Law Without Lawyers

A Comparative View Of Law In The United States And China

Victor H. Li

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429726354
• Edition: 1
• Topic: Law
• Subtopic: Civil Procedure
• Index: Law

The U.S. has 400, 000 lawyers in a society of 200 million people. China, a country with four times that population, has a mere 3, 500 lawyers. How do the Chinese achieve law without lawyers? Victor Li, one of the world's leading authorities on Chinese law, explores the way the Chinese and U.S. systems have historically viewed law (and still view it), and the way each system functions in everyday life to shape conduct and control deviance. In a straightforward and highly readable manner, the author examines how these highly divergent societies operate. He writes about historical forces and cultural values that are centuries old—and that are still critical influences in shaping life in modern America and China. In explaining the differences in the tradition and operation of law in these two cultures, Li gives us both an invaluable understanding of Chinese society today and his own appraisal of the strengths and weaknesses of U.S. law, lawyers, and courts.

Chapter One
A Window and a Mirror

IN 1974 A BENCHMARK in the American legal system was passed: The number of lawyers in this country reached 400,000. We should pause on that figure for a while because it is truly astounding. Four hundred thousand lawyers means that approximately one person out of every 500 in our population is a lawyer. Since most law school graduates are at least 24 years old, and if we arbitrarily define an adult as a person over the age of 24, then approximately one out of every 250 adults is a lawyer. Further, since until recently very few women were in the legal profession, approximately one in 125 adult males is a lawyer! The ratio would become even smaller if one corrected to find the number of lawyers in the population of adult white males between the ages of 24 and 65.

Equally striking is another benchmark involving personnel that was also surpassed in 1974: The number of law students in the United States reached 100,000. Clearly, our national trend is toward having an even larger percentage of the population function as lawyers in the future.

The arithmetic alone is overwhelming, but it is not only a question of numbers. In addition to sheer quantity, lawyers hold many of the key positions in government, the economy, and society in general. To the extent that income and the market mechanism are a reflection of value or importance, lawyers are obviously one of the key components of American society.

If one looks at the same personnel questions for China, a vastly different picture develops. The largest number of lawyers ever claimed by China was 3,500 (in 1956), or slightly fewer than the number of lawyers practicing in the city of Baltimore, Maryland. And even these ceased practicing law in the Western sense of the term after the late 1950s. This number is somewhat inaccurate. I would estimate the number of law school graduates in China to be about 10,000 or a little higher. In addition, there are an unknown number of people who have received on-the-job training in legal-type work, perhaps supplemented by more formal short-term, in-service training. Nevertheless, however one adjusts for these figures, there is still a glaring difference between the number of lawyers in the United States and in China. China, a country with four times our population, has only 1 to 2 percent of the number of lawyers in the United States. The difference can also be seen in the number of law students. At present there are three or four law schools operating in China; the Law Department of Peking University, probably the largest of these, has a total student body of only about 200.

The consequences of not having a large cadre of legal specialists are important. On a very simple level, even if China wanted to adopt American legal theory and structure, the Chinese legal system would function very differently since it would be staffed by a few thousand instead of 400,000 specialists. Conversely, as China has only a few thousand legal specialists, it should not and would not think of constructing a complex legal system (such as exists in the United States) which requires the services of a very large number of professionally trained people.

With so few legal specialists, the Chinese legal system must, of necessity, be simple in structure, method, and content so that relatively untrained people or even members of the general public can play an active role in the legal process. But the emphasis on simplicity goes beyond this. The Chinese maintain that law ought to be simple: How is law to serve the masses if the masses cannot readily understand or easily use the law? This may be making a virtue of necessity, but I think it goes much deeper. The underlying principle is that law should be, and indeed must be, broadly based rather than the special province of a group of elite professionals. In that way, law becomes a tool by which the masses can carry out their wishes, rather than a set of rules for the use of the legal profession alone.

We obviously part ways with the Chinese on this point. The differences are partly historical. Over the centuries we have developed a body of legal institutions and practices and a cadre of legal professionals. Even if we wanted to get rid of them at this point, we would be unable to. In addition, there is also a philosophical difference. We seem less fearful of the consequences of elitism. Indeed, we may feel that a system of elitism based on knowledge and skill is a desirable thing; also we may doubt the ability of the masses to manage their own affairs.

A Comparative View

Going beyond the simple level, what can we learn from examining the legal systems of two societies, one using a large number of legal specialists and the other apparently managing to have law without lawyers? The making of such comparisons is a healthy thing to do since it gives us a means of measuring another society while at the same time it forces us to examine our own values and measures. But comparisons must be carried out very carefully so that we end up weighing equal or similar things against each other rather than trying to match apples against oranges.

