China's Legal Profession: The Nascence and Growing Pains of a Professionalized Legal Class


CHINA'S LEGAL PROFESSION:
THE NASCENCE AND GROWING PAINS

OF A PROFESSIONALIZED LEGAL
CLASS

WEIFANG HE*

I. INTRODUCTION ......................................................................... 138

II. BACKGROUND ........................................................................... 139

III. THE NASCENCE OF CHINA'S LEGAL PROFESSION ....... 143

A . SYSTEM C HOICE ........................................................................ 146
B. PROBLEMS OF QUANTITY ........................................................... 148
C. BETWEEN AUTONOMY AND OPENNESS ...................................... 149

IV. PROSPECTS AND CONCLUSION ........................................... 150

I. INTRODUCTION

Beginning in the late 1970s, the process of constructing the rule of
law in China has seen more than a quarter of a century of development.
During the transitional "Post-Mao Zedong" era, many factors have
influenced and guided China's progress towards the rule of law-for
example, still-viable socialist theories, the historical inertia of various
institutions built on these theories, the emerging market economy's need
for a unified, stable, and predictable legal system, the directional
uncertainties posed by the diversification of imported knowledge, and the
difficulties posed by a virtually static political system.

In this article, I wish to emphasize the difficulties in institutional
construction today caused by China's long and unique history. I focus
especially on the impact on dispute resolution of the lack of a professional
judicature and legal experts, as well as the effects of the inability of
adjudication to become a source from which jurisprudence can develop.
This is the backdrop of Chinese rule of law construction today. It is also
the backdrop of the discussion surrounding the construction of a modem
legal system and its attendant difficulties during the past century. In
analyzing these difficulties, I focus on issues in the field of legal

. Professor of Law, Peking University Faculty of Law.



NASCENCE OF A PROFESSIONALIZED LEGAL CLASS

education, as it is one of the most important factors in molding the legal
profession.

Part of the reason I wish to explore this topic is that a nationalist
tide has recently arisen once more, and some scholars have specifically
advocated reconstructing China's modern political-legal system using
Confucian political principles. Although it is not abnormal to have
cyclical anti-Western tides in some countries, the mainstream of Chinese
legal studies today, especially in specific areas of law such as civil,
criminal, and criminal procedure law, is still based upon Western
knowledge and theories. It is, however, necessary to reflect upon the
history of governance in China, not only because of its historical
significance, but also because doing so enhances our critical ability in this
age of intellectual "free trade." If this inquiry serves no other purpose, at
least we will not become "lost lawyers."

II. BACKGROUND

China's classical society, in spite of its long history, failed to
produce a legitimate and professionalized class of lawyers. Here, what
sets China completely apart from the West is its peculiar system of
selecting officials in traditional or classical society and the impact of this
system upon social structure, which resulted in an equally peculiar legal
process. For a millennium prior to the abolition of the civil service
examination in 1905, officials had been selected through examinations.
Although the Imperial Exams represented the traditional model of rule
with the knowledgeable ruling the ignorant, they did not promote the
diffusion of legal knowledge, but rather impeded it by holding to the
standards of Confucianism and poetic techniques. In the words of Max
Weber:

The Chinese examinations did not test any special skills,
as do our modern national and bureaucratic examination
regulations for jurists, medical doctors, or technicians.
Nor did the Chinese examinations test the possession of
charisma, as do the typical "trials" of magicians and
bachelor leagues .... The examinations of China tested
whether or not the candidate's mind was thoroughly
steeped in literature and whether or not he possessed the
ways of thought suitable to a cultured man and resulting
from cultivation in literature. These qualifications held

2005]



COLUMBIA JOURNAL OF ASIAN LAW

far more specifically with China than with the German
humanist gymnasium.'

