The Rule of Law with “Chinese Characteristics”

I spent last week in China leading a spring break trip for 38 of my current and former environmental law students. I had warned the group that they would be shocked by how polluted the air was and that tap water was not safe to drink even in the best hotels. But when we arrived in Beijing the skies were the clearest I had ever seen during my 21 previous trips to China (including the six months I lived in Beijing in 2008 while teaching at the China University of Political Science and Law (CUPL)). Alas, the clear skies were not the result of dramatic environmental improvements in China. Instead they were the product of 40-50 mph winds that temporarily had blown away the pollution, which soon returned.

On the morning of our first full day in China our initial stop was Tiananmen Square, site of the 1989 massacre of pro-democracy protesters. Our group was allowed to bypass the security screening that the Chinese public must undergo before entering the square. While posing for a group photo, I was surprised when a member of our group unveiled a large banner that read “Thank You, Suzann” to honor our program coordinator who helped organize the trip. Fearing that this was some kind of political protest, Chinese police immediately converged upon our group. Our local guide started shouting that we might get arrested. But the confrontation was averted when we rolled up the banner and the police accepted our explanation. But it was a quick reality check on the limits of free speech in China today.

During our nine days in China our group visited public interest groups, law firms, and law schools in addition to tourist sites in Beijing, X’ian and Shanghai. In our meetings with Chinese students, lawyers, and law professors the group gained some insights into what it is like to operate in a legal system without an independent judiciary or a tradition of respect for the rule of law. One lawyer at a Chinese law firm in Shanghai described it as “the rule of law with Chinese characteristics.”

The public interest movement in China remains deeply frustrated because Chinese courts frequently refuse to accept even the most meritorious lawsuits. I spoke about the BP oil spill settlement at a workshop organized by the All China Environment Federation (ACEF), a group of environmental lawyers founded in 2005. ACEF represents a group of 107 fishermen who were harmed by last summer’s ConocoPhillips oil spill in Bohai Bay. But the Tianjin Maritime Court has refused to accept their lawsuit. Our group also visited the Center for Legal Assistance to Pollution Victims (CLAPV), which operates a hotline to field environmental complaints from all over China.

Zhang Jingjing from the Public Interest Law Network’s Beijing office, who has been dubbed “the Erin Brockovich of China,” met with our group and expressed hope that the National People’s Congress eventually would adopt new legislation to facilitate public interest lawsuits. Our group also met with Zhenxi Zhong from Shanghai Root and Shoots, one of the few NGOs officially licensed by the Chinese government. Roots and Shoots, a group initially formed by Jane Goodall, is working in more than 200 schools in the Shanghai area to improve environmental education.

There are now more than 20,000 lawyers in Beijing and 14,000 in Shanghai. We visited a U.S. law firm’s Beijing office and a Chinese law firm’s Shanghai office where we had remarkably candid discussions of the challenges of legal practice in a country where politics trumps law. The U.S. law firm is not licensed to practice law in China so it hires Chinese law firms to implement its work product. It prefers to avoid the Chinese courts by using arbitration whenever it can. Aware of the Foreign Corrupt Practices Act, the U.S. lawyers have the Chinese law firms they hire sign non-corruption pledges.

The Chinese law firm in Shanghai hosted our group for its Friday afternoon discussion session. Their members explained that judges in China do not have to be lawyers and many of the most prominent judges are not lawyers, but rather were selected because of their strong ties to the Communist Party. Witnesses rarely come to court in China even when they are asked to do so. Disputes over siting new industrial plants usually are resolved not based on the law but on political power. Localities eager to attract industry make required environmental assessments a perfunctory exercise and local officials try to pressure lawyers not to bring environmental challenges. Siting decisions for power plants and new industries usually are made without consulting the public and there is little chance for lawyers to block them in court. When they are blocked, it invariably is due to the ability of opponents to generate sufficient public opposition to a project, rather than due to enforcement of the environmental laws.

There is some sense that change is in the air, a perception encouraged by China’s upcoming leadership transition and Premier Wen Jiabao’s public pleas for greater political and economic reform. The Chinese law students we met were hopeful that one day China will have an independent judiciary and strong respect for the rule of law. These students included moot court teams from CUPL and the Beijing Institute of Technology who did a practice round for us in advance of their coming to the U.S. to compete next weekend in the finals of the Stetson International Environmental Moot Court Competition.

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4 Responses

  1. Lawrence Cunningham says:

    Fascinating report. What a great way to spend spring break, for you and your students, past and present! Two broad queries:

    1. Any news of the influence of the rule of law programs at Peking University (started a few years ago by Jeff Lehman, formerly Dean of Michigan Law and president of Cornell) or the one run by Temple University (started years ago by former Temple Dean Robert Reinstein)?

    2. Whatever the relative power of politics and law in China, do people appreciate the great distance between the ideal and the reality in the United States? There continue to be egregious instances in the U.S. where “politics trumps law.”

  2. Ray Campbell says:

    It’s a bit early for Peking University’s School of Transnational Law to have had much influence inside the Chinese system just yet. We graduate our first class this spring. With a faculty mainly drawn from the US and Europe, and with few of us fluent in Mandarin, faculty influence on China also has been indirect.

    That said, things are going well. We’re still a start up but things are falling into place. The students are amazingly good. Support from Peking University and of the city of Shenzhen (where we are located, next to Hong Kong) has been strong. Our students, among the very best in China, are graduating with a good understanding of Western culture and western legal systems, and will carry that with them to jobs in international firms, Chinese firms, multinational corporations and government. We are starting a law review, and our students have had success in the Jessup and Vis international moot court competitions. Over time, our influence will depend on many things (whether we are considered to be a ‘legitimate’ US style school by the criteria available to judge that, the success of our students, the excellence of our faculty) but there is extraordinary potential to play a meaningful role.

  3. Robert Percival says:

    The question whether people in China appreciate the gap between the ideal and the reality of U.S. law is an important issue. Given the state of their legal system, far too many Chinese students assume that U.S. law is perfect by comparison. One of my friends who teaches a course in U.S. public interest law in a Chinese law school reports that his students praised him for being their first professor to emphasize that the U.S. legal system is not perfect. The students reported that it actually gave them more hope to learn that it also was a struggle for the U.S. to reach the point where its legal system is at now.

    In my talk at the Chinese law firm in Shanghai I discussed the political flak our environmental law clinic has taken for suing the poultry industry for polluting the Chesapeake Bay. I noted that I had responded to this criticism by arguing that this is what often happened in China, but that it should not happen in the U.S. Unfortunately it does, and we must be careful not to lead the Chinese into thinking it is never a problem in the U.S.

  4. Ray Campbell says:

    My experience has been that many Chinese are actually pretty quick to note imperfections in the US political, judicial and economic systems, and on occasion to see equivalencies where things in fact are not really all that similar. It really depends. In general, Chinese students are more trusting and less cynical than US students of a similar age, and some glorify the west in the same way certain people in the US romanticize the east, but I don’t think it would be correct to draw a conclusion that all Chinese students or lawyers think our system works all that well. The preference for arbitration, for example, reflects concerns about the Chinese system, but it also reflects concerns about the US system.