissonance about China’s rise because it confounded expected rhythms of economic development still enjoying a strange half-life in Western bourgeois circles. In them, the shift from industrial wage-based division of labour to a petit bourgeois one was an obvious, if wholly unacknowledged, Western expression of dialectical progress. Some in the West are disturbed deeply by a thought that non-Western countries can, without the badge of democracy, engineer a large social class with meaningful work who get paid properly for it. A widely-held Western reading of China’s progress is one of an economic story decoupled from modernist political development presumably because its decolonization was so abrupt. Yet nevertheless the CCP eventually produced a middle class via industrialization and occupational specialization, thought to be the hallmarks of the Western democratic model. Chinese progress can thus only be regarded in the West as anomalous as it has not been conformable with the pace or patterns of development established in late eighteenth-century England, or the United States in the 1850s. China’s inglorious wastage of so much human life in 1959–61 and the widespread homicidal persecution of ordinary people from 1966–76 strained the popular currency of communism to an extent that industrialization in the space of thirty years was vital to save the

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country’s ruling elite. The CCP will continue to develop from a subaltern political party into a broadly bourgeois-capitalist management team with censorious characteristics. But at a molecular level, it is encoded with a suspicion of unorthodox ideas. It has changed the economic system without attending to pluralization of its politics. An authoritarian survival cannot change ideological feathers quickly without exposing itself to charges of contradiction and political revolt. China’s contribution to modernity might well be to show how an essentially feudal political structure can change itself gradually and imperceptibly to plural republicanism, with a few of the old princes cluttering up the hallways, and how this is the same process as authoritarian British colonial governments handing over to bourgeois “native elites” but hanging on to a few of the rubber plantations. There being, in both examples, a flooding and ebbing of an eternal colonial song. If self-determined populations rise and invading populations fade, and then the reverse occurs, the idea of modernity is little more than a highly judicious selection of political values that are useful to a group desiring to ascend. Modernity may be called architecture, or a Cantonese opera, or a marvel of civil engineering, but when a group is on the way down, these are merely artefacts — destroyed, forgotten, “outmoded” — due to another group’s ascent. The products and symbols of China’s modernity are currently Western only in the sense that the skyscrapers and mass production are all that Western eyes see. The real space to watch for the modernity of China will be the accommodation of individual legal and political rights within an unapologetically monolithic state structure. This is not to say

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we should expect the rule of law or an independent judiciary any time soon but rather incremental reform conceding real and actionable bourgeois constitutional rights, albeit expressed as individual economic ones. Eliminating corruption and delivery of a more level commercial playing field thus will be China’s markers of modernity.

Last Thoughts Althusser was fond of making distinctions between “speculative philosophy and ‘concrete’ philosophy [or] the speculative dialectic and the real dialectic”.8 The thriving half-life of colonialism in the modern world prevents many of us from believing in the revolutionary praxis of the “real” dialectic. My reading of relative autonomy, for instance, centres on colonial political action intended to defuse dialectical conflict and minimize decolonizing political progress. It describes the subversion of revolutionary praxis. Works of the likes of Stoler and Ford constitute historicism of the type Althusser justifiably decried: “A theoretically autonomous philosophy (autonomous in its object, theory and method) … which tips Marxism back into metaphysics, into the restoration of the Philosophy of Nature”.9 The vision of a detached historian calmly sifting through evidence for propositions of no schematic consequence now constitutes a widely accepted occupational category labelled “professional historian”. It is a self-sanctified, isolationist, hermetically-sealed life characterized by bouts of careerist viciousness and tactical solicitude signifying debate is not a dissemination but a narcissistic tool. What is remarkable

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about the controversy prompted by Chibber has been that a rigorous community of Marxist scholars has come out from the shadows and enriched each other’s understandings of history. Professional historians are nowhere to be found in this debate because participation would signify acceptance of dialectical materialism; or a need to counter it, again. All that exists now is the revitalized thesis of Marxism. We lack the antithesis to argue against. The subalterns won’t provide it. Do you have to bleed the blood of the downtrodden to find a methodology for history in Althusser? This was answered by three ideas that milled around his writings: his adoration for Vladimir Lenin, profound distain for cultural and literary theorists, and belief that middle class university educated people were hopelessly trapped by the thoughts and positions endemic to their station.10 Each idea, in its own way, says to many people who might find sympathy for his writings: go home, you are a fake and you always will be. Unsurprisingly, there was a stampede of the reciprocally dismissive, as well as — no doubt — a few self-identifiers, too. Yet Althusser had something special in store for the little huddle of us still standing on a molten MTR platform in Tsim Sha Tsui and cursing the fortune of those who had scurried onto the last, air conditioned carriage back to the glittering metropolis. He gave us a way to read colonial history and a measure of permission to do so. I will stay Kowloon-side, at least for now.

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Endnotes Preface 1. Kevin J. Anderson, Marx at the Margins: On Nationalism, Ethnicity and Non-Western Societies (Chicago: University of Chicago Press, 2016) i. 2. Vivek Chibber, Postcolonial Theory and the Specter of Capital (London: Verso, 2013); Robert Young, Postcolonialism: An Historical Introduction (Malden: Blackwell, 2009); and Neil Lazarus, Marxism, Modernity, and Postcolonial Studies (Cambridge: Cambridge University Press, 2002). 3. Joshua Goldstein, “Introduction” in Madelaine Yue Dong and Joshua Goldstein (eds) Everyday Modernity in China (Seattle: University of Washington, 2006) 3. 4. Althusser, Lenin and Philosophy and Other Essays (New York: Monthly Review Press, 2001), 63. 5. Jacques Freymond, Lénine et L’Impérialisme (Lausleninanne: Librairie Payot, 1951) 53. 6. Ibid., 64. 7. R.P.T Davenport-Hines and Geoffrey Jones, British Business in Asia since 1860 (New York: Cambridge University Press, 1989) 7. 8. Ibid., 8. 9. Jacob Pandian, Caste, Nationalism and Ethnicity: An Interpretation of Tamil Cultural History and Social Order (London: Sangham, 1987) 63. 10. Chibber, Ibid, 12. 11. Ibid, 13. 12. Marie Claire Bergere, Sun Yat-sen (Standord: Stanford University Press) 328. 13. Ibid. 14. Louis Althusser and Etienne Balibar, Reading Capital (London: Verso, 2009) 255. 15. Chibber, Postcolonial Theory, 10. 16. Wang Hua, “Discursive Community and the Genealogy of Scientific Categories” in Madelaine Yue Dong and Joshua Goldstein (eds) Everyday Modernity in China (Seattle: University of Washington, 2006) 96–97. 17. Louis Althusser and Etienne Balibar, Reading Capital (London: New Left Books, 1970) 301.

Chapter 1 1. Althusser, Reading Capital, 225–226. 2. Robert Young, White Mythologies: Writing History and the West (London: Routledge, 2004) 92.

