Minzner, C F --- "The rise and fall of Chinese legal education" [2013] LegEdDig 24; (2013) 21(2) Legal Education Digest 29

• The rise and fall of Chinese legal education

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The rise and fall of Chinese legal education

C F Minzner

Fordham International Law Journal, Vol. 36, No. 2, 2013, pp 335-396

In the past fifteen years, Chinese legal education has grown exponentially. Although law schools, faculty, and students have risen six-fold, job prospects have not kept pace.

In 1949, Communist authorities founded the modern Chinese state. They established a one-party political system centred on the Communist Party. Law was viewed as a utilitarian tool to assist in the socialist modernisation of China.

During the 1950s, Party authorities reformed legal education to meet this vision. Existing law faculties were reorganised. Some became politics and law (zhengfa) institutes managed by the Ministry of Justice. These produced graduates to serve as frontline state cadres in government and judicial institutions throughout the new socialist China. Others became departments within comprehensive universities, such as Peking University, focusing on training elite researchers and officials. Naturally, all were part of broader state efforts to create an institutionalised system of higher education, albeit a politicised one under firm Party control.

Law graduates remained few and far between. A poor, developing country, China had limited resources available for higher education.

These limited efforts at building legal education collapsed entirely during the political turmoil that engulfed China from the late 1950s to the 1970s. Central leaders launched leftist campaigns that criticised intellectuals, attacked formal institutions, and fanned the flames of radical populism. This ‘led to the spread of legal nihilism of despising the law, negating the legal system and ignoring legal education’.

Political radicalism decimated higher education. During the most extreme years of the Cultural Revolution (1966–76), almost all universities – and their law programs – were closed.

In the late 1970s, disillusioned with the chaos of the Maoist era, Chinese leaders turned their backs on political radicalism. They reopened schools, launched extensive foreign educational exchanges, and embraced legal reform.

Revival of higher education fuelled intellectual excitement. Rapid expansion, openness to Western law, and the possibility for deeper political and social changes generated a flush of interest among foreign observers as well.

This, however, may have been somewhat romanticised. Teaching quality remained uneven, with many professors having been educated over four decades earlier in pre-revolutionary

China. Universities laboured under financial constraints imposed by tight central budgets that devoted limited resources to higher education.

Just as in the 1950s, 1980s-era law graduates overwhelmingly entered state employment. They had few other options. No private bar existed. Employment prospects in foreign firms remained limited. In contrast, the demand in Chinese state organs for trained personnel was insatiable. In 1983, only three per cent of judges, procurators, and justice bureau officials held the equivalent of a junior college degree in law or above. Over 54 per cent had received less than a month of legal training.

Massive state demand for legal talent, coupled with the minuscule numbers of university graduates, meant that Chinese legal education in the 1980s was provided by a diverse range of institutions. Junior colleges and secondary technical schools trained a range of personnel who fleshed out the lower ranks of courts and administrative agencies. Graduates from these programs significantly outnumbered those from universities.

Legal education at institutes of higher education remained relatively limited in scale during the 1980s.

All of this changed in the 1990s. Multiple policy shifts contributed to a dramatic expansion of legal education.

First, Chinese authorities decided to rapidly expand higher education across the board. Authorities sought to surmount the pressures of the 1997-98 Asian financial crisis by rapidly increasing domestic spending on education. In just two years, between 1998 and 2000, entering classes of first-year students in institutes of higher education doubled, exploding from one to two million. The following years witnessed regular, double-digit percentage growth in numbers of Chinese students and faculty alike.

Second, to carry out this expansion, Chinese authorities altered how they managed academic institutions. They moved away from 1980s-era efforts that ran schools as cogs in a state-planned economy. Instead, they granted school administrators more autonomy to manage the regular operations of their institutions.

But they did not simply distribute the increased financial resources equally among schools. Rather, they tied the availability of funds to the success of schools in meeting one-size-fits-all target evaluations aimed at building comprehensive universities of national and international repute. Examples included Project 211 (launched in the mid-1990s) and Project 985 (launched in 1998).These rewarded schools based on subjective and numerical targets – percentages of faculty with advanced educational credentials, numbers of academic publications, scope of academic programs, size of school infrastructure (campus buildings, books, labs and technical equipment) – upon which individual schools were evaluated by educational officials.

The result: frenzied competition between schools. Schools engaged in hiring sprees of faculty with advanced degrees (making the late 1990s a very lucrative and attractive time to enter academia). They created mechanisms to reward and push faculty toward publishing larger and larger numbers of academic articles.