Though people who succeeded in such examinations were involved in the
judgment and resolution of disputes, the officials' judicial activities did
not contribute to the growth and development of independent and
specialized Chinese legal knowledge due to the narrow focus of their
knowledge and background.2

The traditional Chinese legal concept was a direct result of a
judicial process dominated by laymen. County officials usually had
private secretaries to help them when deciding cases.3 However, their
training was, to a large degree, technical in nature. Therefore, secretaries
did not pay attention to the inherent logic of law, such as the rules by
which cases should be decided and the difference between legal and
moral reflections. At the same time, though secretaries played an
important role in deciding cases and making policy, they focused more on
helping their masters than the strict and precise application of legal
principles. They generally balanced all of the factors in a case, applying
the law when favorable to their masters and ignoring the law when not.
As Ch'ti T'ung-tsu ("Qu Tongzu" in pinyin) pointed out, "those secretaries
studied law only to help their masters to decide cases and they never
intended to study law systematically."4 In the middle of the Qing Dynasty,
legal secretaries were sarcastically said to be "saving the living not the
dead, saving the officials not the people, saving the important not the

MAX WEBER, THE RELIGION OF CHINA: CONFUCIANISM AND TAOISM 121 (Hans H. Gerth ed. &
trans., 1964) (examining the Chinese government, Weber found the number of officers was much
less than that of European governments and identified a relationship between the rough style of
ovemance and a small number of officers).
Inadequate budgeting for legal services contributes to China's failure to develop a professionalized

legal class. Ray Huang noted long-term stability and "low price" as two important characteristics of
the organization, legal system included, of traditional Chinese society. As Huang described:

The annual revenue of the government in the late Qing dynasty had never
exceeded 100 million silver ounces, a figure that is very insignificant
measured against either China's population or the general yardstick of the
world at the time. The crudity of organization together with the shallowness
of technology make it possible for such a big country to be based on a
petty-agrarian economy and to dispense with the need for lawyers and
professional judges, even though the population was in its hundreds of
millions, a situation that remained unchanged until the Opium War.

[.-4, JqiitC [ (n ,flM d [RAY HUANG, THE ROAD OF MODERN CHINA] 72-73 (1995).
3 See W-rlM, [ j. [QU TONGZU, SELECTED PAPERS IN LAW OF QU TONGZU 460

(lst ed. 1998) (describing the division of labor between county officials and their private
secretaries).
4Id. at 413.

[19:1



NASCENCE OF A PROFESSIONALIZED LEGAL CLASS

obscure, saving the old not the new.",5 In addition, these secretaries were
only assistants, and they were not responsible for any judicial decision-
making, so they were reluctant to fight for justice in deciding any
particular and isolated case.

In Western history, the independence of legal professionals as a
group originated from restricted access to the legal profession, which was
based on the pursuit of profits. The American jurist Richard Posner
considered legal development a side product of this profit-seeking cartel.
According to Posner, "professional ideology is a result of the way in
which the members of the profession work, the form and content of their
careers, the activities that constitute their daily rounds, in short the
economic and social structure of the profession.",6 Actually, while a body
of specialized knowledge is indispensable for a profession to attain wider
social resources,7 the way legal professionals work and the formality and
essence of their work are also important sources of legitimacy. Judges
apply strict legal procedures to cases and make decisions without
interference. Those decisions become unshakable once they obtain
procedural validity. Such principles are often taken for granted in the
West.

In contrast, judges in China were not lawyers and usually did not
specialize in law.8 When they dealt with disputes and cases, there was no
certainty of law. What they were applying was a combination of law,
moral requirements, and community customs. As sources of applicable
norms, these forces did not embody distinctive differences. When local
officials handled cases, it is unlikely that they would determine the norm
to apply based on a normative structure defined by a hierarchy of related
norms. At the same time, because of their background and knowledge,
judges relied on resources like Confucianism or historical works, which
had no legal ramifications, in order to support certain decisions.
Examined from today's point of view, the records of some of the "famous
trials" are more valuable as literary or rhetorical references than as legal
documents. 9 County magistrates made decisions based on case-specific

