5.1 TRANSLATION OF INTERNATIONAL LAW
Translations do not come out of nowhere. Someone has to know a foreign work and want to translate it; someone has to want to publish it; language must exist or be manufactured into which to translate the work.
These different factors shape what gets translated, how it is rendered, and who will read it. Early translations of “rights” are as much part of existing discourses as they are the inauguration of a new one. In this section I will illustrate these ideas by examining the earliest two translations of Western rights terminology into Chinese.5.1.1 The Illustrated Compendium
Let us begin at the beginning: in the middle of increasing disputes between Chinese authorities and English merchants over trade in opium. The Chinese official who, drawing on centuries of statecraft thought, tries to deal with the aggressive foreigners is Lin Zexu (1785-1850).[80] He supports the efforts of the best-known statecraft thinker of the era,Wei Yuan (1794-1856), to study and advocate techniques and ideas known in the West. Wei Yuan, in turn, is able to draw on the talents of a small core of bilingual Chinese and foreigners. The result of these collaborations is the publication of the Illustrated Compendium on Coastal Nations in 1840. It contains a wide variety of material, ranging from maps to instructions for making cannons to discussions of diplomacy; buried among these, a scant eight pages among its more than three thousand, are translated selections from Emmerich de Vattel’s Le Droit des gens (The Law of Nations), a textbook on international law published in France in 1758.
In all, the Compendium contains five selections from Vattel, all of them based on an 1833 English translation of Vattel’s original [Svarverud 2000]. Two selections are translated by Peter Parker, an American missionary and physician living in Canton. The remaining three - of which two are based on the same sections as those Parker translated - are translated by Yuan Dehuai, a former imperial translator and a member of Lin’s staff.
A contemporary scholar has argued plausibly that Yuan used Parker’s brief translations as bases for his longer versions [ibid.]. Parker’s and Yuan’s first selections are both drawn from a section on the prohibition of foreign merchandise. The paragraph begins, in an 1820 American translation, “Every state has, consequently, a right to prohibit the entrance of foreign merchandise, and the people who are interested in this prohibition have no right to complain of it, as if they had been refused an office of humanity” [Vattel 1820, p. 95]. We can well understand why Wei and his patron Lin would have been interested in the Western view of such prohibitions, for Lin wanted to impose just such a prohibition on Western merchants. In any event, Parker translates only the first of the two uses of “right,” rendering it with “li,” which can mean custom or rule. With regard to what might be distinctive about this type of rule, Parker’s version follows the original rather closely, explaining that nations can prohibit trade out of a desire to avoid suffering losses at another’s expense. Such prohibitions cannot be complained about on grounds of “humanity” - rendered “renqing” by Parker - because they are merely matters of profit [Wei 1840, p. 3031].Parker next turns to the question of when war is justified. The sections of Vattel’s work on which this selection is based are replete with the word “right(s),” but there is no term that seems to correspond with it in Parker’s version. Parker writes that just wars “accord with heavenly pattern (tianli)” and with “righteousness (yi),” but we see nothing that corresponds to the twin uses of “right” in “In treating the law of safety, we have shewn that nature gives men a right to use force, when it is necessary for their defense, and the preservation of their rights” [Vattel 1820, p. 356]. Interestingly, Parker does use the word “bingquan” to render the power or authority to wage war; we will see later that “quan” comes to be used in the 1860s to mean rights [Wei 1840, p.
3032]. But that does not seem to be Parker’s intention. Indeed, it may be an exaggeration to say that he intends “li” as a translation of rights at all. Only once of the eight times in which the sections he is translating use “rights” does Parker put “li” in a corresponding place in his Chinese text, leading a contemporary analyst to conclude that Parker was not “introducing li as a technical term for ‘rights’ ” [Svarverud 2000, fn. 29].Like Parker, Yuan translates only one use of “right” from the first sentence; unlike Parker, Yuan uses “daoli,” literally the “pattern of the way” and meaning something close to “moral principle,” to render “right.” Yuan’s third selection is also the same as Parker’s, but Yuan does translate several appearances of “right,” again using “daoli” [Wei 1840, pp. 3034, 3036]. Yuan leaves his readers with the impression that these principles have the same status as any other moral principle; at one point he says that “this kind of moral pattern is eternally in people’s hearts; this is something that all people know” [Wei 1840, p. 3036]. I noted in the last paragraph that Parker once uses “quan” to correspond with “authority.” Yuan also does this once, though in a slightly different part of the section on war, and then uses “quan” twice in the next sentence, corresponding to places where the original has “rights” instead of “authority.” Given his consistent use of “daoli” to translate “rights” and the contexts in which “quan” appears, the best interpretation of these uses of “quan” is that they all refer to the authority - the legitimate powers - of monarchs, rather than to any more general notion of rights.
