Inquiring Minds
b a l a n cin g a c t By Stuart F. Brown For China’s large new class of lawyers, practice can be dangerous
T
he ranks of Chinese lawyers, never large, began growing after 1978, when China launched its Reform and Opening Up program, aimed at achieving a capitalist economy under authoritarian government. By 2005, with 551 new law schools added to the eight that existed in 1976, the country claimed more than 130,000 attorneys and another 450,000 law students. The emerging Chinese legal profession differs from its American counterpart in almost every aspect, from training to practice, as Boston College law professor Judith McMorrow observed during a Fulbright-sponsored year of teaching at Beijing’s Renmin University School of Law, the purpose of which was to advance “mutual understanding of legal systems and legal cultures.” Writing in the Akron Law Review (volume 43, number 3), McMorrow describes Chinese legal studies as “largely an undergraduate major rather than [a] professional education.” Chinese law is taught as “a body of rules,” and professors, she says, have “little or no” practical legal experience. Recently created Juris Master programs, introduced in 1995 and growing in popularity, with 65,000 students today, similarly adhere to a “purely academic approach.” Missing, says McMorrow, who teaches courses in torts and professional responsibility at the Law School, is the sense one gets in the United States of the law as a “living organism”—and recognition of the “messiness of legal practice.” Also absent, for the most part, is a course deemed mandatory in American law schools: legal ethics. As scholars have noted elsewhere, and as McMorrow observed firsthand, lawyers in China are not agents of change, certainly not social change. Even when depicted in the country’s movies and television shows, she writes, they are neither heroes nor villains. The Chinese hierarchy of legal responsibilities is clear-cut: Once handed down by the central government, laws may evolve only “under the rubric” of the Communist Party’s interpretation, she says. Judges are held to be “subordinate to the local party.” It is the law that resolves disputes, McMorrow says. In the absence of an independent judiciary and a common-law process,
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Chinese lawyers are brokers who cultivate judges and local government functionaries, building personal networks—known as guanxi—with officials who can resolve problems for their clients. (Accordingly, formal legal study is not a prerequisite for taking the bar exam.) “Corruption is a widely discussed topic in China,” says McMorrow, but “legal ethics are not a priority” when legal practice necessarily involves “significant ethical compromises.” In the United States, McMorrow writes, “we often portray legal ethics as questions of dilemmas—what to do with competing duties pushing us in different directions.” But in China, “there is danger in suggesting that duties to the state do not ultimately trump.” Handling commercial cases or private contract disputes is a safe career choice; lawyers who choose to represent elements of society disfavored by the central government, such as the spiritual group Falun Gong, lose their licenses or face other restrictions. The result, she says, is a “fragile and tentative” legal system that is “steadily improving in areas of economic issues, but remains highly uncertain when seen through a rights model.” A 1996 Lawyer’s Law, amended in 2008, clarified fine points of attorney licensing and practice without altering the balance of lawyerly duties and influence. McMorrow cites one Chinese lawyer, Mo Xiaoping, as an exception of sorts, for his frequent representation of controversial clients, such as Xu Wenli, a founder of the banned China Democracy Party. Mo, she says, survives because he “has developed the art of maneuvering just below the point of sanction”; Mo himself credits his decision “to focus on legal technicalities and avoid political statements.” “China is trying to create a legal system that has economic liberty, but not civil liberties,” McMorrow says. “It is an open question what China will do with all these young graduates trained in law.” Stuart F. Brown is a writer based in Dobbs Ferry, New York. Read Judith McMorrow’s article on legal ethics in China at Full Story, www.bc.edu/bcm.
illustration :
Chris Sharp