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Reading Colonies — Property and Control of the British Far East 3. Ibid., 21. 4. Crystal Bartolovich, “Introduction” in Crystal Bartolovich and Neil Lazarus (eds), Marxism, Modernity and Postmodern Colonial Studies (Cambridge: Cambridge University Press, 2002) 35. 5. Vivek Chibber, Postcolonial Theory and the Specter of Capital (London: Verso, 2013) 23. 6. Giovanni Arrighi, “The Rise of East Asia and the Withering Away of the Interstate System” in Crystal Bartolovich and Neil Lazarus (eds), Marxism, Modernity and Postmodern Colonial Studies (Cambridge: Cambridge University Press, 2002) 35. 7. Fred Chiu, “Politics and the Body Social” in Tani E. Barlow (ed) Formations of Colonial Modernity (London: Duke University Press, 1997) 304. 8. Ibid., 304–305. 9. Mao, Quotations From Chairman Mao Tse-Tung (London: Corgi, 1967) 40. 10. Ibid., vol. 1, 548. 11. Louis Althusser and Étienne Balibar, Reading Capital (London: Verso, 2009) 157. 12. Louis Althusser, The Future Lasts A Long Time (London: Chatto & Windus, 1993) 41. 13. Ibid., 42. 14. Daniel Zisenwine, Emergence of Nationalist Politics in Morocco: The Rise of the Independence Party and the Struggle Against Colonialism after World War II (London: Taurus, 2010) 202; C.R. Pennell, Morocco Since 1830: A History (New York: NYU Press, 2000) 279. 15. Debra Kelly, Autobiography and Independence: Selfhood and Creativity in North African Postcolonial Writing in French (Liverpool: Liverpool University Press, 2005) 43. 16. Althusser, The Future Lasts A Long Time, 66. 17. Ibid., 155. 18. Young, White Mythologies, 23. 19. Althusser, Reading Capital, 34. 20. Mao, Quotations From Chairman Mao Tse-Tung, 6. 21. Ibid., 5. 22. Eric Hobsbawm, Empire and Industry (New York: Penguin, 1999) xii. 23. Tadeusz Kowalik, Rosa Luxemburg: Theory of Accumulation and Imperialism (London: Palgrave, 2014) 20. 24. Hu Sheng, Imperialism and Chinese Politics (Peking: Foreign Languages Press, 1955) 111. 25. Ibid. 26. Mark Elvin, “The High Level Equilibrium Trap: The Causes and Decline of Invention in the Traditional Chinese Textile Industries” in WE Willmott, Economic Organisation in Chinese Society (Stanford: Stanford University Press, 1972) 30–35.

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Endnotes 27. Howard T. Fry, Alexander Dalrymple and the Expansion of British Trade (London: Routledge, 1970) 148. 28. Marx, “Chinese Affairs” in Die Presse (7 July 1862) 7. 29. Althusser, Reading Capital, 55. 30. David Pederson, “Minding Appearances: the Labour of Representation in Vivek Chibber’s Postcolonial Theory and the Specter of Capital” Journal of World Systems Research 20(2) (2014): 308. 31. Anton Allahar, “Marxist or Not? Oliver Cromwell Cox on Capitalism and Class Versus Race” Canadian Journal of Latin American and Caribbean Studies 39(3) 440. 32. Jean-Francois Lyotard, The Differend: Phrases in Dispute (Minneapolis: University of Minneapolis, 1988) 179–180. 33. Chibber, Postcolonial Theory, 4. 34. Althusser, The Future Lasts a Long Time, 196. 35. Ibid. 36. Ibid. 37. Althusser, Reading Capital, 231. 38. Althusser, Reading Capital, 157. 39. Althusser, Reading Capital, 199. 40. Zine Magubane, Bringing the Empire Home: Race, Class, and Gender in Britain and Colonial South Africa (Chicago: University of Chicago Publishing, 2004) 102. 41. Althusser, Reading Capital, 184–185. 42. Ibid., 85. 43. Perry Anderson, Lineages of the Absolutist State (London: NLB, 1974), 404. 44. Marian Sawyer, Marxism and the Question of the Asiatic Mode of Production (The Hague: Martinus Nijhoff, 1977) 219. 45. Sydney Olivier, White Capital and Coloured Labour (Hogarth: New York Press, 1906) 119. 46. Ibid., 9. 47. Frantz Fanon, The Wretched of the Earth (London: Penguin, 1969) 31. 48. Louis Althusser, Lenin, Philosophy and Other Essays (Monthly Review Press: New York, 2001) 27. 49. Bernard Porter, Critics of Empire: British Radicals and the Imperial Challenge (London: Macmillan, 1968) 41. 50. M. Fu, “A Chinese Tract of the Mid-Nineteenth Century” in Eugene Powers Boardman (ed) Christian Influence on the Ideology of the Taiping Rebellion, 1851– 1864 (Madison: University of Wisconsin Press, 1952), 129. 51. Rosa Luxemburg, The Accumulation of Capital (New York: Routledge, 2003) 346. 52. Étienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London: Verso, 1991) 38.

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Reading Colonies — Property and Control of the British Far East 53. Anne Mcclintock, Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest (New York: Routledge, 1995) 219. 54. Althusser, Lenin and Philosophy and Other Essays, 219. 55. Vivek Chibber, Postcolonial Theory and the Specter of Capital (London: Verso, 2013) 4–28. 56. Marx, Capital, vol. 3, 392–3. 57. Ibid., 393. 58. Lenin, Imperialism: The Highest Stage of Capitalism (London: Penguin Books, 2010) 3. 59. J.A. Hobson, The Evolution of Modern Capitalism: A Study of Machine Production (London: Routledge, 2013) 175. 60. Jeremy Bentham, Emancipate Your Colonies: Shewing the Uselessness and Mischievousness of Distant Dependencies (London: Reynell, 1830) 7. 61. Howard Boorman, Richard Howard and Joseph Cheng, Biographical Dictionary of Republican China vol. 1 (Columbia: Columbia University Press, 1967) 311. 62. George Nellest, Men of Shanghai and Northern China: A Standard Biographical Reference Work (Shanghai: The Oriental Press, 1933) 129. 63. Ibid., 11. 64. Quoted in Rhoads Murphey, The Outsiders: The Western Experience in India and China (Ann Arbor: University of Michigan Press, 1977) 10. 65. Tucker, The Marxian Revolutionary Idea, 9. 66. Quoted in Althusser, Reading Capital, 163.

Chapter 2 1. Marc Ferro, Colonization: A Global History (London: Routledge, 1997) 350. 2. Julie Lee Wei, Ramon H. Myers, Donald G. Gillin (eds), Julie Lee Wei, E-su Zen, Linda Chao (trans), Prescriptions for Saving China: Selected Writings of Sun Yat-sen (Stanford: Hoover Institution Press, 1994) 166. 3. Marx, The Poverty of Philosophy (New York: Cosimo Classics, 2008) 119. 4. David Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge: Cambridge University Press, 2013) 533. 5. Samuel Soloman, “L’espacement de la Lecture: Althusser, Derrida, and the Theory of Reading” Decalages 4 (2012): 5. 6. Simon Clarke, One Dimensional Marxism: Althusser and the Politics of Culture (London: Schocken Books, 1980) 8. 7. Anne Boyer, “Kill the Philosopher in Your Head” http://thenewinquiry.com/essays/killthe-philosopher-in-your-head/ (Accessed 20 March 2014).