Neither Parker’s nor Yuan’s rendering of “rights” had any noticeable impact on subsequent rights discourse. This is not the fault of the text in which they appeared; the Illustrated Compendium was widely read and influential [Masini 1993, p. 23]. Many terms still in use today, among them the Chinese words meaning “import” and “trade,” originate in this work.
That “li” and “daoli” fail to catch on as translations for “rights” seems nonetheless quite easy to explain. It is not that Parker’s and Yuan’s translations were bad, in the sense of failing to exactly capture the meaning of “rights”; that would not explain why Chinese who had no grounds for comparison failed to use them. The reason is rather that, in Parker’s and Yuan’s renderings, neither “li” nor “daoli” stands out as representing anything new or different. China had long had rules, customs, and principles grounded either in expediency or in morality; both “li” and “daoli” would continue to be used in their previous senses. It would take a more systematic presentation of a foreign rights theory, together with a more novel rendering of its terminology into Chinese, to make the distinctiveness of a new concept, however exactly related to rights, salient to Chinese readers.5.1.2 Martin’s General Laws of the Myriad Nations
More than twenty years passed after the publication of the Illustrated Compendium before another effort was made to translate a Western international law text into Chinese. In 1862, the American missionary W. A. P. Martin began work on a translation of Henry Wheaton’s Elements of International Law, a standard text first published in 1836. A year later he offered his completed translation to the recently established Chinese diplomatic agency. Prince Gong, an uncle of the emperor and leader of the diplomatic agency, accepted Martin’s draft, though he had members of his staff refine the text’s style. It was published in 1864 as General Laws of the Myriad Nations (Wanguo Gongfa) and immediately proved useful. When a Prussian warship seized three Danish merchant vessels anchored in a Chinese port, Prince Gong was able to use definitions learned from Wheaton, together with the texts of Chinese treaties with Prussia, to force the Prussian minister to release the Dutch ships and to pay China $1,500 of compensation for having infringed on China’s jurisdiction over its territorial waters.
Prince Gong said about Wheaton’s book that although “the said book on foreign law and regulations is not basically in agreement with the Chinese systems, it nevertheless contains sporadic useful points” [Hsu 1960, pp. 133-4].Subsequent sections of this chapter will detail ways in which concepts and vocabulary introduced by the General Laws influenced both Chinese and Japanese rights discourses. In the balance of this section, I will look at these important formulations in their original contexts and ask, among other questions, why these translations succeeded in ways that Parker’s and Yuan’s renderings of “rights” did not.
The word most frequently used to translate “rights” is “quan.” “Natural rights” is “ziran zhi quan” “personal rights” is “siquan” “rights of equality” is “pingxing zhi quan” “property rights” is “zhangwu zhi quan” and so on. “Quan” does not always correspond to “rights,” however; in a number of places it is used to translate “authority” [Martin 1864, vol. 1, pp. 1b, 19b]. In addition, it appears as part of the compound “zizhu zhi quan,” literally “the quan of self-mastery,” which is used to translate “independence” [ibid.,p. 16a].
The earliest meanings of “quan” are concerned with weighing, both literally and figuratively. In a famous passage from the Mencius, it is used to refer to the moral judgment of a virtuous person when deciding to bend a rule in order to achieve a greater good.[81] In many contexts, though, “quan” has no connection with morality, and often comes to mean simply power [Zhang et al. 1973, vol. 5, pp. 524-5]. A Chinese reader of the General Laws would immediately understand that there was something special about “quan.” The quan of a state or individual are not simply the powers it happens to have; the text makes clear that quan is a normative notion, dependent on reason, justice, and agreements. That is, one can talk about the quan a state has to equality or independence whether or not it is equal or independent: These are things states ought to have.
