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...change, clinical legal education has begun to take root in Chinese law schools. This Note from the Field explores the potential for clinical legal education to motivate students and scholars in China to push the boundaries of law, making it a tool of social justice for the average Chinese citizen. Drawing on her experiences as a clinical instructor in Chinese law schools, Pamela Phan argues that the American model of clinical legal education and its "social justice" tradition can play a significant role in the development of Chinese legal education, in turn strengthening legal culture and reform in China.
I. INTRODUCTION
The city of Wuhan lies along the Yangtze River, in the heart of central China. (1) Once as prosperous a trading port as Shanghai, and still one of China's largest cities, its development has been neglected in the central government's rush to expand and cultivate the coastal regions. Now a city of second-rate status, Wuhan continues to struggle with the tensions and gaps between rich and poor, which pervade its social fabric and lead to more frequent clashes on its city streets than in its courtrooms.
I confronted this reality for the first time as I observed a client interview in progress at Wuhan University's Shehui Ruozhe Quanli Baohu Zhongxin (the Center for Protection of Rights of Disadvantaged Citizens, or "Wuhan Center") (2) during the spring semester of 2004. Two female students from the legal clinic at Wuhan University (Wuda) were conducting an initial client interview. They sat in the casual clothing of today's Chinese youth, part of a new generation of "only children" (3) regarded by their own society as sheltered and spoiled. A group of five older Wuhan natives (only one of whom was female) huddled around them, speaking in animated, heavily accented tones at times incomprehensible to the students.
The clients' hands and faces were deeply tanned, coarse, and etched with lines. They had come from a specially designated development zone on the outskirts of the city (4) and wanted to see if it was possible to sue the local land and construction bureau over a property dispute. Despite receiving notice of the impending demolition over a year before their arrival as clients at the Wuhan Center, they were never afforded the opportunity to agree to or even negotiate compensation and relocation terms before the agency authorized removal of their homes by force and demolition. (5)
As the case proceeded, the students complained frequently about the daily calls that the clients made to their cell phones, the hours that they spent online and at the Wuhan Center researching (sometimes fruitlessly) the statutes that might be relevant to their case, and the difficulties of formulating arguments that would be effective in court. The clients also complained--about the inability of the students to understand their goals and the ineffectiveness of the law in resolving their problems.
As China opens up and turns increasingly outward during the new millennium, it is under an almost microscopic scrutiny. In its Olympic bid to bring the world to its doorstep by 2008, the nation has attracted the eyes and ears of economic and political rivals worldwide. A by-product of China's desire to emerge as a significant player in today's new international world order has been mounting pressure from other countries--including the United States--to conform to the standards of the international community. This pressure includes continuing calls for an overhaul of China's existing legal institutions, to ensure China's smooth transition into the community of nations that promote the rule of law.
As a result of these pressures, there has been a loosening of controls on at least two fronts, making possible the work that I do in China as well as the writing of this Article. (6) More and more American lawyers are now entering Chinese soil, Chinese classrooms, and even Chinese courtrooms, ready and eager to bring innovative methodologies to the teaching and training of a new generation of Chinese lawyers, procurators, (7) and judges. At the same time, the gradual growth of nongovernmental organizations ("NGOs") has allowed for ordinary citizens to venture into social spheres that until now were dominated by organs of the state.
By 1999, such developments created an opening for the introduction of clinical education in China at the law school level. (8) This effort has been motivated by a strong desire to change how students learn and think about the law, aiming to expose them to legal aid work and to give them the tools with which to apply theories learned in the traditional classroom to everyday realities. (9) Clinical legal education has also provided a battleground for some of China's most socially conscious scholars to examine and advance the quest of the nation's poor and disadvantaged, working alongside students to strengthen the power of law as a tool of the average citizen.
This Article focuses on the appropriateness of this type of "social justice" discourse, so similar to the discourse that dominated the United States during the 1960s, in discussions regarding the reform of Chinese legal education. Part II of this Article argues that there is a crucial place for the American model of clinical legal education in the development of law and the legal profession in China, and in the folds of China's educational system. After examining the meaning of "social justice" and the pedagogical aims of "justice-oriented" clinics, this Article moves on in Part III to contemplate how these clinical ideals might be articulated to establish a culture of law in China.
Part IV of this Article focuses concretely on the development of Chinese clinical models and methodologies, illuminating what these models try to achieve and what type of legal professionals they endeavor to train. This part provides support for the argument that law school clinics are a legitimate and important forum for teaching and effecting social justice in China. While Part V recognizes and confronts the difficulties of using the reform of legal education to reform society at large, it nonetheless concludes that in China, reform of the legal education system is a preliminary and necessary step towards legal reform generally.
