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Phan, P N --- "Clinical Legal Education in China: In Pursuit of a Culture of Law and Mission of Social Justice" [2007] LegEdDig 41; (2007) 15(3) Legal Education Digest 8

Clinical Legal Education in China: In Pursuit of a Culture of Law and Mission of Social Justice

P N Phan

[2007] LegEdDig 41; (2007) 15(3) Legal Education Digest 8

Geo Wash U LS Pub L & Leg Theory Working Paper No. 357, 2005, pp 117-152

The push of historical forces and pull of modernisation 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, 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 in order to instil in the public some faith in the ability of the legal system to address their concerns.

The legal system that developed under the Chinese Communist Party (‘CCP’, or the ‘Party’) continued to emphasise 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.

With rapid economic and social reform at the forefront of domestic policy, Deng (Deng Xiaoping) and successive Party leaders have taken note of how indispensable a well-established legal system is to modernisation efforts in China.

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,’ long-honoured feudalistic norms continue to haunt the Chinese and exert a strong influence over modern China’s vision for law and the legal profession. 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. Chen has thus urged that the legal academy should step in to offer additional assistance in the development and advancement of the rule of law in China.

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’ (falü yuanzhu) 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 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.’ This new law imposes on lawyers a mandatory obligation to engage in legal aid.

Reports and studies on legal education in China have criticised the traditional emphasis placed on memorisation of black-letter law over critical reasoning and the ability to analyse and solve problems, 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.’

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. The reality of this system is that by implementing it during the students’ 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.

This traditional style of educating is in keeping not only with the nature of legal education in many other civil law jurisdictions, but also with the nature of Chinese education in general. 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. Although the Law on Lawyers requires much more than mere mastery of black-letter law, authorising the issuance of a practicing certificate only to those who have apprenticed with a law firm for over one year, it is no surprise that judges continue to complain about the low quality of lawyers.

In September 2000, as part of a Ford Foundation initiative, clinical legal education was launched in classrooms at seven different law schools located in Beijing, Wuhan, and Shanghai. By 2002, the effort had spread to four additional campuses located in other parts of the nation, 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.

CCCLE focuses on gaps in the traditional model of legal education to advocate for a more participatory, interactive (hudong) clinical model. Emphasising the need to research ‘how to improve students’ capacity to practice while they yet continue to cling to theory’ and working closely with clinicians from the United States through workshops and other exchanges, China’s early clinicians have established a vision for Chinese clinical legal education whereby ‘law students, under the guidance of teachers qualified to be attorneys at law, provide legal advisory services for those in need, “diagnose” their problems and give “prescriptions” to furnish them with methods of resolution, and legal aid. This model combines theoretic study with legal practice. . . .’

While skills training may have been the impetus for, and one focus of, the clinical model, there is a second, more fundamental objective: ‘to teach students how others think and to help them understand different points of view — to teach students how to be sovereign, responsible, and informed citizens in a heterogeneous democracy.’ In order to achieve recognition and resolution of society’s tensions, a second, more fundamental aim of legal education becomes the ability for students ‘to study and think about how the law came to be what it was, whose ends it served, why it should not be changed, and the role of lawyers and judges in changing it.’

This goal of heightened critical thinking is much more difficult to implement than mere skills training, and debates exist within American and Chinese clinical communities alike about whether it makes sense to incorporate it. Some of the earliest American clinical voices argued that because the law is designed to govern human relations, the study of legal problems must necessarily be ‘a study of the facts as to human relations and the study of the rule of law regulating those relations.’ Similarly, some of China’s pioneering clinicians have continued to draw parallels to the medical model, conceptualising lawyers as professionals trained for the purpose of examining society’s ills.

The ‘ills’ to which these clinicians refer are the injustices that plague a heterogeneous ‘democracy.’ When the zeitgeist of the 1960s thrust clinical programs into a whole host of crises in American society, it opened the door for clinical faculty to question the law’s potential for remedying injustice and inequality.