Starting in the 1990s, reform-minded central authorities launched a policy of professionalising China’s legal organs. Laws issued in 1995 made a degree from an institute of higher education a prerequisite for newly hired judges and procuratorate officials. In 2001, these (as well as the Lawyers Law) were amended to increase the basic educational requirement to a four-year university degree. Consistent with the new central line, authorities reworked their annual evaluation systems for court presidents and bureau chiefs to place greater emphasis on their success in recruiting individuals with university, or better yet, post-graduate degrees. Unlike the 1980s, such state positions were now in high demand. Graduates were attracted by the increased salaries and additional perks provided to urban state cadres beginning in the 1990s – including the opportunity to purchase previously state-owned apartments at low prices.

State employment was also no longer the only option for young law graduates. State-owned law firms of the 1980s gave way to private firms in the 1990s. For many Chinese students of the late 1990s, the study of law appeared to open a door to enticing, lucrative job prospects in the private sector.

In the 1990s and early 2000s, central Party authorities embraced legal reform as a tool to advance their own governance interests. In 1997, they adopted ‘rule by law’ (yifa zhiguo) as a core Party slogan. Such central policies opened space for a range of actors to appropriate the mantle of legal reform to advance a range of interests. In the late 1990s, United States and Chinese authorities launched rule-of-law exchanges and programs as a means of addressing human rights-related issues in a politically more acceptable format. By the early 2000s, a cadre of Chinese public interest lawyers and law professors had emerged on the national stage, adept at fusing savvy media strategies and legal challenges to push for greater institutional and social change.

Legal education exploded. From a handful of politics and law institutes and elite universities in the early 1980s, numbers of institutes of higher education with law programs increased to over 100 in the early 1990s. Within 15 years, they expanded another six-fold – reaching six hundred by 2006. Total numbers of law graduates from Chinese institutes of higher education surged from 31,500 in 1999, to 163,529 in 2005, and to 208,000 in 2008. But legal education increased proportionally as well. In 1988, law graduates accounted for only two per cent of all graduates from institutes of higher education. By 2001, this share had tripled to six per cent.

Consistent with moves towards professionalisation, Chinese legal education became standardised and centred on a university model. Beginning in the late 1990s, authorities upgraded secondary technical schools of law and politics to institutes of higher education.

Chinese legal academia became highly focused on the West – specifically, the United States. This influence extended from preferred models of graduate legal education to the specific content of legal academic research.

In summary, as Chinese legal education entered the 21^st century, it appeared to face a future full of prospects – growing numbers of graduates, booming employment prospects, expanding academic research, deepening international connections, and the promise of an important role in a nation in which law would be increasingly influential.

In recent years, law students have ranked dead last among all college graduates in terms of finding jobs. Students have been cautioned against choosing to study law; schools advised to shrink the size of their law programs. What explains this?

Naturally, poor quality education also contributes to the difficulty of graduates in finding jobs. Rapid expansion of legal education in the late 1990s and early 2000s led to the overnight proliferation of many programs where ‘everything from the teachers and students to the training actually provided is of low quality. Even among more highly ranked programs, much of Chinese legal education remains characterised by an academic and theoretical focus that does little to prepare students for actual careers. As one lawyer put it, ‘I did an undergraduate, masters, and PhD degree in law here in China. All of it was utterly worthless in terms of preparing me to actually work’.

The rapid increase in the number of Chinese law degrees over the past 15 years has severely eroded their value.

As massive expansion in the supply of one degree leads to a devaluation in its worth, employers respond by demanding yet higher degrees as entrance criteria. Students are driven to seek such degrees to stay competitive.

Enrolment in foreign LLM programs (with tuition ranging up to US$50,000 a year) has surged. Chinese schools have expanded their JM (falü shuoshi – or ‘professional’ law masters) programs, charging four times as much in tuition per student as compared with the ‘academic’ master degrees. The Peking University School of Transnational Law has recruited students seeking an English-language education in American law (US$38,000 spread over four years), along with a Chinese JM degree.

Heavy use by central authorities of target-intensive, one-size-fits-all evaluation mechanisms to develop higher education have created severe institutional distortions.

First, they have encouraged massive overexpansion. Rapid expansion of legal education has not been a carefully considered response to actual student or social demand. Rather, it has been part of an arms race among schools competing for central recognition as (for example) Project 211 or 985 institutions.

Second, they have pushed all schools to uniformly model themselves as research institutions, regardless of whether this is appropriate for their students and communities. Institutions ranging from local teacher training schools to national research universities find themselves driven to emphasise the same priorities: increase the educational qualifications of your faculty; generate large numbers of published articles.

This has resulted in ever-escalating competition to rack up higher numbers. Take publications, for example. In the early 1990s, a single article or two might have sufficed to permit an academic to ascend to full professor status. Now, schools routinely require Chinese academics to crank out multiple articles every year as they ascend from lecturer to assistant professor to full professor, and even afterwards.