Comparative law has been an important method of study for two centuries, yet with a few notable exceptions it is still an intellectually underdeveloped area. In the usual course, scholars look at the legal system of another society and find whole institutions or small tidbits that may surprise, dismay, or amuse. On occasion, we might come across an idea worth copying. Yet what this kind of study does not produce is a thorough understanding of how law operates in the context of the historical development and present political/economic conditions of that society. From a different perspective, these studies often do not adequately investigate the question of whether there are legal concepts, institutions, and methods that remain valid and useful independent of the specific conditions of any particular society.

Historically, and to an extent even now, a principal method of comparative legal studies has been the following: One examines one's own legal system and identifies its most important and fundamental characteristics. These might include the presumption of innocence, right to counsel, judicial independence, or even trial by jury. Each person can make his own list according to his own beliefs and preferences. A "comparative" study is made by seeing how many of the items on this list also appear in the foreign legal system. Depending on the extent of congruence, the foreign system is graded from "good" to "bad," or, in more correct historical terms, from "civilized" to "uncivilized." Societies falling in the first category are treated as equals, while those falling in the second category are denied participation or allowed only partial participation in the international community. In order to become a full participant, the foreign society must upgrade or "modernize" its legal system. Since the measure for acceptability was the list of fundamental characteristics described above, and since for international law purposes the measuring was done by Western states, modernization usually meant Westernization.

Universal Law?

This manner of making comparisons does not stem merely from cultural chauvinism or intellectual laziness, although these factors do play an important role. More positively, there is a tendency on the part of many people, laymen and lawyers alike, to think of law as Law. That is, there is a certain logic and rationale to how a legal system ought to operate that gives law, or rather Law, a substance and existence that is independent of its connections to any particular society. This belief derives in large part from law's early close association both with religion and with Natural Law philosophy, which held that certain basic concepts and principles are applicable to all mankind. Thus, our own legal system, for all its imperfections, still contains the basic elements of Law. If we can identify the fundamental characteristics of our own legal system, such as the presumption of innocence or of judicial independence, we are likely also to have identified the fundamental characteristics of Law. Consequently, the fundamental characteristics of our legal system are valid criteria for measuring the quality and worthiness of a foreign legal system.

The elevating of law to Law is not necessarily undesirable. In particular, it assists in ensuring compliance. But this approach should not be carried over to comparative legal studies. It does not seem to me, or at least it has not been shown to me, that there is a single law, the fundamental characteristics of which are the same for all societies. On the contrary, I think that law is a social mechanism that helps society function in a harmonious and efficient manner. The precise content and manner of operation of this mechanism is determined by the needs, problems, resources, cultural preferences, and historical development of a particular society. Since these factors may vary greatly from society to society, one would also expect that law (or its equivalent) would correspondingly vary, both in content and in style, from society to society. Thus, one might expect the French and German legal systems to be somewhat different but not very different, while there should be enormous differences between the legal systems of Europe and China.

What the method of comparison described above accomplishes is to measure the degree of similarity between two societies. It does not tell us much about how the foreign legal system operates or whether the foreign methods, different though they are, might be well suited for the conditions and needs of that society.

I am not suggesting that we are incapable of making value judgments about another society because each society can be judged only on its own terms. The use of torture, for example, should be generally condemned. What I am saying is that even if we assume the fundamental characteristics of our legal system to be "good" and "civilized," it does not necessarily follow that a foreign legal system which is different from ours is therefore "bad" or "uncivilized." It may be different and still properly serve the needs of that society.

The Rule of Law

By way of illustration, the historical development of law in China has taken a path very different from that of the West and consequently has produced some very different results. The concept of the "rule of law" is one of the philosophic and political cornerstones of Western society. Yet in China, this term was used in a critical or derisive way, at least until the end of the 19th century. In traditional Confucian terms, a ruler should govern by means of virtue rather than law. That is, through a painstaking process of socialization and education, the people first learn and then internalize the rules of proper behavior. Only when a person is an extreme recalcitrant or when the educational system has broken down would it be necessary to use the severe sanctions of law. If society is functioning harmoniously, law is something to be avoided—even feared. Thus, a ruler who governs by the "rule of law" is admitting the loss of virtue and the breakdown of the system of education. (I should note that other philosophical schools in traditional China, particularly the Legalists, did not view law in such an unfavorable light.)

Two quotations from Chinese and English sources highlight the difference concerning the rule of law. In the 6th century B.C., a Confucian scholar criticized the promulgation of an early criminal code:

The ancient kings taught the people the principles of sincerity, urged them on by their own exemplary conduct, instructed them in what was most important, called for their services in a spirit of harmony, came before them in a spirit of reverence, met exigencies with vigor, and made their decisions with firmness In this way the people could be successfully dealt with, and misery and disorder be prevented from arising.

When the people know what the exact laws are, they do not stand in awe of their superiors. They also come to have a contentious spirit and make their appeal to the literal words, hoping peradventure to be successful in their argument. They can no longer be managed.

