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Tasselled Loafers for Barefoot Lawyers: Transformation and Tension in the World of Chinese Legal Workers*

Published online by Cambridge University Press:  12 February 2009

William P. Alford
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Extract

A prevalent image of China, both historically and in recent times, has been that of a civilization spared the malady of too many lawyers that is said to beset the United States and growing numbers of other nations. For better or worse, so such thinking goes, China has sought to address its problems primarily through reliance upon morality, custom, kinship or politics, rather than formal legality, with the result that there has been relatively little need for individuals whose work lies in the law. No wonder that it was Shakespeare, rather than a Chinese author, who gave voice to the much-cited, if arguably misunderstood, call to “kill all the lawyers first.”

Type
China's Legal Reforms
Information
The China Quarterly , Volume 141 , March 1995 , pp. 22 - 38
Copyright
Copyright © The China Quarterly 1995

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References

1. The absence of a legal profession in late imperial China is treated in Derk Bodde and Morris, Clarence, Law in Imperial China (Cambridge, MA: Harvard University Press, 1967)Google Scholar, while the same phenomenon is discussed with reference to the early years of the PRC in Li, Victor, Law Without Lawyers (Stanford: Stanford Alumni Association, 1978).Google Scholar For recent efforts to draw a more complete picture of the Chinese scene at various points, see the works cited in nn. 23–26, below.

2. William Shakespeare, Henry VI, Part 2, Act IV, scene 2. Actually, one reading of these words, uttered by the rebel Dick the Butcher, is as a compliment to lawyers as a bulwark against would-be autocrats. Other, perhaps more prevalent, readings take these words in a rather more literal fashion.

3. Gelatt, Timothy, “Lawyers in China: the past decade and beyond,” New York University Journal of International Law and Politics, No. 23 (1991), p. 751.Google Scholar

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5. Cited in %Yang, Xiao, “Reform of the lawyer's system in China,” speech delivered on 15 October 1993, p. 3.Google Scholar

6. This figure is for bengoshi, those Japanese lawyers who have a monopoly on court appearances. Although much cited, it is somewhat misleading in that it fails to take account of the thousands of students who annually graduate with law degrees, fail the bar exam, and then take positions in government or business in which they, in fact, regularly do law-related work.

7. See, for example, Xiaolu, Zhao, “Hezuozhi liishi shiwusuo ruogan wenti chuyi” (“Ruminations on certain questions about co-operative law firms”), Sifa xingzheng (Judicial Administration), July 1991, pp. 31–33Google Scholar; Fuming, Dong and Wenying, Mo, “Huangpu jiang pan de jueqi: fang Li Guoji lüshi shiwusuo” (“Rising up over the Huangpu River: an interview with the Li Guoji law firm”), Lüshi yu fazhi (Lawyer and Legal System), No. 5 (1988), p. 6Google Scholar; Gui, Si, “Neimeng gaoyuan shang yi zhi duxiu” (“A brilliant star on the Inner Mongolian plateau”), Lüshi yu fazhi, No. 5 (1991), p. 41Google Scholar; “Hezuozhi lüshi shiwusuo jiaohao” (“Acclaim co-operative law firms”), Lüshi yu fazhi. No. 1 (1992), p. 5. The Western media have also echoed such themes. See, for example, Murphy, Kevin, “In China, an outbreak of lawyers; but there aren't enough in business-mad Guangdong,” International Herald Tribune, 10 September 1993Google Scholar; “Law firms: BJ law,” The Economist, 14 August 1993, p. 66; Lambert, Wade, “Chinese firm puts its shingle out in U.S.,” The Wall Street Journal, 2 August 1993, p. B3Google Scholar; and Slind-Flor, Victoria, “China's riches lure lawyers,” The National Law Journal, 29 November 1993.Google Scholar

8. Sifabu, Lüshisi (The Lawyers’ Division, Ministry of Justice) (ed.). Quanguo Lüshi youxiu anli jingxuan (Selected Outstanding Cases by Lawyers Throughout the Nation) (Beijing: Renmin daxue chubanshe, 1993).Google Scholar

9. Zhonghua renmin gongheguo lüshi fa (xiugai dishi gao) (The Lawyer's Law of the People's Republic of China - tenth revised draft). The draft builds upon such recent documents as the Lüshi zhiye daode he shiye jilu guifan (A Code of Professional Ethics and Discipline for Lawyers) promulgated by the Ministry of Justice, 11 January 1994.

