China's Long March toward Rule of Law

By Randall Peerenboom | Go to book overview

8
The legal profession: the quest
for independence and professionalism

A competent and independent legal profession is generally assumed to be necessary for rule of law. 1 Thus the original law and development movement in the 1960s made legal education reform and legal training a high priority. 2 Even today, the new law and development movement continues to take the establishment of a competent and independent legal profession as one of the cornerstones of rule of law and to devote considerable resources to the education and training of lawyers. 3

Although most thin versions of rule of law do not include express reference to the legal profession among the listed elements, 4 most advocates of thin theories take care to point out that the stipulated elements are not meant to be exhaustive and that rule of law requires in addition various institutions, of which a legal profession is one. Indeed, the need for a legal profession follows from typical elements of a thin theory. The requirements that laws be published and that there be congruence between law on the books and law in practice assumes that there are legal professionals to interpret and apply rules. Impartial and fair trials require representation by someone who knows the law and is independent of the judges deciding the cases and the political authorities who made the laws.

Not surprisingly, an independent legal profession is a prominent feature of thick conceptions of rule of law that emphasize human rights. Thus the United Nation's Basic Principles on the Role of Lawyers proclaims that “adequate protection of human rights and fundamental freedoms to which all persons are entitled, be they economic, social, cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession. ” 5

The legal profession's relationship to rule of law may be characterized in terms of three general roles. The first focuses on the role of lawyers and others with legal training as the purveyors of technical legal skills

-343-

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China's Long March toward Rule of Law
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Preface ix
  • Abbreviations xvi
  • 1 - Introduction 1
  • Notes *
  • 2 - The Evolution of Rule of Law in China: the Role of Law in Historical Context 27
  • Notes *
  • 3 - Post-Mao Reforms: Competing Conceptions of Rule of Law 55
  • Notes 110
  • 4 - Rule of Law and Its Critics 126
  • Notes 175
  • 5 - Retreat of the Party and the State 188
  • Notes *
  • 6 - The Legislative System: Battling Chaos 239
  • Notes *
  • 7 - The Judiciary: in Search of Independence, Authority, and Competence 280
  • Notes *
  • 8 - The Legal Profession: the Quest for Independence and Professionalism 343
  • Notes 384
  • 9 - The Administrative Law Regime: Reining in an Unruly Bureaucracy 394
  • Notes *
  • 10 - Rule of Law and Economic Development 450
  • Notes *
  • 11 - Rule of Law, Democracy, and Human Rights 513
  • Notes *
  • 12 - Conclusion: the Future of Legal Reform 558
  • Notes *
  • References 599
  • Index 653
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