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Endnotes 8. Althusser, Reading Capital, 153. 9. Althusser, Lenin and Philosophy, 91. 10. Althusser, Reading Capital, 254. 11. Ibid., 29. 12. Althusser, Lenin and Philosophy, 47. 13. Marx and Engels, The German Ideology (New York: International Publishers, 1947) 22. 14. Baruch Spinoza, “Ethics” in Michael Morgan (ed) Spinoza: Complete Works (Indianapolis: Hacket Publishing, 2002) Pt 1 Prop 36 (Append). 15. Young, White Mythologies, 20. 16. Ibid. 17. Michael Sprinkler and E. Ann Kaplan, The Althusserian Legacy (London: Verso, 1993), 1. 18. Karl Klare, “The Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness” Minnesota Law Review 62 (1978): 265. 19. Duncan Kennedy, A Critique of Adjudication (Harvard: Harvard University Press, 1997). 20. Duncan Kennedy, “Toward an Historical Understanding”, 21. 21. Lewis Kornhauser, “A World Apart? An Essay on the Autonomy of the Law” Boston University Law Review 78 (1998): 771. 22. Milton J. Horwitz, The Transformation of American Law (1780–1860) (Cambridge: Cambridge University Press, 1977) 253. 23. Kornhauser, “A World Apart”, 771. 24. Robert Post, “Introduction: The Relatively Autonomous Discourse of Law,” in Robert Post (ed) Law and the Order of Culture (Los Angeles: University of California, 1990) viii. 25. Hugh Baxter, “Autopoiesis and the Autonomy of Law” Cardozo Law Review 19 (1998): 1989. 26. Post, “Relatively Autonomous Discourse”, viii. 27. Robert Young, Empire, Colony, Postcolony (Oxford, Wiley Blackwell, 2015) 83. 28. Georges Dupre and Pierre Phillipe Rey, “Reflections on the Relevance of a Theory of the History of Exchange” in David Seddon (ed) Relations of Production: Marxist Approaches to Economic Anthropology (New York: Frank Cass, 1978) 202. 29. Maurice Godolier, “The Concept of an Asiatic Mode of Production and Marxist Models of Social Evolution” in Ibid, 212. 30. Ann Laura Stoler and Frederick Cooper, “Between Metropole and Colony: Rethinking a Research Agenda” in Frederick Cooper and Ann Laura Stoler (eds), Tensions of Empire: Colonial Cultures in a Bourgeois World (Berkley: University of California Press, 1997) 10. 31. Althusser, Reading Capital, 247.

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Reading Colonies — Property and Control of the British Far East 32. Duncan Kennedy, “Toward a Historical Understanding of Judicial Consciousness: The Case of Classical Legal Thought in America 1850–1940” Research in Law and Sociology 3 (1980): 6. 33. Louis Althusser, Reading Capital, 111. 34. Jeffery Wasserstrom, Student Protests in Twentieth Century China: The View from Shanghai (Stanford: Stanford University Press, 1991), 122. 35. Robert C. Tucker, The Marxian Revolutionary Idea (London: Allen and Unwin, 1969), 16.

Chapter 3 1. Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America 1850–1940” Research in Law and Sociology 3 (1980): 6. 2. Louis Althusser, Lenin and Philosophy and Other Essays (New York: Monthly Review Press, 2001) 136. 3. Xu Xi and Mike Ingham, “Prose Excerpts: A Many Splendored Thing (1952),” in Mike Ingham (ed) City Voices: Hong Kong Writing in English 1945 to the Present (Hong Kong: Hong Kong University Press, 2003), 28–29. 4. Proclamation No 15 — Landlord and Tenant of 1945, Art. 4 (22 October 1945). 5. Ibid., Art. 5. 6. Philip Snow, The Fall of Hong Kong: Britain, China and the Japanese Occupation (New Haven: Yale University Press, 2004) 124. 7. E.G. Prior, “A Historical Review of Housing Conditions in Hong Kong” Journal of the Royal Asiatic Society 12 (1972): 108. 8. Ibid., n 13. 9. HKRS41-1-2981, “Tenants — Responsibilities of In Matters of Rent Control, Water and Public Health”. 10. Hong Kong Legislative Council, Minutes, 10 April 1947, 108; Landlord and Tenant Ordinance, s 3 (1947). 11. Roderick O’Brien, “Rent and Tenure Controls for Pre-war Buildings” Hong Kong Law Journal 7 (1977): 5. 12. Alan Birch, “The Control of Prices and Commodities in Hong Kong” Hong Kong Law Journal 4 (1974): 133. 13. HKRS 46-1-53, “Landlord & Tenant Ord., 1947 Rent Control Committee: the Macneil Report 1953”; HKRS 47-1-114, “Rent Increases (Domestic Premises) Control 20.08.1965-06.06.1968”; HKRS 156-6-31, “Rent Increases (Domestic Premises) Control Bill, 1970”; and HKRS 70-8-3894, “Rent and Rent Control 1980-1983”. 14. Adrian Bradbrook, “The Future of Domestic Rent Control” Hong Kong Law Journal 7 (1977): 323.

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Endnotes 15. [1946] HKDC 6, [17] (31 August 1946). 16. Re On Lok Co [1946] HKCFI 1 (14 January 1946), Ng Wan, the Proprietor of Sang Kee v So Yim [1948] HKCA 5 (19 February 1948) and Lee Gwok Ying v H Turner [1946] HKDC 5 (27 August 1946). 17. [1947] HKDC 6 (28 November 1947). 18. Alan Birch, “Control of Prices”, 109. 19. [1947] HKCA 10, [1] (13 November 1947). 20. [1946] HKDC 4 (15 March 1946). 21. [1946] HKDC 1 (28 January 1946). 22. [1946] HKCFI 1 (14 January 1946). 23. Proclamation No 15 — Landlord and Tenant of 1945, Art. 5A(1)(a)(i) (22 October 1945). 24. Ibid., Art. 5(a). 25. Re On Lok Co, [18]. 26. [1946] HKDC 1 (28 January 1946). 27. [1946] HKDC 1, [9]. 28. HKRS 134-34-60. 29. [1946] HKDC 4 (15 March 1946). 30. [1946] HKDC 4, [4]. 31. Louis Althusser, Lenin and Philosophy, 138. 32. [1946] HKDC 5 (27 August 1946). 33. Proclamation No 15 — Landlord and Tenant of 1945, Art. 5A(1)(a)(i) (22 October 1945). 34. [1947] HKDC 5, [27]. 35. [1947] HKDC 7 (15 January 1947). 36. [1947] HKDC 5 (23 October 1947). 37. E.C.S Wade and A.W. Bradley (7th ed), E.C.S. Wade and G. Godfrey Phillips, Constitutional Law (London: Longmans, 1965) 31. 38. Carol Jones, “Politics Postponed: Law as a Substitute for Politics in Hong Kong and China,” in Kanishka Jayasuriya (ed) Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (London: Routledge, 1999) 23. 39. John Mews, Mews Digest of English Case Law 1949 (London: Sweet and Maxwell, 1961), 277. 40. Proclamation No 15 — Landlord and Tenant of 1945, Art. 5(1)(d) (22 October 1945). 41. (1948) 49 NLR 461 (20 July 1948). 42. See Kulawanes v Jayaratne (1947) 48 NLR 347 (2 July 1947) per Dias J; Talagala v Gangodawila (1947) 48 NLR 472 (3 September 1947) per Dias J; and Ismail v Herft (1947) 50 NLR 112 (31 March 1947) per Windham J. 43. (1950) 52 NLR 91 (22 November 1950).

