Searching for Political Liberalism in all the Wrong Places: The Legal Profession in China as the Leading Edge of Political Reform?
La Trobe University - Faculty of Law and Management; Oxford University - Centre for Socio-Legal Studies
September 8, 2008
La Trobe Law School Legal Studies Research Paper No. 2008/7
A central concern of scholarship on the legal profession and international donor agencies promoting rule of law in China is the bar's role as a force for political reforms, and in particular the fostering of political liberalism, the promotion of democracy and the protection of human rights.
Part I argues that there is general agreement in the legal profession, and among other actors in the legal complex and society more generally, in the value of rule of law broadly understood. However, the driving force for legal reforms is not political liberalism. The development of legal profession and the legal complex is very much a story of modernization and economic growth. But even given the general consensus regarding the value of rule of law, conflicts within the legal profession and between the legal profession and other legal-political system actors complicate the process of translating the broad principles and abstract ideals of rule of law into feasible reforms. These conflicts are intensifying as China enters into the critical middle-income stage, a stage where the reform process stagnates in many developing countries.
Part II argues that in addition to weak support for liberal democracy, a variety of other factors limit the ability of the legal profession to advance political liberalism. Most notably, China is following an East Asian model of development that greatly restricts opportunities for lawyers to engage in "political lawyering."
Part III suggests that, contrary to the cautious optimism of some commentators, the criminal defense bar is not likely to emerge as the leading edge of political reform in China for a host of reasons, the most important of which is a public intolerant of the rapidly escalating crimes rates that inevitably have resulted, and will continue to result, from the transition to a market-economy, urbanization and the generation of greater wealth combined with high levels of inequality.
Part IV argues that while there is somewhat more political space for "cause-lawyering" in socio-economic cases than for political-lawyering in civil and political rights cases, the efficacy of cause-lawyering is limited by various factors, most notably the lack of resources and weak institutions, as is typical in lower-middle income countries.
Part V concludes that while we ought not expect the legal profession to be the leading edge of political liberalism, or even to play a significant role in the short term, we ought not be too despondent either. Several East Asian countries have overcome or outgrown similar problems. They have established legal systems that are generally rule of law compliant and protect human rights reasonably well, even if several continue to be non-democratic or somewhat dysfunctional democracies, and even if they remain less liberal than their economically advanced western counterparts. Moreover, small marginalized factions within the legal profession have managed to play a key role in political reforms in these countries, and in some cases have even managed to change the nature and political orientation of the legal profession and legal complex.
Number of Pages in PDF File: 21
Date posted: September 8, 2008