The Changing Roles of Lawyers in China: State Bureaucrats, Market Brokers, and Political Activists

doi:10.1017/CBO9781139683432.011

10 - The Changing Roles of Lawyers in China: State Bureaucrats, Market Brokers, and Political Activists

from Section III - global institutions and the changing roles of judges and lawyers

Published online by Cambridge University Press: 05 May 2016

Sida Liu

Edited by

Heinz Klug and

Sally Engle Merry

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Sida Liu: Affiliation:
University of Wisconsin–Madison
Heinz Klug: Affiliation:
University of Wisconsin School of Law
Sally Engle Merry: Affiliation:
New York University

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Summary

The contemporary Chinese legal profession has been built on the ruins of the Cultural Revolution (1966–1976). When the economic reform began in the late 1970s, the traditional social structure of the country had been bulldozed, and most state and market institutions had to be rebuilt from scratch. Reflections on the social and political turmoil during the Cultural Revolution made the Chinese leadership reconsider the importance of law and legal institutions in maintaining social order and promoting economic development. This generated the most comprehensive state-led legal reform in Chinese history, which has lasted until the present day.

The three decades of rapid reform have changed the landscape of the Chinese legal system in fundamental ways. In legislation, more than 10,000 laws, regulations, ministerial regulations, judicial interpretations, and local regulations have been promulgated and many revised more than once in less than thirty years (Cai 1999; Zhu 2007; Liu and Halliday 2009). In the judicial system, army veterans have been gradually replaced by law graduates, while Chinese courts and procuracies have become complex organizations with an internal bureaucratic structure (Woo 1991, 1999; Zhang 2003; Liu 2006a; Liebman 2007; He 2012). In legal education, more than 600 law schools have been reestablished or newly inaugurated (Zhu 2007: 520), and the knowledge basis of Chinese legal research and education has become Westernized and increasingly technical (Liu 2011b). In appearance, we seem to have witnessed a classic Weberian rationalization of law in the Middle Kingdom (Weber 1978).

Yet the legal system never operates in a vacuum – it always evolves through interactions with its market and political environments. As Chinese law develops into a complex and self-sustaining formal system (Luhmann 2004), its distance from ordinary social life is also substantially increased. The massive appropriation of foreign legal codes and institutions has resulted in the decoupling of formal law from law in action in almost every aspect of the Chinese legal system. Most important, the construction of the legal system is accompanied by rapid structural changes in both the Chinese state and the market economy it seeks to develop. This peculiar juxtaposition of law, state, and market has produced a highly fragmented market for Chinese lawyers in the reform period.

Type: Chapter
Information: The New Legal Realism
Studying Law Globally
, pp. 180 - 198

DOI: https://doi.org/10.1017/CBO9781139683432.011 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

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References

Abel, Richard L. 1988. The Legal Profession in England and Wales. Oxford and New York: Blackwell.

Abel, Richard L. 1989. American Lawyers. New York and Oxford: Oxford University Press.

Alford, William P. 1995. “Tasselled Loafers for Barefoot Lawyers: Transformations and Tensions in the World of Chinese Lawyers.” China Quarterly 141: 22–38.Google Scholar

All China Lawyers Association (ACLA). 2013. “Zhongguo Lüshi Hangye Shehui Zeren Baogao [Report on the Professional Social Responsibilities of Chinese Lawyers].” Accessed September 10, 2013. http://www.acla.org.cn/html/xinwen/1920130827/11102.html.

Burt, Ronald S. 1992. Structural Holes: The Social Structure of Competition. Cambridge, MA: Harvard University Press.

Burt, Ronald S. 2005. Brokerage and Closure: An Introduction to Social Capital. New York: Oxford University Press.

Cai, Dingjian. 1999. Lishi yu Biange: Xin Zhongguo Fazhi Jianshe de Licheng [History and Change: The Process of the Construction of Legal System in New China]. Beijing: China University of Political Science and Law Press.

Carr-Saunders, Alexander M., and Wilson, P. A.. 1933. The Professions. Oxford: Oxford University Press.

China Law Yearbook. 1987–2007. Beijing: China Law Yearbook Editorial Committee.

Dezalay, Yves, and Garth, Bryant. 2002. The Internationalization of Palace Wars: Lawyers, Economists and the Transformation of Latin-American States. Chicago: University of Chicago Press.

Dezalay, Yves, and Garth, Bryant. 2010. Asian Legal Revivals: Lawyers in the Shadow of Empire. Chicago: University of Chicago Press.

