LAWYERS UNDER AUTHORITARIANISM

Over the past decade, authoritarian legality has emerged as a new, important thread of sociolegal scholarship,Footnote ⁴ propelled by the insight that a well-functioning legal system can serve an illiberal regime. Fair, efficient dispute resolution presents a range of benefits, from encouraging economic growth to fortifying leaders’ popularity (Moustafa and Ginsburg Reference Moustafa, Ginsburg, Ginsburg and Moustafa2008, 4–11). At the same time, however, reliance on law also opens possibilities for political activism. Even in a hostile political environment, when judges dare not rule against the government, activist lawyers still frequently turn to litigation as part of a suite of tactics to call attention to an issue and attract support (Vanhala Reference Vanhala2012; van der Vet Reference van der Vet2018). Seen through this lens, China is a large-scale experiment in whether an authoritarian state can exploit the advantages of law without ceding political control. Inspired by Ernst Fraenkel’s depiction of Nazi Germany (Reference Fraenkel1941), a number of observers have recently suggested China’s solution likewise lies in a dual legal system, where the rules depend on the political clout of the players, and “law matters sometimes, but not always” (Hendley Reference Hendley2015, 547). This characterization places China alongside Russia and Singapore as examples of legal systems that aspire to fair, efficient dispute resolution without giving up ad hoc political meddling. Unlike governments that subscribe to only the shallowest and most self-serving view of law, these countries are committed to predictable legal procedures and acclimated to legal argument, at least most of the time.Footnote ⁵ They treat fair, efficient dispute resolution as a public good and aim to provide it without allowing courts to serve as an arena for political criticism. The field is still debating whether this type of law bolsters political stability or undermines it. On the one hand, survey evidence suggests that exposure to information about legal aid programs boosts Chinese citizens’ trust in local government (Whiting Reference Whiting2017). On the other hand, research on Chinese workers argues that legal rights can fuel rising expectations, sparking instability both when worker demands outstrip legal protections and when legal institutions let workers down (Gallagher Reference Gallagher2017).

One response to the debate about law and authoritarian stability is to say that a lot depends on whether the legal profession cooperates with the state or mobilizes against it. A rich vein of sociolegal scholarship documents how lawyers first agitate for autonomy from the state and then advocate for civil rights (Halliday and Karpik Reference Halliday and Karpik1997; Halliday, Karpik, and Feeley Reference Halliday, Karpik and Feeley2007). The global history of the legal profession is filled with examples of lawyers demanding professional independence, from nineteenth-century Prussia (Rueschemeyer Reference Rueschemeyer, Terence and Karpik1997) to twenty-first century Tunisia (Gobe and Salaymeh Reference Gobe and Salaymeh2016). With a modicum of detachment attained, lawyers often strike what Malcolm Feeley and Setsuo Miyazawa—writing about twentieth-century Japan—call a “skeptical stance towards the government,” protesting incursions on judicial independence and civil rights and, at times, demanding political reform (Reference Feeley, Miyazawa, Terence, Karpik and Malcolm2007, 184). In contemporary China, the emergence of a private bar at the turn of the twenty-first century opened a sliver of space between the profession and the state. Chinese lawyers were no longer civil servants and, partly as result, a wave of legal activism swept the country during the first decade of the 2000s even though the national Ministry of Justice and local Justice Bureaus continued to maintain tight control over the bar association.Footnote ⁶

Although lawyers are often front-and-center in opposition politics, so far work on authoritarian legality has paid more attention to strategies to control courts than those used to control lawyers.Footnote ⁷ The assumption is that political elites turn to coercion, starting with threats, and escalating to disbarment, detention, and arrests, to mute activist lawyers and cow everyone else. This logic of “kill one, intimidate 100” spans research on authoritarian lawyers around the globe, surfacing in settings as diverse as Russia (Solomon Reference Solomon2010), Sudan (Massoud Reference Massoud2014), and China (Pils Reference Pils2015; Liu and Halliday Reference Liu and Halliday2016; Palmer Reference Palmer2017).Footnote ⁸ In large part, this idea is common because it is true. Fear is a powerful tool of rule, and a little bit of coercion can produce a great deal of self-censorship. Among Chinese lawyers, in particular, there is evidence of “ultra-general deterrence,” in which a few well-known cases of lawyers getting in trouble generate a sense of risk felt across the bar (van Rooij Reference van Rooij2016).