Significantly, the MacCrate Report included among the list of important professional values ‘striving to promote justice, fairness and morality.’ A ‘justice-oriented clinic’ is one that takes on the challenge posed by MacCrate to teach about ‘justice, fairness and morality,’ pushing students ‘to deconstruct power, to identify privilege, and to take responsibility for the ways in which the law confers dominance.’

Simply stated, a justice-oriented clinic teaches students about justice by exposing them to injustice, and in this way helps them verify the commitment of their own societies to ‘democracy.’ It furthers so-called ‘social justice imperatives’ in three important ways: (1) ‘through the provision of services and pursuit of legal and social reform on behalf of clients and community groups lacking meaningful access to society’s institutions of justice and power;’ (2) through the exposure of law students to a spirit of public service that will help extend access to counsel to such clients and community groups; and (3) through the provision of experiential learning in a way that allows them to understand the relationship between law and issues of social justice, on both a theoretical and personal level.

In effect, the ideal of a justice-oriented clinic is to train students to become social activists. Whether this is an appropriate ideal for legal education is perhaps best answered by William Pincus of the Ford Foundation, who insisted that ‘[f]ighting for justice for an individual is essential for the individual and for society if it is to continue to be a society worth living in,’ adding, ‘If lawyers don’t do this, who will?’

There is a push from within China for a more accountable, democratic state, leading to the type of social movement that American legal clinics capitalised on during the 1960s. As the structure of society changes, the formulation of what is ‘just’ or ‘unjust’ has also begun to change. The average Chinese citizen no longer considers as ‘just’ whatever the Emperor or the Party deems so.

If new relationships in Chinese society are to have meaning and be sustainable, they need to be supported by a legal framework that includes respect for the limits and obligations imposed by law.

To respond adequately to the social transformations taking place in China, legal clinics have helped to shift the ‘emphasis of lawyering ... from outcome to process ... [and] from instrumentalism to empowerment.’ Chinese clinicians attempt to do this by teaching skills, knowledge, and the ability to work with members of subordinated communities in ways meant to facilitate social transformation. Because CCCLE specifically identifies ‘providing legal aid to disadvantaged groups’ as one of the goals of clinical legal education in China, legal aid casework serves as the starting point and an integral part of almost every clinic at every Chinese law school.

The legal clinic at Wuda, for example, was deliberately designed to be about service and takes on the mission of the Wuhan Center, aiming ‘to provide the most quality legal aid to people in the most need by the most able people.’ At Wuda, each of the four clinic instructors occupies a position of leadership in one of the Wuhan Center’s six divisions and takes on responsibility for supervising a group of eight clinic students, divided into pairs that work closely on a case of their own choosing, approved by the clinician. Supervisory sessions are conducted on a weekly basis or as needed, and include updates of progress made on each case, as well as difficulties encountered along the way. For the more fortunate students, there is an opportunity to go to court by semester’s end.

The real challenge for Chinese clinicians has been to determine exactly how to structure a justice-oriented clinic — in particular, what knowledge and skills need to be taught in order to achieve the clinic’s pedagogical aims.

While CCCLE takes no position on which lawyering skills should be incorporated into the clinical curriculum, it does highlight the following as worthy of commending and perhaps advancing: — learning how to communicate with a variety of clients under different circumstances; (1) learning how to deal with different legal problems; (2) learning how to develop oral advocacy skills, including questioning technique and summarising; (3) learning how to plan for a case and analyse the facts and materials in a way that allows for effective problem-solving; (4) learning how to give priority to the clients’ preferences, rather than one’s own.

These benchmarks echo the skills set forth in the MacCrate Report, which provides an even more extensive outline of the specific skills that should be taught to ensure competent practice of the law. It is important to note, however, that such skills cannot be taught in China the same way they are taught in the United States.

In adapting the American clinical model to China’s needs, it is crucial to recognise that China is a civil law society in which judges regard themselves as civil servants. During court proceedings, they exercise extensive power over the supervision and shaping of the fact-finding process. Moreover, there is no formal civil law equivalent to the common law process of discovery, and the trial itself is but a moment buried in a series of meetings, hearings, and verbal and written communications.

At Wuda, for example, there is ongoing debate about whether a classroom component should even exist, or whether the main aim of the clinical program is merely to provide experiential learning through the provision and supervision of casework.