2H1, I 9ik. ia - Mi-IYi)ZZV [Ji Yun, Jottings from the Thatched Abode of Close
Observations - Part IV: Just Listen to Them], in [ r U ,/iL-, [GUO JIAN ET AL.,
GENERAL HISTORY OF CHINESE CULTURE: LAW] 327 (1998).
6 RICHARD A. POSNER, OVERCOMING LAW 35 (1995).71d. at 37.
8 Ch'u T'ung-tsu noted that due to the complexity of the law and the pressure of daily work, it was

difficult for county officials to conduct a specialized study of law, and so they had to rely on their
private secretaries. Yet he also pointed out that "it is a basic requirement for county officials to be
well-versed in law when they are involved in the administration of justice, for otherwise they will
not be able to render a judgment based on law." See QU, supra note 3, at 460.
9 See V , T -- [He Weifang,
The Style and Spirit of Traditional Chinese Judicial Decisions: Based Mainly on the Song Dynasty

2005]



COLUMBIA JOURNAL OF ASIAN LAW

facts. They did not decide cases on precedent or the continuity and
coherence of rules established in previous cases. A French scholar, Jean
Escarra, attributed this phenomenon to the inferior status of law in
China's value system, which he compared to that in the West:

The Peoples of Western civilisation have lived
throughout under the Graeco-Roman conception of law.
The Mediterranean spirit, while central to the patrimony
of the Latin peoples, has also inspired large parts of the
law of Islam, as also of the Anglo-Saxon, Germanic,
and even Slavonic nations. In the West the law has
always been revered as something more or less
sacrosanct, the queen of gods and men, imposing itself
on everyone like a categorical imperative, defining and
regulating, in an abstract way, the effects and conditions
of all forms of social activity. In the West there have
been tribunals the role of which has been not only to
apply the law, but often to interpret it in the light of
debates where all the contradictory interests are
presented and defended. In the West the juris-consults
have built, over centuries, a structure of analysis and
synthesis, a corpus of "doctrine" ceaselessly tending to
perfect and purify the technical elements of the systems
of positive law. But as one passes to the East, this
picture fades away. At the other end of Asia, China has
felt able to give to law and jurisprudence but an inferior
place in that powerful body of spiritual and moral
values which she created and for so long diffused over
so many neighbouring cultures . . . . Though not
without juridical institutions, she has been willing to
recognize only the natural order, and to exalt only the
rules of morality . . . . Few indeed have been the
commentators and theoreticians of law produced by the
Chinese nation, though a nation of scholars. 10

and Comparing With That of England], EP WR;N± ! [SOC. SCI. IN CHINA], Dec. 1990, at 203-19,
as translated in SOC. SCI. IN CHINA, Sept. 1991, at 74-95; also in 'R T -M, 3, 4 - t1 f [HE
WEIFANG, THE IDEA AND SYSTEM OF JUSTICE] 188 (1998).
to JEAN ESCARRA, LE DROIT CHINOIS; CONCEPTION ET IVOLUTION, INSTITUTIONS LEGISLATIVES ET
JUDICIAIRES, SCIENCE ET ENSEIGNEMENT 3 (Pdkin, lditions H. Vetch, Librairie du Recueil Sirey
1936), quoted in JOSEPH NEEDHAM, 2 SCIENCE AND CIVILISATION IN CHINA 521 (1956).