II. RE-CONCEPTUALIZING THE ROLE OF THE LAW AND CHINESE LEGAL EDUCATION
A. China in the Shadow of Its Own Past
The push of historical forces and pull of modernization have done much to open the door, in just the past five years, to the development of a clinical legal education model in China. In part, this has resulted from the Chinese leadership's unprecedented focus on the training of more competent legal professionals, (10) capable of responding to the needs of the average Chinese citizen. The leadership has sought to establish minimum standards to govern both the judiciary and the legal profession (11) in order to instill in the public some faith in the ability of the legal system to address their concerns. (12)
For thousands of years, the Chinese lived not under the rule of law but under the rule of man--"in particular, one man, the Emperor, whose word and whim were law." (13) In a feudalistic Chinese society under the rule of emperors and warlords, traditional teachings placed a high premium on the supremacy of the sovereign's and state's interests, at the expense of the individual's interests. (14) The legal system that developed under the Chinese Communist Party ("CCP", or the "Party") continued to emphasize the societal over the jural model of law, upholding law as a sword of the state rather than as a scale for balancing personal safeguards against the social order. (15) Despite initial calls for the independent exercise of judicial power, "subject only to law," (16) the development of China's legal system suffered major setbacks well into the Party's rise to dominance. (17)
After the decade of chaos under the Cultural Revolution (Zhongguo Wenhua Da Geming), which dismantled nearly all of the legal infrastructure in China, (18) the tide began to turn in 1978. With Deng Xiaoping and his "Four Modernizations" program at the helm of the Party, the "rule of law" made its way back into Chinese discourse as part of an overall plan to undo the wrongs of the past two decades and win back popular confidence (19) (as well as to "check against future social upheavals"). (20) In addition to reinstalling the nation's legal infrastructure, officially reopening law schools, and reinstating the Ministry of Justice ("MOJ") in 1979, (21) the Party established a 1978 Constitution, (22) among other laws, to lay the legal foundation for the formal rehabilitation of lawyers as a professional group. (23)
With rapid economic and social reform at the forefront of domestic policy, Deng and successive Party leaders have taken note of how indispensable a well-established legal system is to modernization efforts in China. (24) Expressing concern over the severe shortage of formally trained lawyers, the Chinese leadership increased funding for legal education in the new millennium in order to provide for more lawyers. (25) As a result of these efforts, the People's Daily (Renmin Ribao) reported last year that China now has 102,000 lawyers servicing its population of roughly 1.3 billion people, a forty-fold increase over just twenty-five years. (26) As early as August 1980, the government moved to establish uniform standards for this burgeoning new profession, promulgating the Interim Regulations on Lawyers ("Interim Regulations"). (27)
Despite these attempts to reconstruct the Chinese legal system, government policies nonetheless remain reminiscent of efforts throughout China's history, dating as far back as the imperial era, to emphasize virtue, de-emphasize law, and reconcile the interests of the individual in a way that is harmonious with those of the state. (28) Even under the Interim Regulations, the government characterized lawyers as mere "legal workers of the state," (29) employed in state-owned law advisory offices reliant upon the state for financial support. (30) It identified a lawyer's mission as:
provid[ing] legal assistance to government organs, work units, social groups, people's communes, and citizens in order to ensure the correct implementation of the law, protect the interests of the state and collective and the legal rights and interests of citizens. (31)
Professor Chen Duanhong of Peking University ("Beida") is thus justified in arguing that Confucianism and communist ideology have overwhelmed the rule of law. Even as the nation struggles "to demonstrate to the world that it now has a legal system consistent with international legal standards," (32) long-honored feudalistic norms continue to haunt the Chinese and exert a strong influence over modern China's vision for law and the legal profession. (33) China's leaders are under great pressure to redefine and respect the "rule of law" in a way that does not merely perpetuate the unassailable nature of past regimes. (34) Chen has thus urged that the legal academy (35) should step in to offer additional assistance in the development and advancement of the rule of law in China. (36)
Resistance to a re-conceptualization of the role of the legal system has created a crisis of governance in China, (37) which has led some top officials to declare recently that "the 'life and death of the [P]arty' rests on 'improving governance.'" (38) To lay a solid foundation for the building of China's future, Party leaders are well-advised to follow the blueprint established by Professor John M. Burman at the University of Wyoming, who counseled (in relation to Russia) that:
First, [a country ruled by law] must have sound laws. Second, [it] must have an independent judiciary, which is allowed to interpret and enforce those laws. Third, [the country's] lawyers must become something more than fighters for communism, or any other '-ism.' They must become skilled professionals who are respected by the judiciary, their clients, and society, in general. Fourth, and most difficult, a culture of law must take root and grow in [the country]. (39)
Under such rules, the leadership must establish and submit to a sound system of laws, within a sound legal culture, if China is to be the "rule of law" country it aspires to be.