This focus on fear is not wrong, but incomplete. The other half of China’s hybrid control strategy is professional socialization, particularly messages about appropriate behavior. A few scattered voices in the literature on authoritarian legality take this second face of control seriously, typically by closely observing a single arena of socialization. Lisa Hilbink, for example, writes about how Chilean legal education steeped generations of judges in an ideology that “equated professionalism with apoliticism” and, in so doing, forged a judiciary reluctant to challenge executive action (Reference Hilbink2007, 39). Along similar lines, Jothie Rajah’s discursive analysis of the Select Committee Hearings on the 1986 amendment to the Singapore Legal Profession Bill frames the Hearings as a “public pedagogy” designed to school lawyers in the boundaries of public advocacy (Reference Rajah, Terence, Karpik and Malcolm2012, 170).Footnote ¹⁰ In real life, though, public pedagogy is rarely confined to a single time or location. Rather, messages about the type of lawyer celebrated by officialdom arrive through multiple channels, some frontloaded in a lawyer’s career (such as legal education and the bar exam) and others more visible later on (such as state awards and changes to regulations). Extending existing work, this article pushes toward a portrayal of legal professionalism as defined by the shoots and offshoots of the state: as an ideal communicated in multiple ways and updated with changing political realities.

Table 1 lists some of the key ways state and state-affiliated actors communicate behavioral norms to Chinese lawyers. It is not meant as an exhaustive list but as a field guide to help researchers identify the arenas where lawyers are taught to act professional by the state. Across regime types, “professionalism” is a word that connotes competence, but is also often invoked to “convince, cajole and persuade” workers to behave in ways that power-holders deem productive and unthreatening (Evetts Reference Evetts2003, 411). Though it is now commonplace that notions of appropriate work identity and conduct reinforce hierarchy, less has been said about where professional expectations come from and how they are communicated. How are “invisible cognitive frameworks” built and broadcast (Albiston Reference Albiston2005, 17)? This is an important question, given strong evidence that ideal worker norms shape ideas about what is possible and preferable. In the United States, the assumption is often that older lawyers socialize younger ones, particularly through law schools, workplaces, and bar associations (Nelson and Trubek Reference Nelson, Trubek, Robert, David and Rayman1992). Of course, inside-the-profession interactions are critical to Chinese lawyers as well, and more work on how socialization works in these arenas would be welcome. But in China, the state is also a central, self-conscious player in an ideological struggle over the role lawyers should play in society. As we collectively build a fuller picture of the varieties of legal professionalism circulating inside individual societies, and globally the Chinese case points researchers toward good listening posts where state messages about legal professionalism are audible.

TABLE 1.

Key Arenas of State-Led Legal Professionalism in ChinaFootnote ⁹

For the literature on legal activism under authoritarianism, our call is to expand how we think about political control to include professional socialization. Certainly, conflating control and coercion is an effective cognitive shortcut that tells us a great deal about the relationship between lawyers and the Chinese state. But the same cognitive shortcut tends either to cast authoritarian lawyers in an oppositional role, as promoters of political liberalism or to dismiss them as loyalists. As discussed further below, this two-dimensional view misses the ways lawyers can participate in authoritarian governance and the ways that insiders find meaning in their work. In China, fear coexists with an affirmative state vision of how lawyers can participate in politics, and with optimism about how lawyers of all stripes can contribute to society.

RESEARCH CONTEXT, DATA, AND METHODS

Compared to the lengthening stretch of the CCP’s tenure, the existence of a private bar in China is relatively recent. Most Chinese lawyers were state employees until a state-led “unhooking and restructuring” drive around the turn of the twenty-first century popularized private practice (Michelson Reference Michelson2007, 353). By 2004, only 14 percent of law firms were state-owned, down from 98 percent in 1990 (Zhu Reference Zhu2007, 332). But even though the vast majority of Chinese lawyers are no longer paid by the state, the government remains substantially involved in their professional lives. Most of this involvement is channeled through two actors with direct responsibility for overseeing the bar: the Ministry of Justice (MoJ), the government agency that licenses lawyers; and the All China Lawyers Association (ACLA), the national bar association founded in 1986. Although the ACLA is sometimes described as the Chinese equivalent of the American Bar Association, it has far tighter ties to the state than that analogy suggests.Footnote ¹¹ The 2018 ACLA Charter tasks the organization with professional self-government and protecting lawyers’ rights, but also makes clear that the organization should firmly support “Xi Jinping’s new era of socialism with Chinese characteristics” and the “leadership of the CCP” (Article 3). In addition, Article 4 of the Charter delineates formal oversight by both the Party, through the national-level CCP committee on the legal profession, and the state, through the MoJ. Historically, the ACLA has cooperated closely with the authorities, primarily by helping to draft the codes of conduct and laws that regulate the profession and by disciplining wayward lawyers.