[19:1



NASCENCE OFA PROFESSIONALIZED LEGAL CLASS

III. THE NASCENCE OF CHINA'S LEGAL PROFESSION

Similar to the Japanese experience, the transformation of China's
traditional political and legal system was also achieved under pressure
from Western powers. With increasing Sino-Western communications and
corresponding legal disputes, Western dissatisfaction with the Chinese
legal system grew considerably. Thus, the Treaty of Nanking and the
Treaty of Humen signed after the Opium War not only demanded the
cession of Hong Kong, the opening of port cities, and payment of certain
treaty-mandated tariffs, but also explicitly provided that British citizens in
China were subject only to the laws and courts of Britain according to so-
called "consular jurisdiction." For the Chinese living in the regent years
of Dao Guang, this extra-territorial jurisdiction was not a matter of
concern; rather, in their view, "it was no more than a matter of letting the
barbarian rule the barbarian, which is supposed to be the most expedient
solution without a fuss."1  However, in the conflicts between Western
countries and China, the political concept of nation-state and sovereignty
spread to China. As a result, extra-territorial jurisdiction was perceived as
a stigma on the country and the Chinese people as a whole. After the
Boxer Rebellion, there emerged an increasingly strong movement calling
for Chinese legal reform according to Western standards, while at the
same time, extraterritorial jurisdiction became an exacerbating factor for
Sino-Western conflict as well as a protective regime for Western interests.
Thus, the Treaty of Commerce and Navigation of 1901 between China
and the United Kingdom declared:

II - _ , A dit4_ : *k=# [JIANG TINGFU, A HISTORY OF MODERN CHINA] 27 (1987); see
also R. Randle Edwards, Ch 'ing Legal Jurisdiction Over Foreigners, in ESSAYS ON CHINA'S
LEGAL TRADITION 222 (Jerome Cohen et al. eds., 1980); R , ,f, 4' I[i J{t4'_, I, [ZHAN HENGJU,
MODERN CHINESE LEGAL HISTORY] 93-95 (1973).

2005]



COLUMBIA JOURNAL OF ASIAN LAW

China deems it as greatly desirable to reform its body of
enacted laws and un-enacted case-laws so as to conform
with the various states (of the West). The United
Kingdom is ready to offer all possible assistance to
facilitate China in achieving this end, and agrees to
renounce the right to extra-territorial consular
jurisdiction once it is satisfied that China has reformed
with adequacy its body of enacted laws and un-enacted
case-laws, its trial procedures, and all other relevant
aspects. 12

It was only at this point that China officially initiated legal reform.
However, Chinese legal reform during this period had three

shortcomings. First, because the government was forced to reform, it was
hard to know whether government efforts were truly sincere.1 3 Second, as
the Qing dynasty was established by the Manchu people, a minority
nation within the Chinese population, long-existing conflicts between the
Han and Manchu crippled its progress. Lastly, and most important,
government officials emphasized short-term benefits rather than long-
term effects. Basic underlying conditions for judicial reform were
brushed aside, and consequently the newly-established legal system was
inconsistent with Chinese social reality.

Nevertheless, with the economic, political, and cultural influence
of the West, a new political and legal system was established. The role
played by the missionary schools and universities established by
Westerners cannot be overstated. 14 Likewise, domestic initiatives should
not be ignored. Even though the government was not as zealous as
certain extra-governmental advocates, more and more schools of law and
politics were established, including those in national universities. When
the Imperial civil service examination was abolished, Western legal
education was considered a close substitute and younger generations
found it particularly appealing. In addition, as foreigners swarmed into
China through port cities, there were more and more disputes between
Chinese and foreigners. To solve these disputes, a practical demand for
legal professionals was on the rise. As these demands accumulated,
judicial reform and a modern legal profession became inevitable.

12 Quoted in + h Mi,, t [ it2 -E. [YANG HONGLIE, HISTORY OF CHINA'S LEGAL

DEVELOPMENT] 872 (1930).
13 See Chuiz6 Ichiko, Political and Institutional Reform, 1901-1911, in 11 THE CAMBRIDGE
HISTORY OF CHINA 375, 413 (John K. Fairbank & Kwang-Ching Liu eds., 1978).
14 A most successful example is Soochow University Law School, established by American
missionaries in 1915. See Alison W. Conner, Training China's Early Modern Lawyers: Soochow
University Law School, 8 COLUM. J. ASIAN L. 1 (1994).

