Jerome A. Cohen
Professor of Law, New York University School of Law
Putting Lawyers (of All Types) High on Professor Alford’s Future Agenda
Happily, this is neither an obituary nor a tribute to a retiring teacher, but an expression of thanks for the extraordinary number of years that William Alford has impressively devoted to the major challenges of academic administration at a great international law school. Yet this should also be seen as a celebration of liberation, marking a new period and new possibilities for the honoree’s already illustrious scholarly career. Given the daily increasing prominence of China and the still underappreciated significance of its distinctive legal system, he need not fear the dilemmas of Charles Lamb’s “Superannuated Man,” nor dread the observation of Henry Adams that “nothing is more tiresome than a superannuated pedagogue.”
Indeed, Professor Alford’s problem is precisely the opposite. A classic scholarly multitasker, he has too many temptations on his plate. In addition to continuing the innovative and stimulating teaching that has informed over three decades of the world’s future lawyers, law professors, and researchers to the benefits of studying comparative law, he will, of course, continue to lead the Harvard program in East Asian Legal Studies that has fostered the training of so many promising young scholars and produced so many distinguished contributions to learning and practical affairs. But what will be his future research priorities?
Professor Alford has already done much to build on and choose from. As he has demonstrated, China’s millennial legal traditions offer lifetimes of satisfying preoccupation and appear increasingly relevant to contemporary understanding. Chairman Mao Zedong’s revolution has become Chairman Xi Jinping’s imperious and, some would say, imperial rule. Professor Alford and his able academic partner and spouse Yuanyuan Shen have also sought to remind us of the importance of modern China’s family law, a subject that attracted great interest in the 1950s as one of the first legal consequences of communist “liberation,” but that has largely faded from public view despite the subsequent huge changes in Chinese society. Or he surely might wish to further develop our knowledge of China’s laws and practices relating to people with special disabilities, a field that he has done much to create and even to foster beyond academe. Also notable is his longstanding thoughtful concern for the roles that lawyers and their functional substitutes have played or ought to play in post-1949 Chinese political, economic, and social life, a topic that might well be extended to focus on intensifying restrictions on criminal defense lawyers and repression of human rights lawyers.
Yet there are so many other areas of comparative and international law relating to China that cry out for exploration and that would benefit from his attention. For example, the myriad complex constitutional and criminal justice problems revealed by the Central Government’s recent “takeover” of what in 1997 had been the United Kingdom’s “handover” of Hong Kong to the motherland could easily prove totally absorbing. And Beijing’s lack of success in attempting to impose “one country, two systems” on Taiwan has enabled the island’s talented and courageous people to establish a democratic legal system that is genuinely different from the mainland’s increasingly totalitarian counterpart and that warrants greater study for many reasons. So too does the emerging effort of the People’s Republic of China (“PRC”) to employ public international law in a powerful campaign to displace the United States as the dominant influence in the United Nations and related organizations. And Professor Alford would have much to say about the implications for the law of genocide and crimes against humanity of the horrors that the PRC persists in perpetrating in its Xinjiang and Tibetan regions.
The list of potential topics is long, and he will feel more than ever the tensions occasioned by the need to choose. Justice Brandeis wisely observed: “Self-limitation is the master’s mark.” Yet Robert Browning urged: “A man’s reach should exceed his grasp or what’s a Heaven for?”
Other contributors to this welcome Festschrift undoubtedly have their own ideas, but I want to take the opportunity extended by the invitation to participate to suggest that Professor Alford expand on his previous work relating to China’s contemporary lawyers and various functional substitutes operating in different arenas of a vast, diverse and all-too-opaque country. Perhaps it is not surprising that, as he has pointed out, we still know far too little about the “litigation sticks” as well as the courthouse scribes, innkeepers, and others who sought to assist, for good or ill, the defenseless targets of the criminal justice system of the Manchu-Qing dynasty, the last in a lengthy imperial succession. Yet, despite the obstacles created by the efficient secrecy of Xi Jinping’s Party-state, it seems more urgent to inquire systematically and comprehensively into the lawyers of today. Professor Alford and other students of the sociology of law have already told us a great deal, but, as they would be the first to admit, they have only scratched the surface, whetting our appetite to learn about 2020 realities.
There is, of course, more than a single “legal profession” in China at present, even if one excludes from consideration the large number of legally-trained participants at various levels in the overlapping government and Communist Party bureaucracies, the judiciary, the procuracy (prosecutors’ offices), the legislative institutions, the law school faculties, the government-sponsored research organizations, and the range of specialists who perform tax, accounting, intellectual property, labor, notarial, and other law-related functions.
There are many kinds of practicing lawyers in the PRC today. Most apparent to foreigners are the “big law” commercial law firms that now rival in numbers of licensed personnel and revenues the international firms that they have learned from and emulate. They often have multiple offices within the country and even some foreign offices. Some have created various forms of cooperation with foreign counterparts at home and abroad. Yet most licensed lawyers operate in medium- to small-size clusters, congregating in China’s many urban centers. There are also some—but far from enough—who work in more dispersed, rural areas where finding enough colleagues to form a firm often remains a challenge.