In particular, the MoJ and ACLA work hand-in-glove to annually assess law firms and lawyers, the most important form of bureaucratic control over the Chinese legal profession. Every year, both law firms and lawyers must renew their license to operate. The justice bureau oversees this process for law firms while the lawyers’ association takes responsibility for individual lawyers, but consultation and coordination are expected. In recent years, license renewal has become a common way to pressure China’s most politically active lawyers. Lawyers whose activities attract official disapproval have found themselves waiting long months for a license to be renewed and are sometimes disbarred altogether. Law firms also have strong incentives to encourage lawyers to toe the line, as the political troubles of an individual can also cause trouble for firm reregistration.Footnote ¹²

This article looks at three channels by which the ACLA and the justice bureau collectively signal professional expectations: the administrative rules governing lawyers, the bar exam, and the ACLA’s National Outstanding Lawyer Award. Our discussion of regulatory changes relies on close reading, while the analysis of the latter two signals draws on original datasets. The first dataset consists of all 4,918 questions that appeared on the bar exam between 2002 and 2017, including the 4,800 multiple choice questions and the 118 essay questions.Footnote ¹³ The bar exam (司法考试), which is administered by the MoJ, was revamped in 2002 and serves as a basic qualification for aspiring lawyers, judges, and prosecutors. The test is known for its difficulty, with a pass rate of just 14.3 percent across the sixteen tests included in our question pool (Xinhua 2017). Below, we rely on topic modeling, a popular tool of computational text analysis, as well as close reading to analyze this pool of questions.

The second original dataset contains publicly available biographical information for 604 of the 614 attorneys who won the National Outstanding Lawyer Award since its inception in 2005,Footnote ¹⁴ supplemented by twenty-seven semi-structured interviews with award recipients. A list of award-winners is available on the MoJ’s website, and a team of research assistants coded a set of biographical variables for each award-winner based on two online sources: (1) their online law firm profile; and (2) write-ups about awardees in the ACLA’s online yearbook. Following the completion of the database, we conducted interviews with a subset of award winners in four Chinese cities.Footnote ¹⁵ These interviews took place between May 2017 and August 2018 and lasted between forty-five minutes and two hours (see Appendix A).Footnote ¹⁶ In these conversations, which were conducted in Mandarin Chinese at the law firms of participating lawyers, we asked interviewees about the role and responsibilities of a lawyer, their view of other lawyers and Chinese legal reform, and their involvement with the ACLA.

Despite the variety of data marshalled here, this article is neither an exhaustive catalogue of all the official signals surrounding legal professionalism nor a full account of the varieties of professionalism circulating among the bar. In particular, the decision to focus on the MoJ’s and ACLA’s public pronouncements limits our ability to observe behind-the-scenes bureaucratic battles over the future of the legal profession, as well as our understanding of how lawyers respond to the state’s message. It is also a choice to develop the state’s image of the good lawyer rather than discuss the lessons lawyers draw from their colleagues’ troubles.Footnote ¹⁷ Nor does this article investigate how professionalism is taught inside law schools. Although more work on legal education would be welcome, Chinese law school is not yet a critical formational experience for Chinese lawyers. Until 2017, it was possible to register for the Chinese bar exam without formal training in law and many of today’s lawyers have done just that.Footnote ¹⁸ Rather, our focus on state-society communication offers a way to exhume the origins of professional ideals, as curated by certain state agencies. Information about who the state regards as a good lawyer does not arrive through osmosis, as much as it might sometimes seem that way, but rather through specific channels.

THE BAR EXAM

In the career life cycle of a Chinese lawyer, the bar exam is an early direct encounter with the Ministry of Justice, the state agency that governs lawyers’ professional lives. In addition to transmitting legal knowledge, sitting for the test also helps future lawyers sketch a “blueprint of the character, capabilities and commitments of the state” and to understand what is expected of them as lawyers (Lerman and Weaver Reference Lerman and Weaver2014, 13).Footnote ¹⁹ Signals surrounding proper comportment, however, have shifted significantly from the inception of the exam in 2002. Although the bar exam was originally designed as an apolitical exercise in learning the law, it has become an arena where aspiring lawyers receive state instruction about correct professional behavior and the limits of acceptable legal advocacy.

The key change came in 2007, when the MoJ began including political material.Footnote ²⁰ Between 2002 and 2006, the bar exam had almost no political content and was focused on testing legal knowledge. In 2007, however, examinees were pointedly asked to explain “the main content of our country’s socialist rule of law ideology as well as the principal essence of socialist rule of law.”Footnote ²¹ In 2009, the MoJ elevated socialist rule of law theory to its own section on the official outline of exam topics, and allocated more points to it. A structural topic model of all 4,918 test questions from the years 2002 to 2017 illustrates the turning point, after which the bar exam became more political.Footnote ²² Socialist rule of law emerges as a clear topic in a sixty-five-topic model, and Figure 1 shows a sharp jump in mean expected topic proportionFootnote ²³ from 0.7 percent around 2008 to 1.2 percent by 2009, to 2.2 percent by 2010, and to 3.7 percent by 2012.Footnote ²⁴ Although the expected topic proportion for the socialist rule of law topic gradually trailed off to 1.9 percent in 2017, the expected topic proportion on the 2017 exam remained twice as high as in 2008.