[19:1



NASCENCE OF A PROFESSIONALIZED LEGAL CLASS

The legal system continued to develop until Japan invaded China
in the mid-1930s. During China's war with Japan, there was no law in
Chinese society. In 1945, when World War II ended, civil war broke out
in China. While civil war ended in 1949 with the victory of Mao Zedong
and the Chinese Communist Party, social turmoil continued through the
first three decades of the People's Republic of China. According to
Marxism, law represents bourgeois interests and should be discarded.
With the rise of Marxism in China, political discourse replaced legal
discourse. In practice, law lost its autonomy and became the handmaiden
of politics. As legal instrumentalism climaxed, it degenerated into legal
anarchy. During the Cultural Revolution, law was completely eliminated
from China and replaced by a precarious balance between policy
considerations and the capricious will of rulers. This state of anarchy
lasted as long as ten years. It not only brought unprecedented economic
and humanitarian disaster, but also greatly undermined the legitimacy of
CCP rule.

As a reflection of the historical lesson of the Cultural Revolution
and in an effort to restructure the legitimacy of the rule of the CCP,
socialist democracy and rule of law were proposed in late 1970s. The
past twenty years have seen changes in the quality of legal education in
China. The number of law schools has jumped from five in 1978 to more
than 300 today. In 1978 there were only 600 law students in China.
Today, Peking University Law School has more than 2000 students. The
total number of law students (excluding law postgraduates) in 1998
reached 85,000, with an additional 29,000 students admitted that same
year.' 5 The progress in legal education is shown not only by the growth
in the number of students, but also by the diversity of law degrees
awarded. The majority of law students are undergraduate students, but in
some research-oriented universities students at the Masters and Ph.D.
levels outnumber undergraduates. Law has now become one of the most
popular majors in China and is finding greater appeal among more
qualified students.

The development of legal education has also improved the quality
of the legal profession. Twenty years ago, judges had little legal
education and could not be trusted with complex legal matters. 16

15 These numbers are drawn from data from the Center of Education Information, Ministry of
Education and Department for Legal Education, Ministry of Justice, in 9*?-l + MM m' t-
R 4 : M It , tL 1 A *f A I M k * -' RR N Im'-- [The Establishment of Uniformed Legal
Education in China: A Report on the Reform and Development of the Education Towards a
Master's Degree in Law], in + [DOCUMENTARY BOOK
ON THE J.M. PROGRAM EDUCATION IN CHINA] 375 (I & [He Weifang & Huo
Xiandan eds.], 2001).
16 According to data compiled by China's court system in 1980, only 3.6% of the 58,000 personnel

2005]



COLUMBIA JOURNAL OF ASIAN LAW

However, with a growing market economy and the rising social demand
for an independent judiciary, legal professionals are now better educated
than their predecessors.' 7 As one of the most important benchmarks, the
Standing Committee of China's National People's Congress revised the
Law on Judges and the Law on Procurators to introduce a unified national
bar exam. The first unified judicial exam was held in 2002 with 300,000
examinees and a 7% pass rate. Indeed, legal education is prospering, the
unified judicial exam is now established, and the demand for democracy
is rising. Considering all these social elements, we can see that Chinese
legal professionals are facing a historic opportunity. Can this generation
see the professionalization of lawyers in China? Clearly, as a developing
country in the age of globalization, China frequently faces a number of
contradictions that effect the development of the legal profession. For
instance, the lack of a professional legal tradition in China weakens the
development of legal ethical rules essential to a healthy legal profession.
Therefore, China will continue to face a hastening crisis in the process of
professionalization while, at the same time, undergoing the belated
nascence of a professionalized legal class.

