Organizer: Jane K. Winn, Southern Methodist University
Chair: Wejen Chang, Academia Sinica
Discussant: Melissa Macauley, Northwestern University
In the PRC, Taiwan and Hong Kong, the practice of law is being radically transformed, and the resulting redefinition of the role of lawyers in each of these societies has implications that reach far beyond the motives and activities of legal practitioners. The characteristics of this reconstituted profession may play an important role in shaping the political economy of Greater China: the prospects for liberalization, democratization, and integration into the global economy could be enhanced by an expanded, autonomous legal profession.
This panel will first put the current developments in the practice of law in Greater China into historical and sociological perspective, and then look forward to ask questions such as whether lawyers in China are likely to promote greater social equity, or merely to facilitate the greater penetration market forces into Chinese society. The papers in this panel will raise issues related to professionalization and the search for appropriate foreign models of law practice; the relationship between the practicing bar and state sponsored initiatives to implement economic liberalization through law reform; the ability of the legal profession to mediate between global arenas and local constituencies; and any correlation between the practice of law and democratization. Among the competing Western models that have influenced China's modern legal profession are the European model of a legal profession subservient to a strong central state with attenuated connections to business interests, and the American model of a legal profession dominated by powerful private economic interests seeking to manipulate a weak central state. Tahirih Lee's paper will discuss the measures taken to suppress songgun under the Ming and Qing, and outline the sudden emergence of a modern legal profession after 1911. Alison Conner and Jane Winn will look at the historical development of, and recent changes in, the legal professions of Hong Kong and the ROC on Taiwan, respectively. William Alford will look at the practice of law in cooperative law firms in Shanghai today and their struggle to define the role they will play in China's new economic and political order, and Melissa Macauley will act as discussant.
William P. Alford, Harvard Law School
The world of legal workers in the People's Republic of China (PRC or China) is in the midst of an epochal transformation. Whereas as recently as 1980, there were approximately 3,000 lawyers in the PRC (many of whom were aged and/or worked part time), since that time the number has grown almost twenty fold. Moreover, the PRC Ministry of Justice has recently embarked upon a plan to turn out an additional 90,000 to 100,000 more attorneys by century's end. This number alone would exceed the number of lawyers now in practice in Germany, France and the Benelux countries together.
Potentially more significant than even these increases is the redefinition now underway in China as to the role of lawyers. Whereas prior to this decade, virtually all lawyers were state employees, the Chinese government is now encouraging growing numbers of lawyers to form cooperative (hezuozhi) law firms that bear many of the attributes of private firms in other nations. Just as many state enterprises are now being forced to fend for themselves, some officials contend that state employed lawyers should be required to do the same and, accordingly, predict that the Chinese bar will be predominantly comprised of individuals who do not work for the state within a decade.
This paper will endeavor not only to chronicle this intriguing phenomenon that has been little followed outside of legal circles, but, as importantly, to assess its significance both parochially and more broadly. In so doing it will have three principal foci. First, it will demonstrate that even though the emerging Chinese bar's most visible members have taken on many of the trappings of western lawyerdom, the rise of this group and its significance on the Chinese scene are better understood as mirroring many of the conundra that beset broader efforts at legal, economic and political reform in the PRC. Second, it will draw with care upon the large literature on legal professionalism in other national settings to speculate about the meaning of professionalism-and particularly the lawyer's role as interface between public and private interests-in the contemporary PRC context (where the boundaries of public and private are especially fluid). Finally, it will speak to the dilemma that PRC lawyers confront in searching for models, whether from the past or abroad, upon which to shape their professional endeavor.
Alison W. Conner, University of Hawaii
For most of its history, the Hong Kong Legal profession has been small and colonial, based closely on the English model and requiring English training and qualifications. In 1969, it became possible for the first time formally to study law in Hong Kong, and during the last ten years, the opportunities to qualify locally have been greatly expanded. As a result, the number of Hong Kong's lawyers has increased tenfold and just over 70% of the Law Society's members are now Chinese.
Given Hong Kong's position as an international financial center and base for booming China trade, its lawyers might now expect diversification into more international legal work. But with the territory's reversion to the PRC only a few years away, the legal profession has entered the most critical stage of its development. To what extent and in what form will the profession survive the transition?
This paper will discuss three broad areas of concern. The first is the necessity for the profession to continue its "localization," both in membership and character, without turning its back entirely on its English origins. To what extent should it adopt recent English reforms? An old issue now revived by solicitors, but opposed by barristers, is whether it should go further and fuse the two branches of the profession.
The second is the felt need to internationalize both the organization of its firms and the services they provide, capitalizing on the links to China. Most local firms are still very small and have concentrated on real estate conveyancing rather than other commercial work. International practice has in the past been dominated by the larger London firms. A bitter issue since 1988 has been how local firms can now challenge that dominance while still allowing a role for foreign lawyers.
But the third-and greatest-area of concern is the Hong Kong profession's ability to maintain its independence and local identity against possible mainland Chinese control after 1997. Whatever its recent changes, the Chinese profession remains fundamentally different from Hong Kong's. What form should their relationship take, and must ties with the mainland's profession mean the end of serious political involvement by Hong Kong's lawyers?
Tahirih V. Lee, University of Minnesota
The songgun and songshi of the mid Ming through the Qing periods were, as far as we know, the first specialists in law who sold their services to private clients in China. For a variety of reasons, however, they did not resemble the professionals we call lawyers today. The first group of legal experts who did resemble lawyers emerged in the early years of the Republic. This paper will explore the training they received, the types of people who became lawyers, the roles they performed in China's legal system, the types of tasks they performed for clients, the types of tasks they performed for clients, the attempts by the Chinese state to regulate them, and their view of what "law" was. The aim of this paper is to understand the extent to which these first lawyers were a product of their society and the extent to which they formed a force for political and social change.
Jane K. Winn, Southern Methodist University
Prior to the lifting of martial law and the liberalization of many segments of Taiwan's economy, the contributions of the private bar to Taiwan's political economy were relatively small: the number of lawyers in private practice was not great; their interaction with foreign and domestic business interests was limited; and their political influence was even more circumscribed. The private practice of law focused more on litigation than on business counseling and transactional work. Martial law and the large number of retired army officers in the private bar tended to discourage the use of litigation as a strategy by opponents of the political regime.
Within the last decade, however, the circumstances of the private bar in Taiwan have changed dramatically. The number of candidates passing the general bar exam has dramatically increased and back doors to the private bar have been substantially closed. A large number of ROC citizens have returned from legal studies abroad, many licensed to practice in foreign jurisdictions, to act as legal consultants. The liberalization of Taiwan's political system has opened the door to opposition parties, with the active participation of many lawyers, although litigation is still not widely used as a strategy for legal or political reform. New law schools have opened up, and legal studies have attained a new popularity among young people.
These changes have repercussions that reach far beyond Taiwan's private bar. If a large number of lawyers are adopting the American model of a client oriented business service law practice, this may affect the balance of power between the ROC government, multinational corporations, local businesses and individual Taiwanese workers and consumers. As the ROC government pushes to develop Taiwan as a "regional operations center," will the emergence of a larger, more active legal profession undermine or promote the ability of the government effectively to implement its domestic policies?
This paper will put the recent changes in the composition and practice strategies of the ROC legal profession into the larger context of the process of democratization within Taiwan, and the increasing integration of Taiwan's domestic economy and local culture with global economic arenas and forces.
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