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Reading Colonies — Property and Control of the British Far East 44. (1950) 51 NLR 104 (22 June 1950). 45. (1950) 51 NLR 381 (3 May 1950). 46. (1950) 52 NLR 91, 93 (28 June 1950). 47. (1947) 50 NLR 211 (25 July 1947). 48. (1947) 50 NLR 211, 214–215. 49. CT Carr, “Burma” Journal of Comparative Legislation and International Law 30 (1948):118. 50. VV Kunhi Krishnan, Tenancy Legislation in Malabar, 1880–1970: An Historical Analysis (New Delhi: State Education Press, 1993) 110. 51. Ibid. 52. Ibid. 53. Loh Kah Seng, Squatters Into Citizens: The 1961 Bukit Ho Swee Fire and the Making of Modern Singapore (Singapore: NUS Publishing, 2013) 7–8. 54. Ibid., 20–21. 55. Kevin Tan, Marshall of Singapore: A Biography (Singapore: ISEAS Publishing, 2008) 20–21. 56. Ibid., 210. 57. Rent Control Act 1953, s. 2(b). 58. Carr, “Burma,”134. 59. Ibid. 60. Rent Restriction Ordinance 1942, s 7. 61. Civil Reference No. 2 of 1947 of the High Court, Rangoon. 62. Monthly Leases Termination Act No. XLIX 1946 , s 35. 63. Paul H. Kratoska, “Introduction” in Paul H. Kratoska (ed) South East Asia Colonial History: Peaceful Transitions to Independence (London: Routledge, 2001), 17. 64. WE Hall, International Law (Oxford: Oxford Clarendon Press, 1917), 518. 65. (1955) 1 BLR 54. 66. (1955) 1 BLR 54, 62. 67. Rent Act (Cap 597), s 22(bb)(i). 68. (1944) 46 NLR 133 (26 October 1944). 69. Rent Restriction Ordinance 1942, s 8. 70. (1946) 47 NLR 433 (16 October 1946). 71. (1950) 52 NLR 91 (22 November 1950). 72. Gerald Turkel, “Michel Foucault: Law, Power and Knowledge” Journal of Law and Society 17 (1990): 176. 73. Duncan Kennedy, A Critique of Adjudication (Harvard: Harvard University Press, 1997) 157–159. 74. Ibid., 120.

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Endnotes

Chapter 4 1. Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton University Press, 2009), 278. 2. Ford, Between Indigenous and Settler Governance, 4. 3. Althusser, Lenin and Philosophy and Other Essays (New York, Monthly Review Press, 2009), 29. 4. Stoler, Along the Archival Grain, 7. 5. Ibid.,114. 6. Ibid., 115. 7. Ibid., 250. 8. WA 229-1-158, Reginald Johnson to HMB the Commissioner (14 November 1911). 9. Ibid, HMB The Commissioner to Johnson (15 November 1911). 10. Ibid. 11. Ibid. 12. Ibid. 13. Ibid. 14. Ibid. 15. Engels, Marx and Engels on Law (London: Academic Press, 1979), 122. 16. Hong Kong, Parliamentary Debates, Legislative Council, 28 August 1919 (28 August 1919) 64. 17. Ibid., 63. 18. Ibid. 19. HKRS 156-1-787 (15 March 1947). 20. HKRS 163-1-1245 (25 April 1947). 21. Ibid. 22. CVOC Leaflet, Issue 1, 1936, 42. 23. Ibid., 29. 24. HKRS 156-1-1654 (2 April 1948). 25. Ibid. 26. HKRS 156-1-1662 (25 March 1948). 27. HKRS 156-1-1451; HKRS 156-1-1274 and HKRS 156-1-12923. 28. HKRS 156-1-41 Yun to Follows (12 January 1946). 29. Ibid. 30. HKRS 156-1-41, Follows to Yun (11 February 1946). 31. HKRS 156-1-41, Yun to Follows (27 February 1946). 32. Hong Kong, Parliamentary Debates, Legislative Council, Minutes, 23 March 1922, 25 (Colonial Secretary Mr Claud Severn).

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Reading Colonies — Property and Control of the British Far East 33. Ibid., 27 (H.E. The Governor Sir Reginald Stubbs). 34. Ibid., 26 (Senior Unofficial Council Member, Mr Lau Chu Pak). 35. Ibid. 36. Ibid. 37. Ibid., 27. 38. Ibid. 39. Convention Between His Majesty and the President of the National Government of the Republic of China (signed and coming into force 18 April 1930) Art. 12. 40. Ibid., Art. 17. 41. Ibid., Art. 11. 42. WA 229-1-1096, “Enclosure 3 (British Consulate WHW)” (1 October 1940). 43. Ibid. 44. Ibid., British Consulate WHW to HIJM Consul, Japanese Consulate WHW (17 December 1940). 45. Ibid. 46. Ibid. 47. WA 229-001-180-1009, “Weihaiwei Government Gazette no. 29” (21 September 1918); Land and House Tax Regulations 1918 (WHW), Reg 3. 48. Ibid., Reg 10. 49. Ibid., Reg 12(4). 50. WA 229-1-1357, “Re: White Cottage” (10 February 1938). 51. WA 229-1-9356 J.H. Richards to Revenue Office, Weihaiwei (15 July 1929). 52. Ibid. 53. Ibid. 54. WA 229-1-1357 HBM Consul Weihai to JH Richards (4 March 1932). 55. Rendition Agreement, Art 13. 56. WA 229-1-1357 HBM Consul Weihai to JH Richards (4 March 1932). 57. WA 229-1-9356 HBM Consulate, Weihai to JH Richards (25 February 1932). 58. WA 229-1-1357, Acting Consul, HBM Consulate, Weihai to JH Richards (28 March 1931). 59. WA 229-1-1358, J Weston, Laver and Clark to SL Burdett, HBM Consulate Chefoo (30 September 1941). 60. WA 229-1-1358, J Weston, Laver and Clark to SL Burdett, HBM Consulate Chefoo (8 October 1941). 61. WA 229-1-1358, SC Burdett to J Weston (11 October 1941). 62. WA 229-1-1358, “Land Transfer and Proposed Increases in Land Tax at Weihaiwei” HBM Consulate Chefoo to Sir Archibald Cox Kerr HM Ambassador, Shanghai (4 November 1941).

