Liu and Halliday have written a timely book on the besieged legal profession in China, with a particular focus on criminal defence lawyers. The work places the politics of lawyers in China in a larger historical and comparative perspective and offers much-needed heavy lifting in conceptualizing lawyers’ struggles for the rule of law and state repression. The book provides a useful guidance for understanding the motivation of lawyers in advancing their limited liberal political agenda and the future prospect of political lawyering in China’s authoritarian state.
The book categorizes Chinese criminal defence lawyers into four ideal types: progressive elites who are liberal-leaning but with strong ties with state institutions, in particular the police–prosecution–court (PPC) alliance; pragmatic brokers who are embedded firmly in the PPC and use their social capital in legal practices mainly for their own career advancement; political activists who practise law for political transformation; and routine practitioners who, neither embedded nor politically motivated, practise law to make a living. Activist lawyers are further divided into two subsets of notable activists and grassroots activists to capture the difference in their social status, defence strategies, and the risks they face.
What divides the lawyers, according to Liu and Halliday, is their political values, namely whether or not lawyers subscribe to certain liberal values, such as respect of basic legal freedom and control of state power, and whether those liberal values manifest in their defence work. Whether a lawyer manifests a liberal value orientation is strongly correlated with the degree to which the lawyer is embedded in state institutions, defined as the lawyer’s past and existing affiliations and connections with state institutions, PPC in particular, or officials working in those institutions. It is the combination of value orientation and embeddedness that forms the foundation for the authors’ categorization of lawyers.
As the authors rightly point out, lawyers who are embedded in the criminal justice system are more effective in offering their criminal defence and the social capital of embedded lawyers appears to be able to open many doors in the criminal process that are firmly closed to other lawyers. More significantly, embeddedness also shapes the political value of criminal defence lawyers. Liberally motivated lawyers, for example, tend to have little if any PPC experience. On the contrary, pragmatic brokers, who are firmly embedded in the PPC complex, clearly prioritize crime control over due process.
But, beyond what lawyers say about what they believe in, what does embeddedness mean in the specific context of criminal defence and in the routine practice of criminal defence lawyers? Embedded lawyers are of course more effective in their work and encounter fewer difficulties when meeting clients in detention and in gaining access to files. Embeddedness thus acts like speed money in corrupt bureaucracies and it facilitates lawyers’ legal practices in a hostile political environment. In that sense, embeddedness contributes to effective defence and better protection of rights for both lawyers and their clients. That is, because of their embeddedness, lawyers can do what the law allows them to do.
But pragmatic brokers often have a bad reputation, as the book alludes to, and, to a degree, embeddedness has the connotation of collusions in which lawyers conspire with police, prosecutors, or judges in subverting the legal process. In civil justice, embeddedness implies judicial corruption. But criminal justice works differently and there is an intrinsic contradiction in making sense of what embedded lawyers actually contribute. Lawyering has long been a socialized profession in China and criminal defence lawyers work principally to protect the interest of their clients. In that context, the meaning and implications of embedded defence lawyers become uncertain. Embedded lawyers may be conservative, pro-state, and give less value to procedural justice, as the book has carefully documented, but how that illiberal orientation of lawyers is translated into their practice of criminal defence is not certain. What objectives does pragmatic brokers’ collusion with PPC serve? Would defendants be better off or worse off once the deals are done?
Notwithstanding all the fine differences amongst the criminal defence lawyers, the book makes a powerful statement that lawyering in general and criminal defence in particular are principally a liberal enterprise. Legal professionalism, historically and comparatively, matters the most in promoting liberal values because “lawyers have notable advantages in political mobilization because they are often uniquely able to exercise moral authority in the name of technical competence” (p. 12). Most of the criminal defence lawyers may not aim at any political transformation in their daily legal practice, but the profession exists to protest the legal rights of criminal suspects/defendants and to challenge the arbitrary exercise of state powers. Through their routine legal practices, lawyers hold the state accountable for its rhetoric.
It is precisely their autonomy from, and the challenges to, the state that explains the state control and repression that Chinese lawyers face. Careful readers will find a depressing story in the book about the demise of the profession: critical bar associations have been made compliant; vibrant virtual legal communities have been silenced or shot down; progressive lawyers have been harassed, disbarred, and prosecuted; and the overall political atmospheres for lawyers have become prohibitively harsh.
But the principal argument in the book strikes a positive tone and authors provide adequate evidence to show that there is light at the end of the tunnel. Paralleling a repressive trajectory, the book carefully documents the rise of progressive lawyers of different kinds who, against all odds, have been resilient in fighting for transparency, accountability, and the rule of law in China’s increasingly authoritarian system. As state repression escalates, lawyers’ struggle continues. Lawyers have, on their own, built alternative legal communities independently of the state and the bar associations that it controls; they have reached out to women, workers, LGBT groups, house churches, and other vulnerable communities to join their causes and at the same time to bring their sufferings to proper legal and social fora. Increasingly, lawyers are developing an alternative legal complex, composed of lawyers, media including social media, legal academics, and a wide range of civil society groups in contest with the PPC. At the same time, lawyers are a meaningful part of a larger force to rebuild China’s legal complex in which lawyers are invited in and police may be forced out.
In analyzing and forecasting lawyers’ struggle for freedom and accountability in China, the book sends out a strong reminder that lawyers’ struggle in China is not sui generis. Historically and comparatively, Chinese lawyers contribute to a global endeavour. Where there are lawyers, there are entrenched battles to hold the government accountable. China is not exceptional in this. As the authors put forcefully: “the burden of proof lied upon those who would insist that liberal-legal impulses seen across many varieties of illiberal regimes over several centuries make China the one exception” (p. 137).