Fu, Hualing, and Cullen, Richard. 2008. “Weiquan (Right Protection) Lawyers in an Authoritarian State: Building a Culture of Public Interest Lawyering.” China Journal 59: 111–127.Google Scholar

Fu, Hualing, and Cullen, Richard. 2011. “Climbing the Weiquan Ladder: A Radicalizing Process for Rights-Protection Lawyers.” China Quarterly 205: 40–59.Google Scholar

Fu, Yulin. 2006. Nongcun Jiceng Falü Fuwu Yanjiu [Research on Rural Basic-Level Legal Services]. Beijing: China University of Political Science and Law Press.

Gallagher, Mary E. 2006. “Mobilizing the Law in China: ‘Informed Disenchantment’ and the Development of Legal Consciousness.” Law & Society Review 40: 783–816.Google Scholar

Halliday, Terence C. 1987. Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment. Chicago: University of Chicago Press.

Halliday, Terence C., and Karpik, Lucien, eds. 1997. Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries. Oxford: Clarendon Press.

Halliday, Terence C., Karpik, Lucien, and Feeley, Malcolm M., eds. 2007. Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism. Oxford: Hart Publishing.

Halliday, Terence C., Karpik, Lucien, and Feeley, Malcolm M., eds. 2012. Fates of Political Liberalism in the British Post-Colony. Cambridge and New York: Cambridge University Press.

Halliday, Terence C., and Liu, Sida. 2007. “Birth of a Liberal Moment? Looking through a One-Way Mirror at Lawyers’ Defense of Criminal Defendants in China.” In Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, edited by Halliday, Terence C, Karpik, Lucien, and Feeley, Malcolm M, 65–107. Oxford: Hart Publishing.

He, Xin. 2012. “Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court.” Law & Society Review 46: 681–712.Google Scholar

Larson, Magali S. 1977. The Rise of Professionalism: A Sociological Analysis. Berkeley: University of California Press.

Li, Xueyao, and Liu, Sida. 2012. “The Learning Process of Globalization: How Chinese Law Firms Survived the Financial Crisis.” Fordham Law Review 80: 2847–2866.Google Scholar

Liebman, Benjamin L. 2007. “China's Courts: Restricted Reform.” China Quarterly 191: 620–638.Google Scholar

Liu, Sida. 2006a. “Beyond Global Convergence: Conflicts of Legitimacy in a Chinese Lower Court.” Law & Social Inquiry 31: 75–106.Google Scholar

Liu, Sida. 2006b. “Client Influence and the Contingency of Professionalism: The Work of Elite Corporate Lawyers in China.” Law & Society Review 40: 751–782.Google Scholar

Liu, Sida. 2008. “Globalization as Boundary-Blurring: International and Local Law Firms in China's Corporate Law Market.” Law & Society Review 42: 771–804.Google Scholar

Liu, Sida. 2011a. “Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market.” China Quarterly 206: 276–293.Google Scholar

Liu, Sida. 2011b. “With or Without the Law: The Changing Meaning of Ordinary Legal Work in China, 1979–2003.” In Chinese Justice: Civil Dispute Resolution in Contemporary China, edited by Woo, Margaret Y. K and Gallagher, Mary E, 234–266. Cambridge and New York: Cambridge University Press.

Liu, Sida. 2012. “Palace Wars over Professional Regulation: In-House Counsel in Chinese State-Owned Enterprises.” Wisconsin Law Review 2012: 549–571.Google Scholar

Liu, Sida. 2013. “Falü Zhiye de Zhengzhi Mingyun [The Political Fate of the Legal Profession].” Jiao Da Faxue [SJTU Law Review] 2013(1): 93–100.Google Scholar

Liu, Sida, and Halliday, Terence C.. 2009. “Recursivity in Legal Change: Lawyers and Reforms of China's Criminal Procedure Law.” Law & Social Inquiry 34: 911–950.Google Scholar

Liu, Sida, and Halliday, Terence C.. 2011. “Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers.” Law & Society Review 45: 831–865.Google Scholar

Liu, Sida, Liang, Lily, and Halliday, Terence C.. 2014. “The Trial of Li Zhuang: Chinese Lawyers’ Collective Action against Populism.” Asian Journal of Law and Society 1: 79–97.Google Scholar

Lu, Hong, and Miethe, Terence D.. 2002. “Legal Representation and Criminal Processing in China.” British Journal of Criminology 42: 267–280.Google Scholar

Luhmann, Niklas. 2004. Law as a Social System. Translated by Ziegert, Klaus A. New York: Oxford University Press.