Figure 1.

Expected Topic Proportion for Socialist Rule of Law (Topic 51).

The politicization of the Chinese bar exam fits into a trend of ideological tightening that predates CCP General Secretary Xi Jinping, but has visibly accelerated under his administration.Footnote ²⁵ Xi’s public embrace of a Chinese path and Chinese dream reflect his ambition to mint an alternative to liberal democracy. As Xi himself announced at the 19th Party Congress in October 2017, China offers a “new option for other countries and nations who want to speed up their development while preserving their independence” (quoted in Buckley and Bradsher Reference Buckley and Bradsher2017). In law, in particular, the politicization of the bar exam has turned the test into a site of political socialization. As Stern (Reference Stern2016) discusses, the presence of political questions sets up an exchange in which aspiring lawyers provide the politically correct answer and receive points in return. Questions like this give test-takers an opportunity to demonstrate political loyalty:Footnote ²⁶

1. A. Rule of law is related to Party governance to invigorate the country (兴国), the happiness of the people, and the long-term stability of the Party and country.

2. B. Rule of law is a system to govern the country and a necessary requirement to modernize the ability to govern.

3. C. The overall goal is forming a comprehensive, standardized system of laws and regulations, and efficient enforcement of that system.

4. D. The legalization of all aspects of society helps guarantee the construction and development of a socialist rule of law system with Chinese characteristics.

Given time pressure, a large amount to study, and a low pass rate, most test-takers memorize study guides and unhesitatingly pick the right answer (which is D). Teachers, too, sometimes remind students what the Party wants to hear. “If you want to get a good score in the socialist rule of law section,” a teacher at a top bar preparation school advised, “memorize this one sentence.… The sentence is: our Party is always glorious, great and correct…. I don’t care what you really think in your heart, it’s not about what you think inside” (quoted in Stern Reference Stern2016, 528). Today’s bar exam, then, serves the dual function of ensuring a baseline level of legal knowledge and signaling the importance of comportment. Those who sit for the bar exam learn that expressions of loyalty yield tangible benefit and also that the authorities reserve the right to demand them. This political agenda has also become more explicit of late. In 2018, the first line of the annual MoJ exam outline clarified that the goal of the test is to establish a “socialist rule of law work team loyal to the Party, to the country, to the people and to the law” (MoJ 2018a, 1).Footnote ²⁷

REGULATIONS

Alone, the politicization of the bar exam proved insufficient to deter at least some determined lawyers from continuing to use litigation as a tool of social change. As China crossed into the second decade of the twenty-first century, however, signs began to mount that the acceptable bounds of legal activism were narrowing. Outside China, the signal that attracted the most attention came in July 2015, when a coordinated wave of arrests rounded up over 270 human-rights lawyers across the country.Footnote ²⁸ Although detention, harassment, and even arrests of individual lawyers had long been common, the systematic nature of this crackdown suggested a new level of seriousness about reining in the bar. Shortly afterward, a number of regulatory changes began spelling out the acceptable limits of legal advocacy. These regulatory changes are a good example of the “expressive function” of law, or the idea that laws “make a statement” about acceptable and unacceptable behavior (Sunstein Reference Sunstein1996, 2024). Like many important regulatory revisions, however, the radicalness of the shift went somewhat unappreciated. Regulatory changes make for boring press and, although Xi Jinping’s crackdown on legal activism drew a great deal of attention, few observers (especially outside of China) remarked on how the new limits of advocacy were inscribed in law.

The most important change came in 2016, when the MoJ revised the Administrative Measures for the Practice of Law by Lawyers to narrow the definition of professional comportment and place certain actions explicitly out of bounds. In particular, most protest tactics are now forbidden. Lawyers should not “exert pressure” (施加压) by organizing sit-ins, raising banners, or shouting slogans (Article 37). Nor should they support high-profile cases with joint petitions or by forming online solidarity groups (Article 38). Moreover, public speech should be “lawful, objective, fair, and circumspect,” devoid of remarks that could “provoke dissatisfaction with the Party or the government” (Article 40). This highly specific list of forbidden activities are all fresh additions to the law and, taken together, outlaw nearly all of the strategies China’s activist lawyers had come to rely on. At least some activist lawyers had come to “talk and act like politicians,” using publicity to influence public opinion and policy making (Pieke Reference Pieke2016, 113). If strictly followed, the new rules would prevent lawyers from becoming a media presence and curb their political role to private, insider influence. Penalties for violations are also severe. Violations of Articles 35–40 trigger administrative penalties under Article 49 of the Lawyers Law, which could include a six to twelve-month cessation of practice, a fine of up to 50,000 RMB, confiscation of illegal income, revocation of a practice license, and criminal liability.