IV. CHALLENGES

A. System Choice

China borrowed its method of professional legal education from
Western countries. Specifically, influenced by a desire to abolish extra-
territorial jurisdiction, mitigate the influence of Japan, and avoid the
difficulty of transplanting common law, China has adopted the European
Continental model. As the Chinese legal system followed the Continental
pattern, so did its style of legal education.' 8

Like other countries that follow the Continental legal style, China
also focuses its legal education on statutes as opposed to case law

surveyed within China's court system graduated -from university affiliated law schools or law
departments. See i'RAR4, N*MVl:: [TANG NENGSONG ET AL., A
CONCISE HISTORY OF CHINESE LEGAL EDUCATION] 410 (1995).
I
7 19._) , Al± V fi E±ZX: Xff 1 'N 8 0WI 'i - [He Weifang, The Realization of

Social Justice Through Judicature: A Look at the Current Situation of Chinese Judges], in -[ mJ
I f it: + C I;{MIJ RKif [TOWARD A TIME OF RIGHTS: A STUDY OF CIVIL RIGHTS

DEVELOPMENT IN CHINA] 179, 179-250 (9-[( [Xia Yong ed.], 2000); STANLEY B. LUBMAN,
BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO 253 (1999).
18 Since the 1940s, the diverse educational background of China's leading lawyers has caused
confusion about the model of China's legal education and legal system. See Roscoe Pound, "mt

-ft,*--M-514 [First Report on Legal Education], in [ [ESSAYS ON LEGAL
EDUCATION IN CHINA] 298 ( [He Weifang ed.], 1997).

[19:1



NASCENCE OFA PROFESSIONALIZED LEGAL CLASS

precedent. Moreover, the goals of Chinese legal education, the course
design, and the Chinese pedagogic method are similar to those of
Continental law. After an almost thirty-year interruption (1949-1978),
China's legal system again pays homage to the Continental style. Even
though some articles of China's Constitution are colored by socialist
ideology, China's civil law, criminal law, and procedural codes clearly
reflect a Continental influence. For example, the ongoing codification of
China's civil code demonstrates China's reception of Continental methods.
Further, legal education has returned to the Continental pattern as well.
Legal education in China differs from that in America: whereas American
law schools admit only college graduates, Chinese law students attend
law school directly after high school graduation. In China, the goal of
legal education is to train professionals not only for legal practice, but
also for enterprise, corporate work, and government service. In addition,
lecture, rather than Socratic method, is the preferred teaching method in
Chinese law schools.

Nevertheless, Continental methods have been influenced by
Anglo-American elements. The newly amended civil and criminal
procedure laws both adopt the adversary system into Chinese legal
practice. The Continental system has not only lost battles on the fields of
procedural law, but it has also lost influence in substantive law as well. It
seems that Anglo-American law is continually making inroads in Chinese
legal development. The pursuit of comprehensive codification, an
important tradition of Continental law, has recently been cast into doubt
in China. Professor Jiang Ping, the former president of the China
University of Political Science and Law, has suggested that "China should
enact a civil code with an open spirit. The effective and efficient
American legal system should be introduced into the design of property
rule and contract rule of the to-be-enacted civil code." 19 As the Chinese
legal system balances between the Continental pattern and the Anglo-
American pattern, legal education inevitably sways between them as well.
With more and more American legal rules and doctrines penetrating the
Chinese legal system, Chinese legal education has moved closer to the
Anglo-American style.

Another reason for the great influence of American law on
Chinese legal education is language. As the most widely used language
in the world, English is the first foreign language for the majority of
Chinese law students. Language is not only a tool, but also a way of
thinking. As a matter of path dependency, students are more likely to read

'9 See generally UT, $ITKlAWL m , [JIANG PING, SEVERAL THOUGHTS ON THE

ENACTMENT OF THE CIVIL CODE], available at http://law-thinker.com/show.asp?id=1010 (last

visited Apr. 6, 2006).

2005]



COLUMBIA JOURNAL OF ASIAN LAW

an original legal treatise in English than in any other foreign language.
As a result, there is a tendency for Chinese law students to think like
common law lawyers.

