By Stanley Lubman, The Wall Street Journal, China Real Time Report
There is a relatively small number of activist Chinese lawyers (commonly referred to as “rights protectors”) who specialize in representing Chinese citizens whose rights are violated by government agencies. (For a useful analysis of China’s “rights protectors,” see this paper by Fu Hualing and Richard Cullen in The China Journal). Some of them have received much publicity because they are often known to suffer severely and brutally at the hands of police and government authorities. But what about the rest of the country’s 200,000 lawyers?
New research that suggests that some “ordinary” lawyers (as one recent scholarly study calls them) do indeed act to vindicate the rights of their clients, even if they are not celebrated in the foreign press, and in ways that may even be more effective than their more high-profile colleagues.
In a recent blog post on non-activist lawyers, Oxford doctoral candidate John Givens estimates based a 2007 survey that around 60% of Chinese lawyers have represented defendants in criminal cases, and that another 25% have helped citizens to sue the state in matters such as forced evictions, expropriation of land and police misconduct. After interviewing 150 Chinese lawyers in 2010-2011 and coming away impressed with their accomplishments, Givens contends that the low profile of these lawyers “who stay out of the headlines” may make them even more effective than the rights lawyers “and their far greater numbers means that their overall impact may be much more substantial.”
In a more substantial scholarly article on the work of “ordinary” lawyers to be published in the Law and Society Review, Sida Liu of the University of Wisconsin-Madison and the American Bar Foundation’s Terence Halliday also find that, without the benefit of headlines, some are working in their everyday practice to improve Chinese legality.
Liu and Givens argue that lawyers’ “everyday politics” has “two faces”: One is “political liberalism,” which sometimes motivates them to challenge of the exercise of state power in order to protect citizens’ rights and help citizens enforce requirements of procedural justice. The other approach is to “rely on political connections with state agencies to protect themselves as well as their clients and solve legal problems.” These lawyers, Liu and Halliday write, are “politically embedded,” meaning they either have experience in the legal system or have strong ties with people inside it.
The authors interviewed 82 lawyers and other legal professionals during four trips to China in 2005-2010 , and they also trained a group of law students, who conducted an additional 112 interviews in 2009. They classify lawyers in five groups:
• “Progressive elites”- leading criminal defense lawyers who seek to promote political change;
• “Pragmatic brokers”-lawyers who use their embededness in the legal system to pursue economic gains;
• “Notable activists”-criminal defense lawyers who seek out politically sensitive cases;
• “Grassroots activists”-ordinary lawyers with political values who use their everyday defense work to promote procedural justice , and:
• “Ordinary lawyers”
They find that the “progressive elites” and “pragmatic brokers” who are “embedded” in the legal system have less trouble than “non-embedded” lawyers when they encounter common problems in the criminal justice system: difficulty arranging to meet suspects, collecting evidence, accessing case files and persuading judges. If they have been part of the system and maintain close ties to it, they can sometimes adopt an “inside strategy” to attain restraints on arbitrary state power. The authors find, too, that earlier careers in the criminal justice system help protect lawyers against retaliation and persecution.
More than three-quarters of the respondents did criminal defense work for economic reasons. Few lawyers among those respondents were politically motivated. Also, notably, the “grassroots activists” did not seek to confront the Party-state and the legal system but rather wanted “to reform the justice system through everyday defense work, by incrementally improving the work of the police, procuracy and court and spreading the ideas of the rule of law.” The authors emphasize that “politically embedded” lawyers are more committed to working inside the system, as compared to some of the “rights protectors.”
Given the size of the legal profession, the samples on which Givens, Liu and Halliday rely are small. Hopefully, Givens’ future research may tell more about the motivations and experiences of lawyers he interviewed. Readers of Liu and Halliday’s article, meanwhile, will likely want to know more about the varieties of experience and conduct that serve to make a lawyer “embedded” enough to make him or her successful in protecting criminal defendants and procedural justice. Certainly there is an overlap between the less confrontational “rights protectors” and the “grassroots activists” identified by Liu and Halliday.
The research also raises interesting questions about the professionalization of Chinese lawyers. Increasing realization among lawyers of the need to oppose the arbitrary enforcement of laws by agencies of the state suggests they are becoming more professional. But the “embededness” that the lawyers can sometimes use to assist their clients depends on the use of what is known in China as “relationships ” (guanxi), a practice that suggests the possibility of corruption. Does embededness undercut proceduralism and the regularity of law? Or might the personal relationships that facilitate lenient treatment of a Chinese defendant differ little from those between experienced prosecutors and well-known, experienced and respected veteran criminal defense lawyers engaged in plea bargaining in the US?
The research discussed here is provocative, because it raises the possibility that the ability of the legal profession to act more directly to restrain illegality by the agents of the Party-state may grow, even if slowly. Hopefully, the authors will continue on the path they have investigated here and will be joined by others, Chinese and Western.