10. Parsons, Talcott, “The professions and social structure,” Social Forces, No. 17 (1939) p. 457CrossRefGoogle Scholar; “The legal profession,” in William, Evan (ed.), Law and Sociology (Glencoe, III.: The Free Press, 1962)Google Scholar; The Structure of Social Action (New York: The Free Press, 1968); “Professions,” in David, Sills (ed.), International Encyclopedia of the Social Sciences, XII (New York: The Free Press, 1968).Google Scholar

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17. See, for example, Robert Gordon and William Simon, ‘The redemption of professionalism?” in Nelson, Trubek and Solomon, Lawyers Ideals/Lawyers Practices; Gordon, Robert, “The independence of lawyers,” Boston University Law Review, No. 68 (1989), p. 1.Google Scholar

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21. Osiel, Mark, “Lawyers as monopolists, aristocrats and entrepreneurs,” Harvard Law Review, No. 103 (1990), p. 2004.Google Scholar Fascinating though Osiel's work is, the data he adduces could also be used to reach a very different conclusion - namely, that the analytically more circumscribed role of lawyers in a civil law system and their typically greater reliance upon the state as an employer has left them with less independence than their common law brethren. In fairness, it should also be noted that Abel has written about the profession in the United Kingdom and edited collections of essays by other scholars that consider the profession in additional (mostly industrialized) nations. As Osiel observes, however, little of that comparative data seems to have been incorporated into Abel's basic theory.

22. I address these themes in William, Alford (ed.), Legal Aspects of International Economic Activity (unpublished course materials, Harvard Law School, 1994)Google Scholar and in my current research on the formation of the legal profession in East Asia.

23. Alford, William, “Of arsenic and old laws: looking anew at criminal justice in Late Imperial China,” California Law Review, No. 72 (1984), p. 1180.CrossRefGoogle Scholar

24. See, for example, Huang, Philip, “Codified law and magisterial adjudication in the Qing,” in Philip, Huang and Kathryn, Bernhart (eds.). Civil Law in Qing and Republican China (Stanford: Stanford University Press, 1994).Google Scholar

25. Alison Conner, “Lawyers and the legal profession during the Republican period,” in Huang and Bernhart, Civil Law in Qing and Republican China.

26. See, for example, Alford, William and Yuanyuan, Shen, “Law is my idol': John C.H. Wu and the role of legality and spirituality in the effort to ‘modernise’ China,” in Ronald, Macdonald (ed.). Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1993).Google Scholar

27. Lubman, Stanley, “Methodological problems in studying Chinese Communist civil law” in Jerome, Cohen (ed.), Contemporary Chinese Law: Research Problems and Perspectives (Cambridge, MA: Harvard University Press, 1970), p. 234.Google Scholar

28. Author's interviews, Los Angeles, November 1989; Beijing, October 1993 and August 1994.

29. Gelatt, “Lawyers in China.”,

30. The Chinese system of “part-time lawyers” is discussed in Zheng, Henry, “The evolving role of lawyers and legal practice in China,” American Journal of Comparative Law, No. 36 (1988), p. 473.CrossRefGoogle Scholar

31. Lubman, Stanley, “Emerging functions of formal legal institutions in China's modernization,” China Law Reporter, No. 2 (1983), p. 195.Google Scholar

32. The implications of being an institutional unit as opposed to an enterprise unit (qiye danwei) in terms of the capacity of the unit to retain its earnings are discussed in Chen, Albert, An Introduction to the Legal System of the People's Republic of China (Singapore: Butterworths, 1992), p. 133.Google Scholar

33. Even now, the standard fee for handling a criminal case ranges between only 30 and 150 yuan (which is roughly equivalent to US$3.50 to $ 17.50), while the floor for representing Chinese parties in civil cases is 70 yuan, although fees are increasingly becoming far higher in commercial matters. Ying, Li, “The beginning of the legal profession in the PRC: the impact of non-state law firms” (unpublished paper. Harvard Law School, 1994).Google Scholar

34. Zhonghua renmin gongheguo lüshi zanxing tiaoli (Provisional Regulations of the People's Republic of China on Lawyers) in 1980 Zhongguo renmin gongheguo fagui huibian (The Collected Laws and Regulations of the People's Republic of China), Vol. 44 (Beijing: Falü chubanshe, 1986).

35. On the important roles of notaries in matters of Chinese civil law, see Lubman, “Methodological problems.”

36. The rules that were subsequently handed down to govern these offices are Guanyu xiangzhen falü fuwusuo de zanxing guiding (Provisional Regulations on Rural Legal Service Stations) reprinted in Zhongguo falü nianjian (Law Yearbook of China) (Beijing: Falü chubanshe, 1988), p. 586.

37. For a learned discussion of village mediation in the PRC, see Michael Palmer, “The revival of mediation in the People's Republic of China: (1) Extra-judicial mediation,” in William Butler (ed.), Yearbook of Socialist Legal Systems 1987, p. 219; “The revival of mediation in the People's Republic of China: (2) Judicial mediation,” in Butler, Yearbook of Socialist Legal Systems 1988.

38. Alford, William, “When is China Paraguay?” Southern California Law Review, No. 61 (1987), p. 79.Google Scholar

39. Quoted in Chen, An Introduction.

40. This has already been borne out by a veritable explosion in litigation as Chinese courts now hear some three million cases a year. Zhongguo falü nianjian.