Considering these influences, the suggestion of modeling Chinese
legal education on the American model is not altogether surprising. z In
fact, this suggestion was turned into reality in 1995 when the Department
of Legal Education under the Ministry of Justice designed a J.M. program
independent of undergraduate and graduate law degrees. In the same year,
this proposal was adopted and eight universities were granted the right to
recruit J.M. students. The debate over this program has not ceased in the
past eight years. 21 Lacking clear differences from other programs of
formal legal education, the J.M. program has been criticized from its
inception. The compromise of two legal education methods resulted in
chaos to China's legal education system. The debate will not end until
one method is chosen over the other.

B. Problems of Quantity

The expansion of law schools and the dramatic increase in
number of law students marks an unusual development for legal
education in China. This phenomenon reflects an increasing social
demand for law students. However, it also reflects the questionable
quality of Chinese legal education. First, thanks to the weak and
confusing administration of the Ministry of Education, it is very easy to
establish a new law department in Chinese educational institutions
without any strict requirements for faculty and basic facilities. Moreover,
because China's legal profession was separated from its legal education, it
exerts no substantial pressure on legal academia, thus accentuating the
lacking quality of Chinese law schools. Second, the explosion in the
quantity of law students has diluted the quality of legal education and
justice on a per-student basis, consequently undermining China's judicial
reputation. Third, the number of Chinese law students has grown to such
an extent that the government has had to implement regulations to restrain
the growth.2

20 The current legal education regime seems relatively undesirable not only in China, but also in

Japan and South Korea. In recent years, the introduction of the American model of legal education
has been a popular topic among scholars from East Asian countries at some of the conferences in
which I have participated.
21 , + [fl JD? - [Wang Jian, A ..D. Program in China? A Critique

of Education Towards a Master's Degree in Law], in et q[] WfZ_ [ESSAYS ON LEGAL
EDUCATION IN CHINA] 83 ('I-A [He Weifang ed.], 1997).
22 See thrAVC, VAM C [YANG YINHANG, COLLECTED ESSAYS OF YANG YINHANG] 806-07
(1993).

[19:1



NASCENCE OF A PROFESSIONALIZED LEGAL CLASS

There is no precise standard for how many lawyers a society
needs. Among the G-8 nations, America has the highest percentage of
lawyers, while Japan claims the lowest. Different statistical methods,
divergent attitudes towards alternative dispute resolution, and diversity of
legal cultures may explain the differences within the population of every
country.23 Nevertheless, China has far too many law students. The crisis
of Chinese legal education is evident in the drastic expansion of the
number of Chinese law schools. We can contrast this with Western legal
history's general successes. By setting the number of lawyers, regulating
their services, and capping their fees, the lawyers' guilds of the European
Middle Ages played an important role in regulating the quality of legal

24services. In comparison, China's current dilemma stems from two root
causes: the uncontrolled explosion of Chinese legal academia and the
Chinese legal profession's negligible influence on legal education.

C. Between Autonomy and Openness

China's legal community must pursue two important traits. On
the one hand, law must attain autonomy; on the other hand, it must keep
the door open to other academic disciplines and social sciences.
Autonomy means the construction of an independent conceptual system
of legal knowledge. According to Tocqueville, law is a professional
discipline, and therefore not easily instilled in the greater, non-lawyer
population.25 Law has its own historical tradition, knowledge, genealogy,
and methodology. The unique interpretative power of law lies in its
autonomy, and law's specialized nature distinguishes it from politics and
morality. In the past twenty years, Chinese legal scholars have touched
on this specialized knowledge, and Chinese translations of foreign legal
treatises have been more numerous than ever. However, there are few
conscious Chinese efforts towards systematic construction. Thus, the
Chinese legal community must work towards legal autonomy.