In addition, the 2016 revisions to the Administrative Measures make demands for loyalty explicit. Article 2 replaces the 2008 definition of a lawyer as a properly credentialed legal service provider with the statement that support for CCP leadership and socialist rule of law is a “basic professional requirement.” These new rules were adopted shortly after parallel revisions to the Measures on the Administration of Law Firms (律师事务所管理办法), which remind law firms that their responsibility to monitor lawyers does not allow them to condone any of the above behaviors.Footnote ²⁹ Although these regulatory changes largely slipped by public notice, a few lawyers denounced the new rules as a “combination punch” (组合拳) aimed at legal activism (Yu Reference Yu2016).Footnote ³⁰ “There is no constitutional or legal basis” for the regulations, one outspoken lawyer told The Epoch Times. “The real purpose is to control lawyers like slaves” (Luo Reference Luo2016).

As signals go, the revised Administrative Measures are hardly subtle. It spells out politically problematic behavior and, in so doing, tells lawyers exactly what the authorities expect. These detailed prescriptions aim to clarify the limits of the permissible, and break from years of ambiguity about how much boundary-pushing the authorities will countenance. Although activist lawyers may still be surprised by who lands in trouble, especially as rule-breakers are not always punished, extralegal lobbying is now unwelcome when it was once tolerated. After a decades-long struggle to contain legal activism and root political critics out of the profession, mixed signals over the state’s bottom line are resolving into clarity that only courteous, by-the-book courtroom advocacy is acceptable. The Administrative Measures try to shrink “the no-man’s land between the uncontroversial and the forbidden” by growing the forbidden zone to encompass a larger range of behavior (Stern and O’Brien Reference Stern and O’Brien2012, 186).

Regulatory updates since 2016 have further underscored the importance of loyalty to the Party in general and to Party General Secretary Xi Jinping in particular. In December 2018, the MoJ amended the Measures on the Administration of Law Firms to ask law firms to specifically recognize “Xi Jinping’s new era of socialism with Chinese characteristics” (Article 3) and to help “sustain and strengthen the Party’s leadership over the legal profession.” Law firms with more than three CCP members—which would include the majority of law firms in China—must also immediately establish Party committees inside their firms (Article 4). Along similar lines, 2018 revisions to the ACLA Charter place new emphasis on Xi Jinping’s thought and leadership, and also describe the ACLA’s commitment to helping to build the Party (党的建设工作) for the first time (Article 3). The Charter also requires the ACLA to follow the guidance of the CCP’s All China Communist Lawyers Committee (中国共产党全国律师行业委员会), as well as the MoJ, and promote the development of the CCP inside the legal profession (Article 4).

For all the new demands on lawyers to vocally support the Party and to avoid disruptive tactics, these increasingly stringent expectations are all aimed at external behavior. State signals about who counts as a good lawyer reinforce the division between outward behavior and inner thought, with limited aspirations for the latter. These are the basic terms of what others have called the state’s “Faustian bargain,” a “good life” in return for “acquiescing in the role the CCP has accorded itself in Chinese political and legal life” (Alford Reference Alford and William2007, 295). For the contemporary CCP, this split shows how far the Party has traveled from its revolutionary roots. Brainwashing (洗脑), ideological remolding (思想改造), and thought work (思想工作) are well-used words in the Communist lexicon and reflect optimism that nearly anyone can be persuaded to the Party’s point of view. Although those words live on, and are still commonly used to describe plans to win over government critics,Footnote ³¹ signals sent to lawyers suggest a scaling back of the ambition to control thought as well as behavior, at least for certain groups. Knowing and following the rules meets the minimum bar to qualify as a good lawyer, even if toeing the line falls short of heartfelt allegiance.

AWARDS

The signals sent to the legal profession via regulations and the bar exam have a good deal in common: both shifted inside a decade to spotlight the importance of political allegiance, and both warn lawyers away from extralegal advocacy. In addition to detailing what lawyers should not do, however, the Chinese authorities also promote a positive, state-sanctioned vision of how lawyers should participate in politics. This section explores the state’s ideal of the “good lawyer” by looking closely at the biographies of those who win the ACLA’s National Outstanding Lawyer Award. One reason to examine awards is that the CCP takes archetypes seriously themselves. Building on a 1950s Communist tradition of publicly exalting individual workers to inspire their peers (Stranahan Reference Stranahan1983), the glorification of select workers continues today with the publicity surrounding standard bearers often spotlighting traits in political favor.Footnote ³² Of course, giving out awards to lawyers deemed outstanding is a particularly direct way to signal who counts as a good lawyer. Although political elites everywhere present honors that serve as an important source of symbolic capital (think of the Presidential Medal of Freedom in the United States),Footnote ³³ the CCP is unusual in treating exemplary daily work as a contribution to society and routinely recognizing workers for doing a good job.Footnote ³⁴ As discussed further below, we find remarkable stability across the award’s decade-long history. Outstanding Lawyers are typically men with close ties to the state, who are celebrated for certain types of political activities: work advising government, providing individual legal aid, and serving as a bridge between government and the governed.