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Endnotes 63. WA 229-1-1358, HMB Consulate Chefoo to J Weston (4 November 1941). 64. HKRS 156-1-802, “Re Settlement of Outstanding Claims Against the Chinese Nationalist Government” (25 November 1949). 65. Ibid. 66. Ibid. 67. HKMS 184-1-11. 68. HKRS 80-1-2344.

Chapter 5 1. Lauren Benton, “Law and World History” in Kenneth R. Curtis and Jerry H. Bentley (eds) Architects of World History: Researching the Global Past (Chichester: Wiley, 2014) 148. 2. Louis Althusser and Étienne Balibar, Reading Capital (London: Verso, 2009)157. 3. Margaret Macmillan, The Uses and Abuses of History (London: Profile Books, 2008) 38. 4. Jan Morris, Farewell the Trumpets: An Imperial Retreat (London: Faber, 1998) 558. 5. Frantz Fanon, The Wretched of the Earth, 29. 6. Ibid. 7. Louis Althusser, On the Materialistic Dialectic: On the Unevenness of Origins (Paris: La Pense, 1963) 5. 8. Ibid, 27. 9. HKRS 58-1-73(63), Correspondence: Philip Jacks to Colonial Secretary (30/7/24). 10. Ibid. 11. Ibid. 12. HKRS 58-1-125(44), Philip Jacks to Colonial Secretary (2/8/24). 13. HKRS 58-1-178(20), Clerk of Councils DW Tratman to Hastings and Co (7/2/25) 14. HKRS 58-1-140(22), Philip Jacks to Colonial Secretary (3/2/27) 15. HKRS58/1/172(22), Philip Jacks to Chairman, Kwangsi Bank (24/5/25) 16. Hongkong Land Commission, Report on the History of the Sale, Tenure, and Occupation of the Crown Lands of the Colony (Hong Kong: Noronha, 1887), xxx. 17. Ibid. 18. Hong Kong, Parliamentary Debates, Legislative Council, Minutes, 14 June 1923, 50 (Colonial Secretary Mr AGM Fletcher). 19. Ibid. 20. Ibid. 21. HKRS 116-1-81.

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Reading Colonies — Property and Control of the British Far East 22. Ibid. 23. Ibid, “Land Court Judgement (sic) Land Court Case No. 5” (21 December 1960). 24. Ibid. 25. HKRS 116-1-78. 26. Ibid., “Land Court, Southern District, Action No. 2 in 1957”.

Chapter 6 1. Karl Marx, The Poverty of Philosopy (New York: Cosimo Classics, 2008) 31. 2. Lisa Ford,“Introduction” in Lisa Ford and Tim Rowse (eds) Between Indigenous and Settler Governance (New York: Routledge, 2013) 10. 3. Ann Laura Stoler, “Introduction: The Rot Remains From Ruins to Ruination” in Ann Laura Stoler (ed) Imperial Debris: On Ruins and Ruination (London: Drake University Press, 2013) 2. 4. Mcclintock, Imperial Leather, 10. 5. Liz Coner and Jane Lydon, “Double Take: Reappraising the Colonial Archive” Journal of Australian Studies 35 (2011): 143. 6. Editorial Department of Renmin Ribao (People’s Daily) and Hongqi (Red Flag), “The Origin and Development of the Differences Between the Leadership of the C.P.S.U. and Ourselves” (Peking: Foreign Language Press, 1963) 33. 7. C.P. Fitzgerald, The Birth of Communist China (London: Penguin, 1964) 224. 8. Louis Althusser, Reading Capital, 153. 9. Ibid.,152. 10. Loius Althusser, Lenin and Philosophy and Other Essays (New York: Monthly Review Press, 2001) 2–18.

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References Books Louis Althusser, The Future Lasts A Long Time (London: Chatto & Windus, 1993). Louis Althusser, Lenin, Philosophy and Other Essays (Monthly Review Press: New York, 2001). Louis Althusser and Étienne Balibar, Reading Capital (London: Verso, 2009). Perry Anderson, Lineages of the Absolutist State (London: NLB, 1974). Simon Clarke, One Dimensional Marxism: Althusser and the Politics of Culture (London: Schocken Books, 1980). Étienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London: Verso, 1991). Anthony Clayton, Three Marshals of France: Leadership After Trauma (London: Brassey’s, 1992). R.P.T Davenport-Hines and Geoffrey Jones, British Business in Asia since 1860 (New York: Cambridge University Press, 1989). Frantz Fanon, The Wretched of the Earth (London: Penguin, 1969). Marc Ferro, Colonization: A Global History (London: Routledge, 1997). C.P. Fitzgerald, The Birth of Communist China (London: Penguin, 1964). Jacques Freymond, Lénine et L’Impérialisme (Lausleninanne: Librairie Payot, 1951). Howard T. Fry, Alexander Dalrymple and the Expansion of British Trade (London: Routledge, 1970). William Edward Hall, International Law (Oxford: Oxford Clarendon Press, 1917). Eric Hobsbawm, Empire and Industry (New York: Penguin, 1999). J.A. Hobson, The Evolution of Modern Capitalism: A Study of Machine Production (London: Routledge, 2013). Milton J. Horwitz, The Transformation of American Law (1780–1860) (Cambridge: Cambridge University Press, 1977). Hu Sheng, Imperialism and Chinese Politics (Peking: Foreign Languages Press, 1955). Debra Kelly, Autobiography and Independence: Selfhood and Creativity in North African Postcolonial Writing in French (Liverpool: Liverpool University Press, 2005). Duncan Kennedy, A Critique of Adjudication (Harvard: Harvard University Press, 1997). Tadeusz Kowalik, Rosa Luxemburg: Theory of Accumulation and Imperialism (London: Palgrave, 2014). VV Kunhi Krishnan, Tenancy Legislation in Malabar, 1880–1970: An Historical Analysis (New Delhi: State Education Press, 1993). Lenin, Imperialism: The Highest Stage of Capitalism (London: Penguin Books, 2010).

