Sleeping with Dragons? Politically Embedded Lawyers Suing the Chinese State

Abstract

Over the past two decades, lawyers have sued the Chinese state in hundreds of thousands of cases. Yet, because the literature has focused on a small minority of well-know lawyers and activists described as rights defenders (weiquan 维权), we know almost nothing about the tens of thousands of lawyers that take these cases.

Using administrative litigation as a lens, this paper presents a much more representative picture of the legal profession and the boarder politico-legal establishment. Based on 126 interviews with lawyers at randomly selected firms throughout China; I show that it is not motivation or ideology that distinguish administrative litigators, but rather their experience and connections. Close ties to the state tend to make these litigators more moderate than prominent rights defenders, but they are probably more effective and certainly more numerous. They are establishment players trying to force incremental change from inside a still profoundly authoritarian system. Further, their challenge to that system is often diluted because they may also represent the state in court. Nevertheless, politically embedded lawyers are committed to and in many ways the best hope for rule of law in China.

Additionally, I show that a minority of administrative cases are reluctantly taken on by lawyers because of pre-existing relationships with or sympathy for a client. While most will do little more than an occasional administrative case, I suggest that these reluctant administrative litigators have been and will continue to be the most likely source of future radical rights defenders. Finally, I propose that the literature on cause lawyering in other contexts can learn from this approach to the Chinese case. Instead of coming up with a preconceived notion of who cause lawyers are, a better and more empirically driven approach is to identify the kinds of cases we are interested in and then try to figure out which lawyers are taking them.

Keywords: Cause Lawyers, Rights Defenders, Rights Protectors, Weiquan, China, Legal Profession, Human Rights Lawyers, Public Interest Lawyers, Administrative Law, Administrative Litigation, Authoritarian Regimes, Legal Development

JEL Classification: K00, K41, K49, P30