Similarly, legal history shows that law has never been a self-
sufficient discipline and has benefited greatly from other disciplines.
Therefore, openness is essential to Chinese legal development. Social
sciences and various other disciplines have played a significant role in
advancing legal academics. Recently, anthropology, economics, and
literary criticism have greatly enriched various fields of legal study.
Further, law is intertwined not only with academic theory, but also with
the world at large. Legal practice is ultimately meant to solve specific

23 HENRY WALTER EHRMANN, COMPARATIVE LEGAL CuLTUREs 55-79 (1976).
24 See POSNER, supra note 6, at 39.
25 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 264 (George Lawrence trans., 1988).

2005]



COLUMBIA JOURNAL OF ASIAN LAW

disputes in our daily life. This means that the law must be open to the
real world. At present, Chinese society is undergoing a historic
transformation. The pursuit of market economics, the increasing demand
for democratic politics, and the incremental separation of nation and
society have reshaped China's social structure and methods of political
control. As a modem mode of governance, law continues to gain
heightened legitimacy. Given such social conditions, it is important for
legal academics to respond effectively and efficiently to the challenge of a
transforming society. The long-existing separation between legal
academia and practice has heretofore prevented China's legal practice
from instilling growth in legal theory, while the Chinese legal academic
community is unable to further practical legal causes. The Chinese legal
community as a whole must work towards bridging the gap between these
currently distinct disciplines.

The Western experience has seen law evolve from a dependent
and derivative period to an era of independence and autonomy.
According to Selzinick and Nonet, as repressive law turned into
autonomous law, law has become an increasingly self-centered discipline
because it has become too autonomous and is not able to respond to
progressing social challenges.26 Selzinick and Nonet advocate a new
legal order: responsive law. Postmodern legal theory is held in high
regard by certain Chinese legal scholars. Because of its deconstructive
nature, its openness to other disciplines, and its challenge to the existing
social structure, it is widely popular among law students as well.
Postmodern legal theory offers a distinctive perspective. However, as
China is still in the process of establishing a fair and effective judicial
system, postmodern legal theory is too radical a prescription for China's
current legal maladies.

IV. PROSPECTS AND CONCLUSION

The above is a discussion of a few issues in Chinese legal
education and the Chinese legal profession as a whole. I have
deliberately ignored the issue of obstacles posed by China's current
political system. It is, of course, a big problem. But from the standpoint
of present-day circumstances, and especially from the standpoint of a
legal scholar, its importance is diminishing. In fact, rule of law has
become a major source of legitimacy for China's current government.
The popularity of power discourse in China attests to this fact. A major
part of this article has been devoted to a discussion of Chinese history

26 See generally PHILLIPPE NONET ET AL., LAW AND SOCIETY IN TRANSITION: TOWARD

RESPONSIVE LAW (1978).

[19:1



NASCENCE OF A PROFESSIONALIZED LEGAL CLASS

because, if one wants to build the rule of law and establish a democratic
system in China which, of all large countries has, the longest history of
governance without the rule of law, time is, in addition to human effort,
an important element. In his book Bird in a Cage,27 Stanley Lubman
undertook the task of attempting to understand China through Chinese
law; by the same token, we must of course observe and assess trends in
Chinese legal institutions through understanding and studying Chinese
society. We must not overlook the fact that Chinese legal professionals
have received an education in imported knowledge, and consequently
apply this knowledge to create a new type of social relationship. From a
long-term perspective, rule of law is the only way for China's ancient
civilization to escape the historical cycle of order and chaos. More and
more Chinese citizens recognize this. For this reason, legal professionals
should not be pessimistic even in the face of unpredictable variables. Let
me conclude with a saying praised by Confucius, even though it has a
strong "rule-of-man" flavor: "Only if the right sort of people had charge
of a country for a hundred years would it become really possible to stop
cruelty and do away with slaughter."2 8

27 See generally LUBMAN, supra note 17.
28 THE ANALECTS OF CONFUCIUS 174 (Arthur Waley trans., 1st Vintage Books ed. 1989).

2005]