Before jumping into our analysis, however, some information about how the award works is helpful. The ACLA introduced the National Outstanding Lawyer Award in 2005 to recognize lawyers with excellent political quality (政治素质过硬), exceptional professional integrity (职业操守优异), and outstanding work achievements (工作业绩突出), and there have been four rounds since then.Footnote ³⁵ The ACLA, which is a national organization, devolves responsibility for selecting winners to the provincial-level lawyers’ association and assigns each province a quota of awards.Footnote ³⁹ Although provincial bar associations vary in their transparency about how selection works, publicly available information suggests that the process is typically run by the provincial or municipal lawyers’ association, with local officials formally serving on the selection committee. In Guangzhou, for example, a committee comprised of officials from the justice bureau and lawyers active in the city bar association proposed a list of nominees. This list was vetted by the city bar association’s Party committee, approved by the Standing Committee of the bar association, and finally forwarded to the provincial bar association (Guangzhou City Lawyers Association 2016).Footnote ⁴⁰

Our coding shows that a certain type of Chinese lawyer consistently wins the Outstanding Lawyer Award: a well-educated man working in private practice who holds a leadership position in the ACLA or his local bar association (Table 2).Footnote ⁴¹ Given that local bar associations control the nomination process, it is perhaps unsurprising that so many worthies draw from their ranks. Nominees would be well-known to a committee already disposed to believe that bar association leadership shows a public-spirited ability to organize and inspire others. Education is clearly a selection criterion too, with 49 percent of winners holding advanced degrees.Footnote ⁴² Diplomas were nearly always earned in China, however, with just 3.4 percent of advanced degree-holders studying abroad. The same domestic bent is evident in the law firms that employ Outstanding Lawyers. Only 1.3 percent of awardees work for China’s eight best-known corporate law firms, an elite group known as the Red Circle. Instead, the vast majority of honorees work for domestic law firms virtually unknown outside China and often little known outside their home province.Footnote ⁴³

TABLE 2.

Outstanding Lawyer Award (2005–2014), Descriptive Statistics

What summary statistics cannot capture, however, is how winners’ biographies embody a vision of how lawyers can and should participate in politics. First, awardees are routinely found offering legal advice to the local government, sometimes directly and sometimes by writing proposals for the local Chinese People’s Political Consultative Conference (CPPCC) or helping draft legislation. These lawyers are highly politically embedded, meaning that they have close individual and organizational ties to the state (Michelson Reference Michelson2007).Footnote ⁴⁴ In fact, a score sheet used by the Hunan bar association to rank nominees purposefully weights ties to government and includes a litmus test for loyalty. Nominees win points for serving the state in a variety of roles—as a legal advisor, in the bar association, in the local People’s Congress, and in the CPPCC—as well as for previous government awards. In addition, the category of “ideological quality” (思想品质) reserves points for “endorsing the leadership of the party, the Constitution, and the socialist system” and for a record free from complaints or administrative punishment (Hunan Provincial Bar Association 2016). In keeping with these criteria, some award winners offer full-throated support of the Party, such as Heilongjiang Outstanding Lawyer Xu Guiyuan’s statement that “to walk with the Party is right,” and that Party leadership is “irreplaceable” (Guo Reference Guo2010). Others are less direct, framing their political loyalty as part of a social responsibility to defuse social conflict. Henan Outstanding Lawyer Liu Yongtian explains the logic this way: “if lawyers can fully participate in political work, they can play a positive role in lessening social conflict and maintaining stability” (Liu Reference Liu2016).