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Reading Colonies — Property and Control of the British Far East Loh Kah Seng, Squatters Into Citizens: The 1961 Bukit Ho Swee Fire and the Making of Modern Singapore (Singapore: NUS Publishing, 2013). Rosa Luxemburg, The Accumulation of Capital (New York: Routledge, 2003). Jean-Francois Lyotard, The Differend: Phrases in Dispute (Minneapolis: University of Minneapolis, 1988). Margaret Macmillan, The Uses and Abuses of History (London: Profile Books, 2008). Anne Mcclintock, Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest (New York: Routledge, 1995). Zine Magubane, Bringing the Empire Home: Race, Class, and Gender in Britain and Colonial South Africa (Chicago: University of Chicago Publishing, 2004). Marx, The Poverty of Philosophy (New York: Cosimo Classics, 2008). Marx and Engels, The German Ideology (New York: International Publishers, 1947). Mao, Quotations From Chairman Mao Tse-Tung (London: Corgi, 1967). Jan Morris, Farewell the Trumpets: An Imperial Retreat (London: Faber, 1998). Rhoads Murphey, The Outsiders: The Western Experience in India and China (Ann Arbor: University of Michigan Press, 1977). George Nellest, Men of Shanghai and Northern China: A Standard Biographical Reference Work (Shanghai: The Oriental Press, 1933). Sydney Olivier, White Capital and Coloured Labour (Hogarth: New York Press, 1906). Jacob Pandian, Caste, Nationalism and Ethnicity: An Interpretation of Tamil Cultural History and Social Order (London: Sangham, 1987). C.R. Pennell, Morocco Since 1830: A History (New York: NYU Press, 2000). Bernard Porter, Critics of Empire: British Radicals and the Imperial Challenge (London: Macmillan, 1968). David Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge: Cambridge University Press, 2013). Marian Sawyer, Marxism and the Question of the Asiatic Mode of Production (The Hague: Martinus Nijhoff, 1977). Johnathan Schneer, London 1900: The Imperial Metropolis (New Haven: Yale University Press, 1999). Philip Snow, The Fall of Hong Kong: Britain, China and the Japanese Occupation (New Haven: Yale University Press, 2004). Michael Sprinkler and E. Ann Kaplan, The Althusserian Legacy (London: Verso, 1993). Robert Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill: University of North Carolina Press, 1991). Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton University Press, 2009). Tai Hung-chao, Land Reform and Politics: A Comparative Analysis (Los Angeles: University of California Press, 1974).

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References Kevin Tan, Marshall of Singapore: A Biography (Singapore: ISEAS Publishing, 2008). Robert C. Tucker, The Marxian Revolutionary Idea (London: George Allen and Unwin London, 1969). E.C.S. Wade and A.W. Bradley (7th ed), E.C.S Wade and G. Godfrey Phillips, Constitutional Law (London: Longmans, 1965). Jeffery N. Wasserstrom, Student Protests in Twentieth Century China: The View from Shanghai (Stanford: Stanford University Press, 1991). Daniel Zisenwine, Emergence of Nationalist Politics in Morocco: The Rise of the Independence Party and the Struggle Against Colonialism after World War II (London: Taurus, 2010).

Edited Collections Julie Lee Wei, Ramon H. Myers, and Donald G. Gillin (eds), Julie Lee Wei, E-su Zen, Linda Chao (trans), Prescriptions for Saving China: Selected Writings of Sun Yat-sen (Stanford: Hoover Institution Press, 1994). Karl, Marx and Friedrich Engels in Maureen Cain, Alan Hunt (eds) Marx and Engels on Law (London: Academic Press, 1979). John Mews (ed), Mews Digest of English Case Law 1949 (London: Sweet and Maxwell, 1961). G.E. Morrison in Lo Hui-Min (ed), The Correspondence of G.E. Morrison vol. 1 (Cambridge: Cambridge University Press, 1978)139-140. Baruch Spinoza, “Ethics” in Spinoza: Complete Works edited by Michael Morgan (Indianapolis: Hacket Publishing, 2002).

Book Chapters Lauren Benton, “Law and World History” in Kenneth R. Curtis and Jerry H. Bentley (eds) Architects of World History: Researching the Global Past (Chichester: Wiley, 2014). Fred Chiu, “Politics and the Body Social” in Tani E. Barlow (ed) Formations of Colonial Modernity (London: Duke University Press, 1997). Lisa Ford, “Introduction” in Lisa Ford and Tim Rowse (eds) Between Indigenous and Settler Governance (New York: Routledge, 2013). M. Fu, “A Chinese Tract of the Mid-Nineteenth Century” in Eugene Powers Boardman (ed) Christian Influence on the Ideology of the Taiping Rebellion, 1851–1864 (Madison: University of Wisconsin Press, 1952). Carol Jones, “Politics Postponed: Law as a Substitute for Politics in Hong Kong and China” in Kanishka Jayasuriya (ed) Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (London: Routledge, 1999). Paul H. Kratoska, “Introduction” in Paul H. Kratoska (ed) South East Asia Colonial History: Peaceful Transitions to Independence (London: Routledge, 2001).

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Reading Colonies — Property and Control of the British Far East George H. Nadel and Perry Curtis, “Introduction” in George H. Nadel and Perry Curtis (eds) Imperialism and Colonialism (Toronto: Macmillan, 1964). Robert Post, “Introduction: The Relatively Autonomous Discourse of Law” in Robert Post (ed) Law and the Order of Culture (Los Angeles: University of California, 1990). Ann Laura Stoler, “Introduction: The Rot Remains From Ruins to Ruination” in Ann Laura Stoler (ed) Imperial Debris: On Ruins and Ruination (London: Drake University Press, 2013). Xu Xi and Mike Ingham, “Prose Excerpts: A Many Splendored Thing (1952)” in Mike Ingham (ed) City Voices: Hong Kong Writing in English 1945 to the Present (Hong Kong: Hong Kong University Press, 2003).

Articles Hugh Baxter, “Autopoiesis and the Autonomy of Law” Cardozo Law Review 19 (1998). Alan Birch, “The Control of Prices and Commodities in Hong Kong” Hong Kong Law Journal 4 (1974). Adrian Bradbrook, “The Future of Domestic Rent Control” Hong Kong Law Journal 7 (1977). CT Carr, “Burma” Journal of Comparative Legislation and International Law 30 (1948). Liz Coner and Jane Lydon, “Double Take: Reappraising the Colonial Archive” Journal of Australian Studies 35 (2011). E. Valentine Daniel, “Ann Laura Stoler Interviewed by E.Valentine Daniel” Public Culture 24 (2012). Nick Efthymiou, “The First World War and Constitutional Law for the Netherlands East Indies” Erasmus Law Review 7 (2014). Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America 1850–1940” Research in Law and Sociology 3 (1980). Karl Klare, “The Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness” Minnesota Law Review 62 (1978). Lewis Kornhauser, “A World Apart? An Essay on the Autonomy of the Law” Boston University Law Review 78 (1998). Camille Nakhid, “Intersectionality Revisited: Moving Beyond the Contours of Race, Class Gender” New Zealand Sociology 30 (2015). Roderick O’Brien, “Rent and Tenure Controls for Pre-war Buildings” Hong Kong Law Journal 7 (1977). E.G. Prior, “A Historical Review of Housing Conditions in Hong Kong” Journal of the Royal Asiatic Society 12 (1972). Louise Racine, “The Impact of Race, Gender and Class in Postcolonial Feminist Fieldwork: A Retrospective Critique of Methodological Dilemmas” Aporia 3 (2011).

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References Samuel Soloman, “L’ espacement de la lecture: Althusser, Derrida, and the Theory of Reading” Decalages 4 (2012) Gerald Turkel, “Michel Foucault: Law, Power and Knowledge” Journal of Law and Society 17 (1990).