All this comes through in Martin’s translation. Strikingly, at one point where Wheaton says that the two sources of the laws of nations are reason and usage, Martin renders this by “li ?” for “reason” and “li $|” for “usage”: almost the identical terms used in the Illustrated Compendium to correspond to “rights” itself.[82] Admittedly, since “rights” and “authority” are translated in the same way, it would be difficult for readers to see whatever differences Wheaton felt there to be between the two words, but in fact when one is speaking of a state’s rights or authority, the two really come to much the same thing: legitimate powers.[83]“Quan” continues its connection to “rights” on down to the present day. A more specific term, also introduced in General Laws, gradually comes to be even more important that “quan” however. This is the compound “quanli,” accepted throughout the twentieth century as the standard translation of “rights.” Like “quan” itself, “quanli” has a long history. The earliest use of the words “quan li” occurs in the Confucian classic Xunzi (c. 220 b.c.e.). The author says that when one has perfected one’s learning and self-cultivation, “quan li cannot move one [to do wrong].”[84] Standard Chinese interpretations of this sentence seem to take it as a compound, rendering “quanli” as “power-and-profit.”[85] For my purposes, nothing hangs on whether quanli is a single thing (and “quanli” a compound term) in this and other early uses. All that matters is that quanli (or quan and li) involves reference to personal profit or benefit, rather than to any more general notion of well-being, and that Xunzi believes we ought not be swayed by it. This negative connotation that Xunzi attaches to quanli, which is related to the repeated admonitions against li (profit) by other Confucians,[86] derives from Xunzi’s belief that one should attend to ritual and ethical propriety rather than any sort of utility. “Quanli” is used repeatedly in subsequent texts, but I know of no uses of the term prior to the nineteenth century that give it a positive connotation.[87]
In the General Laws, the term “quanli” undergoes two kinds of transformations. First, it is regularly used in approximately its traditional sense, but with a positive connotation instead of its older negative connotation. In one case, for instance, Wheaton’s original has a reference to certain “advantages of trade” that a British subject who has become an American citizen might have, in virtue of his new citizenship, when trading with England. Wheaton says that even if this person were to temporarily return to England, this “would not deprive him of those advantages” [Wheaton 1878 (1836), p. 118]. In the translation, “quanli” is used to render both “advantages of trade” and the subsequent “advantages” [Martin 1864, vol. 2, p. 24b]. “Quanli” is also used repeatedly to render the “privileges” that ambassadors have while on their foreign postings [ibid., vol. 1, pp. 4a, 4b, 5b]. In each of these cases, the “quanli” is used as a compound term expressing the combined powers and benefits that come with trade or with diplomatic status.
Unquestionably more important, at least in the long run, is the second change. “Quanli” is occasionally used as a direct translation for “rights.” In Wheaton’s text, we read: “A state is a very different subject from a human individual, from whence it results that obligations and rights, in the two cases, are very different” [Wheaton 1878 (1836), p. 12]. Martin’s text puts the matter this way: “Now the various states and the multitudes of people (shuren) are widely different, and thus their obligations (mingfen) and rights (quanli) also have differences” [Martin 1864, vol. 1, p. 7b]. Elsewhere, in a passage on the “conduct of foreign states towards another nation involved in civil war,” Wheaton says that when such foreign states profess neutrality, they must “allow impartially to both belligerent parties the free exercise of those rights which war gives to public enemies against each other” [Wheaton 1878 (1836), p. 32]. In his translation, Martin refers to these as “jiao zhan quanli” [Martin 1864, vol. 1, p. 19b].
It is not clear that a reader of Martin’s text would come away with a distinctive conception of quanli that would come anywhere close to Wheaton’s understanding of rights. The several contexts in which it occurs muddle the question of whether quanli is a normative or merely empirical notion - that is, whether quanli are things we have through some kind of moral obligation, or simply through contingent circumstance. Are quanli just advantages, or are they something more significant? These ambiguities perhaps explain why, as we will see in the next section, it is quan rather than quanli that are discussed in China after the publication of the General Laws. In Japan, things are somewhat different; there, we will see that once the General Laws arrives from China in 1866, “quanli” is picked up very quickly as a translation for “rights.”
Martin himself seemed to understand the difficulties that readers would have with quan and quanli, writing in a headnote to a slightly later translation which similarly dealt with international law:
International law is a separate field of knowledge and requires a special terminology. There were times when we could not find a proper Chinese term to render the original expression, so our choice of words would seem less than satisfactory. Take the character quan, for example. In this book the word means not only the kind of power one has over others, but also the lot (fen) that moral pattern (li) prescribes to each person. Occasionally, we would add the word li 5É [to form a compound], as, for example, in the expression ‘the original quanli of the common people,’ and the like. At first encounter, these words may seem odd and unwieldy, but after seeing them repeatedly, you will come to realize that the translators have really made the best of necessity.11
We will have occasion to see what Martin’s readers made of these concepts in the next two sections of the chapter. [88]