When used effectively, classroom sessions help to provide context to what the students are gaining from their casework and ensure that all students — not just the top students — are challenging their own perceptions and re-evaluating their personal evolution as legal professionals.

Admittedly, a number of systemic challenges make it difficult for Chinese clinicians to utilise fully the potential of the clinical classroom. To begin with, legal clinics remain a sort of luxury item, regarded by Chinese law schools as much less important than the courses required for graduation. While the legal clinic at Wuda may involve up to four or five hours of class time per week, in addition to several hours of correspondence with and research on behalf of clients, it is assigned only three credits — the same number allotted to classes meeting just three hours per week, with few, if any, out-of-class assignments.

Under such circumstances, the demands of the clinical program can prove tiring to both students and clinicians. Clinic students — whether in China or elsewhere in the world — must balance academic obligations with demands imposed by their clients. In China, their instructors must build the foundation for the school’s clinical program, even as professional assessment continues to focus on assigned teaching and research work in specialised areas. The combination of these multiple pressures has resulted in the tendency to neglect or hastily scrap together poorly conceived in-class sessions.

For clinicians to enjoy greater success, there must be a more coordinated effort to re-examine Chinese legal pedagogy as a whole. Clinical education currently requires Chinese students to make use of foundational skills that remain absent from the undergraduate curriculum, and that are rarely imparted even at the graduate level. Thus, an early emphasis on critical thinking and persuasive writing would increase the effectiveness of clinical legal education in a student’s educational experience more generally.

Fortunately, this may be where the Chinese system of legal education holds greater potential for integrating doctrinal and clinical methods than its American counterpart. In China, ‘clinical methodology’ is a catch-all term that expands beyond simulations and case supervision to include any teaching method that is participatory and interactive in nature. By creating such a broad definition, the Chinese have made it easier for doctrinal professors to be receptive to the clinical method, even when they may be sceptical of the particular exercises or role-playing techniques associated with it.

More importantly, because Chinese clinicians are also educators in doctrinal subjects, they are not ‘outsiders’ at the outset of their careers, but instead fight the same battles for recognition and legitimacy as their doctrinal colleagues. As a result, the experimental clinical methodologies used in their doctrinal courses are more likely to be seen as models for successful legal teaching generally.

The clinical method additionally suffers, not because it is premature or inapplicable in China, but perhaps because it currently lacks institutional support both within and outside the university. As an initial matter, Chinese legal clinics face more issues related to government control over — and pressure upon — legal activities than their American counterparts.

In addition, Chinese clinics do not enjoy the human resources support from which American clinics benefit, and are instead heavily reliant on students and volunteer staff. These students lack ‘legal representative’ status when handling cases and are therefore severely limited in their room to manoeuvre on behalf of clients. Moreover, they could not, even if they wanted to, resort to some of the tactics frequently used by practicing lawyers to establish ex parte communications and relationships (guanxi) with the judges responsible for their cases.

Chinese legal educators have also worried about the youth and vulnerability of their students, noting that setbacks in the courtroom have the potential to disillusion them at too early a stage in their careers, thus discouraging them from the pursuit of law after graduation.

By contrast, while the morale and competency of student representatives may also be low, these students have at least chosen and competed vigorously to participate in the provision of legal aid services through their clinical programs.

Clinical legal education provides a mechanism for working with clients who in China also function as ‘social movement actors,’ commonly oppressed but no longer willing to accept their oppression. ‘Conscientization’ is critical to the actual launching of a social movement and requires a ‘reflection upon social, economic, political, and legal structures, and upon distributions of resources and power.’ This allows social movement actors to realise that their suffering is ‘structural, not individual, in origin.’ Only after this critical consciousness forms can these actors be moved to end their oppression, through ‘the fundamental transformation of the social, economic and/or political conditions which permit and perpetuate that oppression.’

If China’s social movement actors fail to understand that the social tensions and crisis in governance that exist in China result from the lack of a sound legal culture, which is necessary to support the rule of law, then any revolution that ensues will be a destructive one and will fail to establish new structures that are sustainable.

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