Ma, Kechang. 2007. Tebie Bianhu: Wei Lin Biao, Jiang Qing Fangeming Jituan An Zhufan Bianhu Jishi [Special Defense: Notes on the Defense for the Counter-Revolutionary Groups of Lin Biao and Jiang Qing]. Beijing: Chang'an Press.

Mertha, Andrew C. 2005. The Politics of Piracy: Intellectual Property in Contemporary China. Ithaca, NY: Cornell University Press.

Michelson, Ethan. 2003. “Unhooking from the State: Chinese Lawyers in Transition.” PhD diss., University of Chicago.

Michelson, Ethan. 2006. “The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work.” Law & Society Review 40: 1–38.Google Scholar

Michelson, Ethan. 2007. “Lawyers, Political Embeddedness, and Institutional Continuity in China's Transition from Socialism.” American Journal of Sociology 113: 352–414.Google Scholar

Michelson, Ethan, and Liu, Sida. 2010. “What Do Chinese Lawyers Want? Political Values and Legal Practice.” In China's Emerging Middle Class: Beyond Economic Transformation, edited by Li, Cheng, 310–333. Washington, DC: Brookings Institution Press.

Minzner, Carl F. 2011. “China's Turn against Law.” American Journal of Comparative Law 59: 935–984.Google Scholar

Pils, Eva. 2005. “Asking the Tiger for His Skin: Rights Activism in China.” Fordham International Law Journal 30: 1209–1287.Google Scholar

Sarat, Austin, and Scheingold, Stuart A, eds. 1998. Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford University Press.

Sarat, Austin, and Scheingold, Stuart A. 2001. Cause Lawyering and the State in a Global Era. New York: Oxford University Press.

Wang, Yaxin. 2006. “Nongcun Falü Fuwu Wenti Shizheng Yanjiu (1) [Empirical Research on Rural Legal Service (1)].” Fazhi yu Shehui Fazhan [Law and Social Development] 2006(3): 3–34.Google Scholar

Weber, Max. 1978. Economy and Society. Edited by Roth, Guenther and Berkeley, Claus Wittich: University of California Press.

Woo, Margaret Y. K. 1991. “Adjudication Supervision and Judicial Independence in the P. R. C.” American Journal of Comparative Law 39: 95–119.Google Scholar

Woo, Margaret Y. K. 1999. “Law and Discretion in the Contemporary Chinese Courts.” Pacific Rim Law & Policy Journal 8: 581–615.Google Scholar

Xu, Hui. 2008. Tongxiang Shehui Zhengyi zhi Lu: Gongyi Susong Lilun Yanjiu [The Road to Social Justice: Theoretical Studies of Public Interest Litigation]. Beijing: Law Press.

Ying, Xing. 2007. “‘Yingfa Ruxiang’ yu ‘Jiejin Zhengyi’: Dui Zhongguo Xiangcun ‘Chijiao Lüshi’ de Ge'an Yanjiu [‘Welcoming Law into the Countryside’ and ‘Access to Justice’: A Case Study on ‘Barefoot Lawyers’ in Rural China].” Zhenfa Luntan [Tribune of Political Science and Law] 25(1): 79–94.Google Scholar

Yu, Ping. 2002. “Glittery Promise vs. Dismal Reality: The Role of a Criminal Lawyer in the People's Republic of China after the 1996 Revision of the Criminal Procedure Law.” Vanderbilt Journal of Transnational Law 35: 827–865.Google Scholar

Zhang, Delin. 2001. “Qiye Falü Guwen: Qiye Gaige Fazhan de Baohushen [Enterprise Legal Advisors: The Patron Saint for the Reform and Development of Enterprises].” Accessed April 28, 2009. http://www.sasac.gov.cn/n1180/n1566/n11183/n11214/1803815.html.

Qianfan, Zhang. 2003. “The People's Court in Transition: The Prospects of the Chinese Judicial Reform.” Journal of Contemporary China 12(34): 69–101.Google Scholar

Zhou, Hua. 2008. “Beijing Lüshi Xiehui Zhixuan Fengbo [The Direct Election Incident of the Beijing Lawyers Association].” Nan Feng Chuang [Southern Reviews], October 14. Accessed September 10, 2013. http://www.nfcmag.com/article/1116.html.

Zhu, Jingwen, ed. 2007. Zhongguo Falü Fazhan Baogao: Shujuku he Zhibiao Tixi [Report on China Law Development: Database and Indicators]. Beijing: Renmin University of China Press.