The argument is that more laws do not make for a better and more harmonious society. On the contrary, the emphasis on law makes people more litigious and loophole-happy, and also diverts attention away from the more important work of moral education. Compare this view with a "Western" attitude toward law expressed by Sir Thomas More in Robert Bolt's play, A Man For All Seasons:

And when the last law was down, and the devil turned round on you—where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast—man's laws, not God's—and if you cut them down—and you're just the man to do it—d'you really think you could stand upright in the winds that would blow then?

A Quest For Functional Equivalents

In addition to raising questions about the role of law in different societies, the use of a comparative approach presents several other more subtle, though no less serious, problems. By using our own legal system as the starting point, we necessarily look for those things in the foreign legal system that are considered important in our own. The courts, for example, occupy a crucial position in our legal system. Under our governmental system the courts act as the final arbiters of disputes and ultimate interpreters of the law. In addition, the public visibility of the courts and even the emphasis on case law in legal education add to the prominence of the courts.

But in China, traditionally, the court was a place to be feared and avoided. Even today, the courts in China do very little. Much of the work of controlling antisocial behavior is handled at the peer group level or through administrative sanctions; industrial and interenterprise disputes are resolved by administrative agencies and tribunals; and except for dwellings and minor personal effects, there is little private property to disagree over. This leaves the courts only two general categories of cases—contested divorces and very serious criminal cases. Given these limited functions, it would be a mistake to focus a great deal of attention on the Chinese courts and to draw conclusions about the entire legal system on the basis of observations made about the courts. Conversely, major concerns about the courts in our system, such as judicial independence or judicial activism, are of far less importance in China.

Perhaps the most striking example of having to look in unexpected places to find functional equivalents in the American and Chinese legal systems concerns the body of statutory, judicial, and other legal materials. The Stanford Law Library, for example, contains over a quarter of a million volumes of legal materials that describe, often in excruciating detail, the legal rules and institutions that govern our conduct. In China, the total number of volumes of statutory material, judicial decisions, legal treatises, and the like published since 1949 would not fill a small bookcase. Does this mean that there are no laws or rules in China? Hardly so. To draw such a conclusion from the fact that China lacks the expected quantity of what we consider the usual legal materials would be another example of reaching the wrong answer because we asked the wrong question in the first place.

Instead, we have to look elsewhere for the means by which legal norms are communicated. The mass media, such as the People's Daily, play a major role in this regard. A Chinese newspaper, unlike an American newspaper, is not a chronicle of daily events but rather a means by which messages are sent from the center to the intermediate levels and then to the bottommost levels. These messages urge particular types of conduct—criticize revisionism, carry out the principle of self-reliance, etc.—and also lay down some general guidelines on how this work should be carried out. Good consequences ensue for those who carry out these urgings, and less pleasant consequences follow for those who do not. Is this law? No, not in the sense that we are accustomed to; among other things, it lacks the precision and the use of legal institutions and mechanisms that we regard as part of law. And yet it does lay down norms of conduct, norms backed by the enforcement mechanism described later in the book.

The Reach of Law

The use of our own legal system as a starting point for inquiry not only focuses our attention on certain matters, but also turns our attention away from others. At the simplest level, in thinking about our own legal system we associate particular institutions and activities with law. Thus, in the area of criminal law, some of the obvious avenues of inquiry concern search and seizure, arrest, bail, plea bargaining, trial, sentencing, and imprisonment. Yet, as will be seen, these are not the areas of primary importance in the Chinese criminal process. Most of the crucial actions and decisions take place at the peer group level, sometimes with the participation of a local patrolman. Only an extremely small proportion of the cases involving antisocial or criminal conduct ever reach the level of arrest, much less the subsequent steps. By focusing on these latter steps, we would miss the great bulk of the actual Chinese "criminal law" system.

More fundamentally, when we define what is law in the American system, we are also defining what is not law. The determination of what a legal matter is centers around considerations concerning who the actors are (policemen, lawyers, etc.), which institutions are involved (legislature, governmental agency), and what forms and mechanisms are used (contract, will). This leaves out very large parts of human activity. In the area of criminal law and the control of antisocial conduct, for example, childhood and adult socialization processes, religious influences, and education are generally excluded, even though they are far more important factors in forming and controlling conduct than criminal codes and policemen. And indeed, these "nonlegal" areas are the most important aspects of Chinese "criminal law."

Along a somewhat different line, criminal law in our system consists basically of prohibitions against certain severe or extreme kinds of conduct: don't rob banks, don't assault your neighbor, and so forth. Transgressions of these rules lead to a clearly identifiable procedure for determining liability which is handled by designated legal officials and institutions. The entire process is stigmatized as "criminal." In China, however, it is difficult to distinguish between the manner in which a "criminal" matter—as opposed to a social, moral, or political matter—is handled, or between the kinds of sanctions imposed. Thus, a person who punches ...