In the public interest sector, the award honors lawyers who specialize in large-scale direct service provision.Footnote ⁴⁵ 15.8 percent of Outstanding Lawyers have a significant public interest practice, defined as routine representation of poor or disadvantaged clients. This is a group committed to individual legal aid, defined in implicit contrast to activist lawyers who lack the imprimatur of state support and are far more likely to use litigation as a tool of advocacy. Although many Chinese lawyers take some pro bono work, the National Outstanding Lawyer Award recognizes those who volunteer on a different scale. Awardees are routinely cited for handling hundreds of legal aid cases a year, or thousands over the course of a career, with a handful even working in government legal aid offices.Footnote ⁴⁶

Third, Outstanding Lawyers participate in politics by helping the state navigate thorny disputes. Lawyers can mediate between angry citizens and the government, often advocating compromise or convincing complainants to give up claims without a legal basis. Jilin Outstanding Lawyer Xiu Bao, for example, used his own money to fund a legal-aid center designed to help petitioners resolve complaints through law.Footnote ⁴⁷ “If only I had encountered Xiu Bao earlier,” one long-time petitioner told the National People’s Congress newsletter, “I would not have needed to go down the hard road of traveling to Beijing to petition” (Chen and Zhao Reference Chen and Zhao2011). In this way, awardees straddle the gap between the state and its citizens by serving as all-around trusted interlocutors. A People’s Daily profile of Sichuan Outstanding Lawyer Yang Yunkui describes this dual-facing role: “in the hearts of the masses, [Yang] is a big lawyer who protects the interests of ordinary people. In the eyes of the government, he is a good helper in mediating disputes” (2015).

Many Outstanding Lawyers also vocally endorse limits to political engagement. In contrast to colleagues willing to pursue a legal fight outside the courtroom or grandstand inside of it, many Outstanding Lawyers champion a more circumscribed role for the profession. Take, for example, Outstanding Lawyer Wei Xinming’s public criticism of other criminal defense lawyers. “Some lawyers” he says, “regard the courtroom as their own personal stage. [They are] eloquent, but [their behavior] is divorced from the problem of criminal defense and ultimately hurts the interests of their clients. This phenomenon must be eliminated” (quoted in Yang Reference Yang2014). In interviews, a number of Outstanding Lawyers echoed Wei’s sentiments, with many turning to words such as “illegal,” “excessive,” “irrational,” and “destructive” to describe activist lawyers and their tactics.Footnote ⁴⁸ “Injustice … needs to be solved in certain ways,” a Henan Outstanding Lawyer explained. Lawyers should “talk to judges about the law,” and avoid “extreme measures” (极端手段) such as interrupting court proceedings, making up facts, or blocking the doors to government buildings (ZH-1-2017). One Chengdu-based awardee finds these tactics particularly frustrating, since activist lawyers are screaming “not fair!” before a decision has even been issued and “there are normal tactics” (有正常路) they refuse to try (CD-02-2018). For an Outstanding Lawyer in Beijing, activist tactics are problematic not because of the goals they are trying to achieve, but because they force the state to “put the brakes” on reforms otherwise underway (BJ-13-2018). As another Beijing Outstanding Lawyer who claims friendship with many activist lawyers put it, they should not be trying to solve problems with their “bodies” (身体) instead of their “minds” (脑袋) (BJ-02-2017).

For Outstanding Lawyers, discomfort with activist lawyers’ tactics is typically coupled with faith in China’s trajectory. Optimism was a notable feature of our interviews and, especially following any kind of critique of legal institutions, interviewees frequently pivoted to recognize progress and express confidence in further improvements under the CCP. As an Outstanding Lawyer in Chongqing put it, “things may be far from the ideal, but at least they are much better today than they were before” (CQ-02-2018). So, even if it “requires generations’ worth of hard work,” an Outstanding Lawyer from Chengdu explained, “things will work out well in the end” (CD-05-2018). Optimism was also often accompanied by expressions of patience. Legal reform and societal change are slow processes, we were repeatedly told, and new ideas are only “slowly adopted” (CQ-02-2018). This is to say that legal reform “is a step-by-step process” (BJ-03-2017) that requires “steady development” rather than “revolution” (BJ-14-2018). Although this kind of patience is an individual virtue, it can also be a collective, political emotion cultivated by those in power. One of the CCP’s founding strengths was evoking an emotional response among supporters (Perry Reference Perry2002, Perry Reference Perry2013), and part of its appeal lay in the promised trajectory toward a communist utopia. Although the utopian endpoint has grown blurrier with China’s embrace of capitalism, the pursuit of perfection remains a Party theme. Critiques of the legal system can be palatable when leavened by faith in forward motion, a combination echoed in our conversations.