Newspapers Marx, “Chinese Affairs” in Die Presse (7 July 1862).

Pamphlets Jeremy Bentham, Emancipate Your Colonies: Shewing the Uselessness and Mischievousness of Distant Dependencies (London: Reynell, 1830). China Vegetable Oil Corporation Leaflet, Issue 1, 1936. Editorial Department of Renmin Ribao (People’s Daily) and Hongqi (Red Flag), The Origin and Development of the Differences Between the Leadership of the C.P.S.U. and Ourselves (Peking: Foreign Language Press, 1963).

Internet Anne Boyer, “Kill the Philosopher in Your Head” http://thenewinquiry.com/essays/kill-thephilosopher-in-your-head/ (Accessed 20 March 2014).

Reports Hongkong Land Commission, Report on the History of the Sale, Tenure, and Occupation of the Crown Lands of the Colony (Hong Kong: Noronha, 1887).

Archive Materials Hong Kong HKMS 184-1-11. HKRS 41-1-2981, “Tenants — Responsibilities of In Matters of Rent Control, Water and Public Health”. HKRS 46-1-53, “Landlord & Tenant Ord., 1947 Rent Control Committee: the Macneil Report 1953”. HKRS 47-1-114, “Rent Increases (Domestic Premises) Control 20.08.1965–06.06.1968”. HKRS 58-1-73(63), Philip Jacks to Colonial Secretary (30 July 1924).

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Reading Colonies — Property and Control of the British Far East HKRS 58-1-125(44), Philip Jacks to Colonial Secretary (2 August 1924). HKRS 58-1-178(20), Clerk of Councils DW Tratman to Hastings and Co (7 February 1925). HKRS 58-1-140(22), Philip Jacks to Colonial Secretary (3 February 1927). HKRS58/1/172(22), Philip Jacks to Chairman, Kwangsi Bank (24 May 1925). HKRS 70-8-3894, “Rent and Rent Control 1980–1983”. HKRS 80-1-2344 (undated). HKRS 116-1-81, “Land Court Judgement (sic) Land Court Case No. 5” (21 December 1960). HKRS 116-1-78, “Land Court, Southern District, Action No. 2 in 1957” (28 July 1957). HKRS 156-1-41 Yun to Follows (12 January 1946). HKRS 156-1-41, Follows to Yun (11 February 1946). HKRS 156-1-41, Yun to Follows (27 February 1946). HKRS 156-1-787 (15 March 1947). HKRS 156-1-802, “Re Settlement of Outstanding Claims Against the Chinese Nationalist Government” (25 November 1949). HKRS 156-1-1274 (undated) HKRS 156-1-1451 (undated). HKRS 156-1-1654 (2 April 1948). HKRS 156-1-1662 (25 March 1948). HKRS 156-1-12923 (undated). HKRS 156-6-31, “Rent Increases (Domestic Premises) Control Bill, 1970”. HKRS 163-1-1245 (25 April 1947).

Weihaiwei WA 229-1-158, Reginald Johnson to HMB the Commissioner (14 November 1911). WA 229-1-158, HMB The Commissioner to Johnson (15 November 1911). WA 229-1-1357, Acting Consul, HBM Consulate, Weihai to JH Richards (28 March 1931). WA 229-1-1357 HBM Consul Weihai to JH Richards (4 March 1932). WA 229-1-1357 HBM Consul Weihai to JH Richards (4 March 1932). WA 229-1-1357, “Re: White Cottage” (10 February 1938). WA 229-1-1358, J Weston, Laver and Clark to SL Burdett, HBM Consulate Chefoo (30 September 1941). WA 229-1-1358, J Weston, Laver and Clark to SL Burdett, HBM Consulate Chefoo (8 October 1941). WA 229-1-1358, SC Burdett to J Weston (11 October 1941).

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References WA 229-1-1358, “Land Transfer and Proposed Increases in Land Tax at Weihaiwei” HBM Consulate Chefoo to Sir Archibald Cox Kerr HM Ambassador, Shanghai (4 November 1941). WA 229-1-1358, HMB Consulate Chefoo to J Weston (4 November 1941). WA 229-1-180-1009, “Weihaiwei Government Gazette no. 29” (21 September 1918). WA 229-1-1096, “Enclosure 3 (British Consulate WHW)” (1 October 1940). WA 229-1-1096, British Consulate WHW to HIJM Consul, Japanese Consulate WHW (17 December 1940). WA 229-1-9356 J.H. Richards to Revenue Office, Weihaiwei (15 July 1929). WA 229-1-9356 HBM Consulate, Weihai to JH Richards (25 February 1932).

Cases Burma DD Grover v AC Coondar (1955) 1 BLR 54. U San Wa v U Ba Thin Civil Reference No. 2 of 1947 of the High Court, Rangoon.

Hong Kong Bank of East Asia v SN Choy [1946] HKDC 6 (31 August 1946). Ching Sum Co Ltd v Occupiers of No. 16 Tai Yuen St, 2nd Floor [1946] HKDC 4 (15 March 1946). Lee Gwok Ying v H Turner [1946] HKDC 5 (27 August 1946). Ng Wan, the Proprietor of Sang Kee v So Yim [1948] HKCA 5 (19 February 1948). Re On Lok Co [1946] HKCFI 1 (14 January 1946). Shui Hing Co v Chan Kwai [1946] HKDC 1 (28 January 1946). Wright v Low [1947] HKDC 5 (23 October 1947). Wong Pit Him v Shum Tong [1947] HKCA 10 (13 November 1947). Wu Kwan Oi v Ip Yick Chi [1947] HKDC 7 (15 January 1947).

Ceylon Alles v Muthusamy (1947) 50 NLR 211 (25 July 1947). Autukorale v Navaratnam (1948) 49 NLR 461 (20 July 1948). Gunaratne v Thelenis (1946) 47 NLR 433 (16 October 1946). Ismail v Herft (1947) 50 NLR 112 (31 March 1947). Kulawanes v Jayaratne (1947) 48 NLR 347 (2 July 1947). Mendis v Ferdinands (1950) 51 NLR 104 (22 June 1950).

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Reading Colonies — Property and Control of the British Far East Ramen v Perara (1944) 46 NLR 133 (26 October 1944). Talagala v Gangodawila (1947) 48 NLR 472 (3 September 1947). Weerasinghe v Candappa (1950) 52 NLR 91 (22 November 1950). Yoosuf v Suwaris (1950) 51 NLR 381 (3 May 1950).

Treaties and Conventions Convention Between His Majesty and the President of the National Government of the Republic of China (signed and coming into force 18 April 1930).

Legislation Burma Rent Restriction Ordinance 1942 Monthly Leases Termination Act No. XLIX (1946) Tenancy Act No. XXI (1946) Urban Rent Control Act No. XXXIV (1946) Urban Rent Control Act 1948–1960

Ceylon Rent Act (Cap 597)

Hong Kong Proclamation No 15 — Landlord and Tenant of 1945 (22 October 1945). Landlord and Tenant Ordinance (1947).