Perhaps the most fundamental precondition to establishing the rule of law is Professor Burman's concept of a "culture of law." A culture of law can be said to exist where ordinary citizens are able to trust in the law, appealing to legal means for resolving their grievances. Without such widespread legal consciousness, any efforts to develop a sound system of laws will ultimately fail and laws that exist on the nation's books will remain no more than empty words, both in their application and in the way they are regarded by the public. Absent a culture of law, the rule of law may be able to take hold in theory, but will suffer a crisis of legitimacy in practice.
B. The Rise of a Chinese Clinical Model
China's current crisis in governance was readily apparent in the clinic case that I observed. One of the greatest challenges that the students faced was learning how to explain to their clients the significance of the law and proceeding according to law, in an environment and system in which those affected have lost faith in the safeguards supposedly provided by law. (40) In past years, as the emphasis on lawyers serving society has increasingly focused on the provision of legal services to China's poor and disadvantaged, the remarkably swift growth of "legal aid" (falu yuanzhu) (41) has shifted a significant portion of this burden to law schools with clinical programs.
The urgency of fulfilling the nation's legal aid needs is very real. In 1996, the central government promulgated a Law on Lawyers (42) to substitute for the previous Interim Regulations, for the first time defining lawyers as those "providing legal services to the public," rather than just "state legal workers." (43) This new law imposes on lawyers a mandatory obligation to engage in legal aid. (44) The government subsequently authorized, in December 1996, the establishment of a Legal Aid Center operated by the MOJ and charged with overseeing legal aid programs. (45) In 2003 alone, China's leadership invested 150 million yuan (roughly $18.14 million U.S.) in the provision of legal aid services, but Legal Aid Center Director Deng Jiaming continues to report that this is merely one-fifth of the amount needed. (46)
With state resources thus stretched, a gap has been created for the entry of clinical legal education into the Chinese law school curriculum. The clinical model poses a tremendous challenge to students schooled in a tradition of learning that leaves them ill-equipped to handle legal aid cases. At the heart of the provision of legal aid services lies the practice of poverty law. A poverty law practice requires students who are typically from wealthier classes and bigger cities to understand and work closely with clients who may be far removed from such centers of privilege. However, because Chinese legal education typically begins at the undergraduate level, (47) these students often lack prior exposure to the types of labor, property, or marital disputes that they must now help to resolve.
Moreover, the traditional education that Chinese students of law receive consists mostly of large lecture courses "devoted chiefly to the exposition of statutes and related expressions of legal doctrine." (48) Students and faculty have few opportunities to engage one another interactively, (49) and thus, students lack opportunities to question or think critically about what they are learning. Reports and studies on legal education in China have criticized the traditional emphasis placed on memorization of black-letter law over critical reasoning and the ability to analyze and solve problems, (50) holding it "akin to technology transfer, the point of which was to impart as much information as possible in as short a period as possible." (51)
To the extent that anything practical is incorporated into the law school curriculum, law school students are theoretically required to spend a two- or three-month externship (shixi) period in a judicial office or law firm. (52) The reality of this system is that by implementing it during the student's last semester of study (when fourth-year undergraduates are particularly anxious about their graduate theses and prospects for finding a job) and setting no clear standards for how the externships should be conducted, the two- or three-month shixi period often becomes a mere break for the students from their ordinarily frenzied class schedules. (53)
This traditional style of educating is in keeping not only with the nature of legal education in many other civil law jurisdictions, (54) but also with the nature of Chinese education in general. (55) However, it simplifies the practice of law in a way that leaves Chinese students believing in mastery of black-letter law as the most important lawyering skill. (56) Although the Law on Lawyers requires much more than mere mastery of black-letter law, authorizing the issuance of a practicing certificate only to those who have apprenticed with a law firm for over one year, (57) it is no surprise that judges continue to complain about the low quality of lawyers. (58)
Remarkably, it is possible to qualify as a lawyer in China without even a college education in law or a college education at all, and without passing the national bar examination. (59) Even those graduates who study at the very top law schools in China are reported to be "much less prepared to assume responsibilities as practicing lawyers than their counterparts from foreign legal systems." (60) Despite being an import from the American system, then, clinical legal education ultimately offers great promise for better preparing legal professionals who can more adequately handle the questions and difficulties brought about by China's development in the 21st century.
In September 2000, as part of a Ford Foundation initiative, (61) clinical legal education was launched in classrooms at seven different law schools located in Beijing, Wuhan, and Shanghai. (62) By 2002, the effort had spread to four additional campuses located in other parts of the nation, (63) and shortly thereafter the China Law Society gave its approval for the founding of a Committee of Chinese Clinical Legal Educators ("CCCLE"), a nonprofit academic body comprised of clinical legal educators from all over China. To date, formal membership in the CCCLE has expanded to include a total of thirteen institutions. (64)
CCCLE focuses on gaps in the traditional model of legal education to advocate for a more participatory, interactive (hudong) clinical model. Emphasizing the need to research "how to improve students' capacity to practice while they yet...
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