STATE-LED PROFESSIONAL SOCIALIZATION

Is China crafting state-sanctioned notions of appropriate professional behavior? Clearly yes. The state-promoted ideal of the good lawyer offers a multifaceted vision of the role lawyers should play in society. In public, the good lawyer professes loyalty to the Party and limits his or her advocacy to state-approved channels of political participation, such as case-by-case legal aid and providing input on new policies. In private, our interviews with Outstanding Lawyers suggest two key elements of the mentalité that frequently accompanies proper political manners: patience and optimism. China’s model lawyers share deep reserves of political patience about imperfections in the present legal system and vocally cultivate optimism about the future direction of legal reforms. This professional ideal, then, encompasses both an emotional orientation and a set of expectations surrounding public behavior. More broadly, it fits into our understanding of Xi Jinping’s China as an administration that attempts persuasion before falling back on repression (Shi-Kupfer, Ohlberg, Lang, and Lang Reference Shi-Kupfer, Ohlberg, Lang and Lang2017, 9). For Chinese lawyers, persuasion takes the form of professional socialization into the good lawyer ideal and serves to hedge against the possibility that punishing politically active lawyers could backfire into mainstream resistance. This ideal is communicated through many channels, including (but not limited to) the bar exam, the regulations governing the profession, and the Outstanding Lawyer awards.

Does the ideal of the good lawyer reach a receptive audience? China is not a “Leninist echo chamber in which central policies simply reverberate down the ranks,” as political scientist Elizabeth Perry writes, and a signal sent is no guarantee of a signal received (Perry Reference Perry2013, 23). Above all, this article sets the table for a research agenda on the varieties of professionalism circulating among the Chinese bar. What is needed is a less unitary picture of the profession itself, much as decades of sociolegal scholarship on the professional values and commitments of different types of lawyers have done for the American bar. Chinese lawyers are a variegated group and, as is often the case, fault lines in the legal profession trace differences in age, gender, educational background, geography, income, specialization (or lack thereof), client base, and practice setting. There is much to learn about which state signals are most visible to different groups and which prove persuasive. At the same time, there is also likely to be real resistance to the state’s effort to define a professional ideal. One possibility, for example, is that lawyers start questioning the state’s ideal as practice experience mounts and disillusionment grows. Legal sociologists Sida Liu and Terence Halliday find that work experience is positively correlated with politically liberal attitudes, such that more experienced criminal defense lawyers are also more likely to be motivated by concerns about justice, proceduralism, and constraints on state power (Reference Liu and Halliday2016, 81). Much more remains to be done, however, to map the arenas where Chinese lawyers encounter alternative, nonstate visions of professionalism and to understand when competing ideals gain traction.

For now, taking state-led professional socialization seriously helps complicate the cost-benefit analysis implicit in much writing on the relationship between lawyers and authoritarian leaders. To be sure, a quick tally explains a great deal about why most Chinese lawyers pay attention to what the state wants. Bouts of repression hammer home the potential consequences of legal activism, and the promise of social mobility lends allure to the good lawyer ideal. What this view of the legal profession misses, however, is the emotional draw of loyalism. In China, the tone of state-led legal professionalism is appealingly optimistic. Projections of the good lawyer are nestled into a narrative of progress, in which lawyers can help perfect the legal system. Hope and purpose help draw lawyers to the state’s vision for the legal profession, rather than relying exclusively on coercion and rewards. The state is selling a professional vision that gives even ordinary lawyers a way to find purpose in their work and confidence that some among them are making significant contributions to the state’s legal development project.

China’s state-curated image of the professional ideal is ground-breaking in two ways. First, China is now a “lonely, emerging superpower” more interested in blazing its own trail than following others (Ortmann and Thompson Reference Ortmann and Thompson2016, 40).Footnote ⁴⁹ Justice with Chinese characteristics, long an obligatory slogan, is increasingly concrete, and the “China model” is now treated in American public discourse as the key twenty-first century challenger to the ideological supremacy of liberal democracy (Gallagher Reference Gallagher2017, 46; Liebman Reference Liebman and Chen2017). Seen through this lens, the relationship between the Chinese state and the legal profession is worth watching closely as it may inspire imitation. At the same time, however, it is also unclear if these professional norms will resonate in another setting. In particular, the theme of collective striving, and the belief that a better world is close at hand, has always been core to CCP’s narrative about itself and about the country. Upbeat emotions help sell the Chinese state’s message, yet may prove hard to replicate.

Second, China’s approach to professional socialization shows considerable flexibility, visible in the relatively rapid redefinition of standards for acceptable professional behavior. Less than a decade ago, activist lawyers faced “mixed signals about which types of acts will be deemed transgressive and which will be tolerated” (Stern and O’Brien Reference Stern and O’Brien2012, 176). Today, in contrast, an explicit list of off-limits activities is written into law. How are activist lawyers faring now that signals about proper comportment are loud and clear, rather than mixed and muted? Despite excellent recent research, this is an area in which fieldwork rapidly becomes outdated. New work needs to investigate whether perceptions of mixed signals and uncertainty persist, perhaps because rule-breakers rarely land in trouble or there is more tolerance surrounding certain topics. Or, increasingly clear signals may be pushing activist lawyers in two directions: to embrace circumscribed advocacy through sanctioned channels or to marry a determined deafness to expectations with a willingness to weather the consequences.