However, many other persons who are not licensed lawyers also perform a range of legal services as para-professionals. They usually receive official financial and other support and operate among people who are less well-served by licensed professionals, in urban as well as rural areas. Under a variety of names, they have rivaled the formal legal professionals in their numbers and in the quantity, if not the quality and scope, of legal service provided. Professor Alford astutely recognized and has long followed the tensions and developments that this too little appreciated competition has created in what he has termed “the battle over legal professionalism in China.”
A generation ago, in a series of publications, Professor Alford called our attention to this emerging phenomenon and the disturbing conflicts of interest and ethical infractions that both professional and para-professionals were encountering. One essay, attractively titled “Tasselled Loafers for Barefoot Lawyers,” particularly caught my interest.[1] Fifteen years later, in a detailed 2010 update, he gave the PRC’s non-professional “basic-level legal workers” another colorful sobriquet, christening them “rice-roots legal workers” because of their autochthonous involvements.[2]
To me, an interesting aspect of this latter essay was its brief discussion of what should be recognized as yet another broad category of unlicensed functional substitutes for legal professionals—genuine “barefoot lawyers,” those who not only lack “tasseled loafers” but are also so poor and uneducated that they utterly lack the background and training deemed desirable for “rice-roots lawyers.” Professor Alford selected as an example of “barefoot lawyers” the blind Shandong province rural activist Chen Guangcheng, whose initial efforts to use local courts to protect the rights and interests of fellow villagers attracted favorable national publicity in the earliest years of this century.
My personal acquaintance with Chen’s case is probably the main reason that I focus here on Professor Alford’s studies of Chinese lawyers and admiringly suggest that he devote substantial time to research on the professional/para-professional tensions and developments of the most recent decade.
I had met Chen when he and his extraordinarily devoted wife were State Department sponsored visitors to the United States in early 2003 and invited them to Beijing that fall while I was serving as a visiting professor at Tsinghua University Law School. After a long afternoon in a Beijing bookstore purchasing many surprisingly good “how to do it” pamphlets devised to help non-lawyers cope with legal problems, Chen invited my wife and me to visit his literally dirt-poor village in Shandong’s remote countryside. No one, he persuaded me, could fully appreciate the plight of “barefoot lawyers” and their “clients” without such a visit. Three days of interviews with Chen; his often penniless, elderly, disabled, and uneducated “clients”; and other villagers vividly illustrated the situation.
There were then five lawyers in the county seat, unlike some Chinese counties that had no lawyers whatever. But the local lawyers reportedly could not be relied on to take on cases of impoverished villagers who wanted to bring grievances against country government offices or the administrative village governments below them. There was no money in it for the lawyers. Moreover, being dependent on local officials for much of their work, the lawyers did not want to bite the hand that fed them. As an alternative, the local “rice-roots legal workers” were available in principle, but, because they were on the government payroll, they failed to inspire popular confidence in their independence. This had inspired Chen to attempt to fill the gap in legal services through his own self-study and initiatives.
Encouraged by the national publicity first accorded his efforts, Chen hoped to recruit at least two “barefoot lawyers” for each of over forty neighboring villages. With the aid of Beijing lawyers and law teachers, he hoped to organize informal training for these recruits at the only hotel in the area. In an effort to enlist help from the Tsinghua University Law School, I arranged for Chen to meet with the then dean and the deputy dean of the school plus the Beijing lawyer who was most active in supervising the school’s relevant clinical program. Chen, an articulate speaker, made what I thought was an effective presentation of the perceived need for training and his ideas for meeting it. Yet, except for the sincerely interested Dean Wang Chenguang, who later served as visiting professor at both Harvard and New York University law schools, Chen’s reception from the other two important legal figures was frosty, indeed embarrassingly impolite. They were hostile to assisting “barefoot lawyers,” who they were certain would only ruin their efforts to enhance popular respect for the legal profession. They gave no weight whatsoever to the fact that millions of rural citizens throughout the country had no meaningful access to independent legal services. As they ostentatiously read the day’s newspapers during Chen’s presentation, I was glad for once that he is blind.
Undeterred, Chen nevertheless asked me to take part in the proposed training. I agreed to do so but did not share his optimism. I warned him that county officials would never allow us to conduct training for almost a hundred would-be “barefoot lawyers” who could be expected to cause them nothing but trouble. Before we were put to the test, however, Chen was detained and placed under around-the-clock house arrest and ultimately convicted and imprisoned for more than four years because of his court challenges and other public opposition to the provincial government’s arbitrary punishments of the families of thousands of local women who had fled compulsory abortion and sterilization.
This personal experience led me to share Professor Alford’s belief that China’s government, the Communist Party, the Ministry of Justice, and the professional bar cannot remain indifferent to seriously inadequate legal representation, especially in the countryside, and should take vigorous steps to rectify the situation. This would improve—not damage—the reputation of China’s legal profession, and Professor Alford’s continuing strong support for this reform would surely speed its progress.
[1] William P. Alford, Tasselled Loafers for Barefoot Lawyers: Transformation and Tension in the World of Chinese Legal Workers, 141 China Q. 22 (1995).
[2] William P. Alford, “Second lawyers, first principles”: lawyers, rice-roots legal workers, and the battle over legal professionalism in China, in Prospects for the Professions in China 43 (William P. Alford, Kenneth Winston & William C. Kirby eds., 2010).