Presidency of Madras Act XV (Madras Ryots and Tenants’ Protection Act 1946)

Singapore Control of Rent Act 1947 Rent Control Act 1953

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References

Weihaiwei Land and House Tax Regulations 1918 (WHW)

Hansard Hong Kong, Parliamentary Debates, Legislative Council, Minutes, 28 August 1919, 64. Hong Kong, Parliamentary Debates, Legislative Council, Minutes, 23 March 1922, 25. Hong Kong, Parliamentary Debates, Legislative Council, Minutes, 14 June 1923, 50. Hong Kong, Parliamentary Debates, Legislative Council, Minutes, 10 April 1947, 108.

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Index

A

B

Algeria 8–9, 160 Allahar, Louis 15–16, 26 Anderson, Perry 22, 158 Althusser, Louis 2–3, 6–12, 14–21, 24–26, 29, 32, 42, 47–55, 58, 65, 69, 76, 87, 108, 113, 119, 123, 149–151, 153, 157–162, 172, 175–176, 181, 187–188 Algerian war 7 autonomy of law 55, 58–59, 81, 83, 87, 107 early colonial experiences 21, 55, 176 epistemological break 101, 105, 113, 119, 125 French Communist Party (PCF) 9 Future Lasts a Long Time, The 17 Maoism 10, 51 primitive law of development 161 Reading Capital 10, 19, 48, 149– 151, 153–154, 157–158, 160, 162, 164 Anderson, Kevin 154 Arrighi, Giovanni 4

Balibar, Étienne 1, 28, 41, 48, 52, 120, 150, 172 Barty, D.C. 128, 163 Basnayake J 57, 94, 96–97 Bradbrook, Adrian 81 British Malaya (Malaysia) 62, 64, 68, 77–78, 107 Burma 42, 62, 65, 77–78, 92, 101– 107, 112, 118–119, 177

08_Reading Colonies_index.indd 211

C Ceylon (Sri Lanka) 42, 56–58, 62, 65, 77–78, 82, 92–98, 100–101, 105–106, 108, 111–112, 118– 119, 177 Chibber, Vivek 4, 16, 31–32, 154, 180, 188 Chiu, 4 Chiang Kai-shek 34, 133 Chien brothers 35–36 China 1–2, 4–6, 8–16, 20–24, 26–43, 45–47, 60–61, 63, 70, 72, 92, 119, 121, 124, 126–129, 132– 135, 138, 144–146, 163, 167, 175–176, 178–179, 181–187

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Reading Colonies — Property and Control of the British Far East

China Vegetable Oil Corporation 126 Chinese Communist Party (CCP) 80, 142 Critical Legal Studies (CLS) 51

D D’Almada J 83, 84, 87–91, 99, 108, 110–111 decolonization 3, 10, 18, 31, 45, 47, 53, 62–65, 73, 78, 105, 112, 115, 118, 162, 169, 177, 185 dialectical materialism 3, 7, 15, 16, 36, 48, 51, 59, 61, 71, 76, 78, 108, 126, 154–155, 170, 175, 179, 181, 188 dialectical inhibitors 17, 115, 164, 178

E Engels, Friedrich 39, 49, 123 Extraterritoriality 23, 69

F Fanon, Frantz 23, 25, 160 Follows, C.G.S. 129 Ferro, Marc 45 Fitzgerald, C.P. 185 free trade 25, 28, 46

G Grantham, Alexander, Governor 142 Gratiaen J 96

H historical materialism 3–4, 11, 16, 30–31, 153, 156–157, 162, 171 Hobsbawm, Eric 11 Hobson, J.A. 26, 33 Hong Kong 4–5, 20, 28–29, 35, 37, 40, 42, 50, 56, 58, 60, 62, 64–70, 72, 77–85, 89–93, 95–99, 101–102, 105–109, 111–112, 115–121, 123–133, 137, 139, 141–146, 154, 162–165, 168– 169, 171, 177–178, 183 Hu Sheng 12

I Indo-China 9 irredentism 118 Isogai, Rensuke 85

J Jacks, Philip 163–164 Johnson, Reginald 121–122

K Klare, Karl 52–54, 56, 59 Kennedy, Duncan 52–53, 55, 58–59, 64, 75–76, 110 Keuneman J 106 Kornhauser, Lewis 54–55 Kuomintang (KMT) 60, 62, 79, 119, 163, 182

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Index

L

N

land improvement 6, 8, 62, 67, 116, 118 Lau, C.P. 20, 123–125, 131–132 Lockhart, J.S. 136 Luxemburg, Rosa 7, 11–12, 14, 27, 61 excess capital theory 26 Lyotard, Jean-Francois 15

Nanjing 34, 40 nationalism 1, 3, 6, 8, 10, 19–21, 23, 28, 32, 36, 41–43, 47–48, 59–61, 66, 70, 72, 101, 115–119, 130, 143, 153, 160, 162, 171, 176, 180 New Territories 115, 132, 167, 169, 171

O M Madras 62, 65, 78, 97–99, 105–106, 111–112, 118 presidency of 62, 98 Magubane, Bernard 21 Mao Tse-tung 10, 40, 184 Marx 1, 5, 7, 15, 21, 24, 32, 46, 48–50, 63, 113, 152–153, 178 capitalist reproduction 55, 108, 181 modes of production 2–4, 21–25, 32, 36, 51, 60, 62, 160, 176 rent 6, 8, 18, 20–21, 39, 43, 47, 50, 56, 60, 62–66, 68, 73, 75–86, 88, 91–112, 118, 128–129, 137, 140–141, 156, 160, 165–169, 177 metonymy 29–30, 130 modernity 3, 7, 9, 15, 18–19, 37, 40, 45, 51, 60, 72, 152, 182–183, 186, 187

Olivier, Sydney 24–25

R rent control 6, 8, 18, 20, 43, 47, 50, 56, 62–65, 73, 75, 78–79, 81, 84, 91–94, 97, 99–101, 104–106, 108–110, 112, 118, 156, 160, 177 residential segregation 62, 65–66, 164–166 residential apartheid 124, 154, 164, 166, 171 Richards, J.H. 137–139, 144

S Sainsbury, M 127 Sawyer, Marian 24 Severn, Claud 130 Shanghai 12–13, 24, 34–38, 40, 42, 60, 65–69, 72, 137–138, 164, 171, 176

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Reading Colonies — Property and Control of the British Far East

Singapore 37, 40, 42, 62, 64–65, 68, 77–78, 99–100, 105–109, 119, 145, 183, People’s Action Party 99 Soviet bloc 15, 17–18 Spinoza, Baruch 48–51, 158–160 Sun Yat-sen 35, 46, 121, 124, 133, 178, 184 Stoler, Ann Laura 62, 113, 115, 153, 180, 187 Stubbs, Reginald 132, 137

T Turkel, Gerald 108

W Weihaiwei 70, 115–117, 120–122, 125, 130, 133–141, 143–145, 177

Y Young, Robert 2, 10, 51, 59, 150, 158, 176

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