Pressure to hit designated numerical targets has helped fuel a widespread culture of academic corruption and junk research. As one professor (and standing committee member in the consultative chamber of China’s national legislature) phrased it:

Because existing evaluation systems unilaterally emphasize numbers of articles and length of manuscripts, researchers produce huge amounts of scholarly garbage. Many works are low-quality copies [of other works] or lack any publication value, and have never been read or cited [by anyone]. In order to get published in a given journal, some authors and the organizations that employ them resort to a range of dishonest measures.

Schools deceive central evaluation teams with regard to other targets. Administrators make side payments to academics at other institutions, falsely report them as their own faculty, and thereby raise their own statistics of advanced degree holders. Some schools falsify employment statistics for their graduates. Others condition issuance of diplomas on the ability of students to present proof of post-graduation employment. As a result, students are pushed to falsify evidence of their own employment, thereby allowing schools to report high employment rates.

Single-minded focus on making target has led to a pervasive disregard for those components of higher education that are difficult to measure quantitatively (such as actual quality of academic articles) or are not heavily emphasised in the evaluation process (such as teaching).

Starting in the early 2000s, central leaders began to reconsider legal reforms they had launched in the 1980s and 1990s.

Practically, Chinese authorities perceived that some reforms, such as the 1990s-era emphasis on court adjudication and a professional judiciary, responded poorly to the needs of a rural China lacking in legal talent.

Substantively, Chinese authorities de-emphasised the role of formal law in dispute resolution. Instead, they revived Maoist-era mediation institutions. And starting in 2006, Party authorities launched ‘Socialist Rule of Law’ political campaigns that re-emphasised Party supremacy and warned against the infiltration of ‘Western’ rule-of-law concepts.

Central authorities formalised alternatives to regular university law programs to fill positions in local courts and governments. Beginning in 2008, they significantly expanded special legal training programs for designated cohorts of demobilised military officers. Participants generally follow the same curriculum as regular law students, but their educational experience differs in key aspects. They are selected for their excellent service records, are managed (and taught) separately from other students, receive stronger ideological indoctrination, and adhere to military discipline while enrolled. Upon graduation, they are allocated to positions as judges and government officials in rural China.

On December 29, 2011, the Central Party Politics and Law Committee and Ministry of Education released a joint opinion that will guide the track of Chinese legal education over the next decade.

The opinion identifies three major problems with Chinese legal education: (1) a lack of diversity among existing law schools; (2) a lack of practical skills among law graduates; and (3) an insufficient level of ‘socialist rule-of-law education’.

The opinion seeks to steer legal education in a new direction. To accomplish this, it creates a new evaluation mechanism. Just as with its predecessors (such as the 211 and 985 programs), it establishes a privileged designation (here, ‘outstanding legal talent training program’). Institutions that successfully distinguish themselves on a range of designated criteria receive the designation, linked to additional state resources and privileges.

Further, it does not list a single set of criteria as to what constitutes an ‘outstanding legal talent training program.’ Rather, it sets forth three different ones: (1) those that that are generally focused on improving students’ practical skills; (2) those that train elite students to operate in the global economy; and (3) those that train basic-level legal personnel for the courts and government agencies of rural western China. The plan allows all three types of programs to qualify.

The effect of existing state plans to rework legal education remains unclear. It is not clear whether Chinese authorities can succeed in implementing their reforms. Many individuals and institutions have vested interests in the existing system. Universities resist shifts that might alter their rankings relative to other schools. Professors hired for their research resist re-defining legal education as practical employment training.

Nor is it clear that current plans will have positive results. Official efforts to build ‘outstanding legal talent training programs’ appear aimed at allowing some schools to flourish, and others to die on the vine. They do so by creating new top-down target evaluation mechanisms around which competition with revolve. These may just replicate existing problems in different form. Sure, schools may no longer be incentivised to pump out large numbers of low-quality academic publications in order to be designated as elite academic institutions by educational authorities. But instead, they may simply be incentivised to pump out large numbers of students into low quality government internships in order to be designated as elite professional institutions by political-legal authorities.

Despite these criticisms, current Chinese state moves are a partial effort to address latent problems in legal education.

The large annual increases in applicants from China that American admissions officers have become accustomed to seeing since the late 1990s are directly related to domestic changes in Chinese legal education: massive growth in total numbers of law graduates, dismal job prospects, and a spiral of degree devaluation that has made foreign LLM degrees attractive, despite their expense.

The same spiral of degree devaluation that has affected Chinese domestic degrees is now playing out in US law schools. At a 2012 conference of US and Chinese law deans, one of the Chinese participants (in the opening address!) warned his American counterparts to cut their prices, or face Chinese schools steering their students to less-expensive LLM programs in the UK, Canada, or Australia.