41. Author's interviews, Beijing, October and November 1993 and August 1994.

42. Chen, An Introduction, p. 145.

43. Author's interviews, Beijing, October and November 1993 and August 1994.

44. There are, for example, approximately 3,000 lawyers in Korea, although, as with Japan, there are a number of other individuals who have studied law as undergraduates performing tasks often done by lawyers in North America.

45. Rohwer, James, “Survey: China: the Titan stirs,” The Economist, 28 November 1992, survey: pp. 1–4.Google Scholar

46. Cited in Xiao Yang, “Reform of the lawyer's system in China,” p. 3.

47. Ibid. p. 4.

48. Ibid. p. 4.

49. These various programmes are discussed in Alford, William and Liufang, Fang, “Legal training and education in the 1990's: an overview and assessment of China's needs” (Report for the World Bank, 1994).Google Scholar

50. Xiao Yang, “Reform of the lawyer's system in China,” p. 5.

51. The Association's charter is reprinted in Zhong, Baixinet al. (eds.), Quanguo lüshi zige zongkao bidu (Necessary Reading for the National Lawyers Qualifying Examination) (Changcbun: Jilin daxue chubanshe, 1990).Google Scholar

52. Hezuozhi lüshi shiwusuo shidian fangan (Experimental Programme for Co-operative Law Firms).

53. Author's interviews, Beijing, October and November 1993 and August 1994.

54. Lambert, “Chinese firm put its shingle out in U.S.”

55. In its most pronounced form, this has led to lawyers assisting dissidents bringing case against the state or Party interests. See, for example, Alford, William, “Double-edged swords cut both ways: law and legitimacy in the People's Republic of China,” Daedalus, No. 122 (1993), p. 45. See also “Wang, lawyer and great escaper,” South China Morning Post International Weekly, 2–3 July 1994, p. 11.Google Scholar

56. Kaye, Lincoln, “Don't tread on us,” Far Eastern Economic Review, 24 March 1994, p. 16.Google Scholar

57. The problem is exacerbated by the failure of Chinese law to limit ex pane contacts between judges and counsel.

58. Ironically, some Chinese lawyers appear to be resisting the reclassification of their firms as enterprise danwei for reasons of tax avoidance.

59. The PRC is now making concerted efforts to upgrade its accounting standards.

60. Qici, Lin and Xian, Wu, “Hezuo lüshi zhi: Zhongguo lüshiye de xuanze” (“The co-operative lawyer's system: the choice of the Chinese legal profession”) Nanfang zhoumo (Southern Weekend), 24 September 1993, p. 2.Google Scholar

61. Examples of the type of questions asked in the examination are contained in Zhong Baixin et al., Quanguo lüshi zige zongkao bidu.

62. See Sifabu lüshisi, Quanguo lüshi youxiu anli jingxuan. Also, “Sifabu guanyu lüshi gongzuo jinyibu gaige de yijian” (“Opinion of the Ministry of Justice regarding further reform of the work of lawyers”) Lüshi shijie (Lawyer's World), August 1992, p. 2.

63. See, for example, Nengchun, Wang, “Duoguizhi Lüshi tizhi chutan” (“A preliminary exploration of a pluralistic lawyers’ system”) Lüshi shijie, August 1993, p. 11Google Scholar; Fei, Wang, “Queli guo cuo peichangzhi de tantao” (“Examining the establishment of a legal malpractice compensation system”) Faxue (Studies in Law), No. 12 (1992), p. 35.Google Scholar

64. Xiao Yang, “Reform of the lawyer's system in China,” p. 4.

65. Zhong, Yang and Daxun, Xu, “Lüshi shiwusuo buying chengwei yingyeshui he suodeshui de nashi zhuti” (“Law firms should not be subject to business and income taxes”) Zhongguo lüshi (Chinese Lawyer) No. 5 (1991), p. 37.Google Scholar

66. See Alford, William, To Steal a Book is an Elegant Offense: Intellectual Property in Chinese Civilization (Stanford: Stanford University Press, 1995)Google Scholar, chs. 4 and 6.

67. Anecdotal data suggest that PRC lawyers have not shown much interest in the example of lawyers from Taiwan, notwithstanding the accessibility provided through a common language and the readiness of the PRC in many other areas of endeavour to utilize cross-Straits models.

68. Amsden, Alice, Asia's Next Giant: South Korea and Late Industrialization (New York: Oxford University Press, 1989).Google Scholar

69. See, for example, Osiel, “Lawyers as monopolists, aristocrats and entrepreneurs.”

70. Conceivably, Chinese lawyers seeking examples of independence might look in their distant past to scholar-officials willing to speak the truth at all costs such as Chu Yuan and in more recent times to crusading journalists such as Liu Binyan. I discuss the significance of the symbolism of Chu Yuan in a modern legal context in Alford, “Doubleedged swords cut both ways.” For more regarding Liu Binyan, see Binyan, Liu, A Higher Kind of Loyalty: A Memoir by China's Foremost Journalist, trans. Zhu, Hong (New York: Pantheon Books, 1990)Google Scholar. I am indebted to James Feinerman for pointing out to me the pertinence of Liu Binyan in this context.