Clinical legal education in China: in pursuit of a culture of law and a mission of social justice.

• Author: Phan, Pamela N.

Seeking to play a greater role in an evolving world order, China faces pressure to conform to international legal norms and the rule of law. Strengthening the legal culture in China includes exploring new ways to train Chinese law students. Against this background of cultural and pedagogical 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.

1. 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.

2. RE-CONCEPTUALIZING THE ROLE OF THE LAW AND CHINESE LEGAL EDUCATION

   1. 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...