To cite one among many possible examples, in an article on the role of judges
and lawyers in defending rule of law, Adama Dieng (1997: 551) claims that the
“experiences of many generations of jurists from highly diverse nationalities”
demonstrate that rule of law requires an independent legal profession. For
similar such claims, see the citations in Lee (2000: footnote 39).
See Chapter 3. Geoffrey Walker (1988: 36–37) is an exception, as he explicitly
includes a competent and independent legal profession among the requisites
of a thin theory of rule of law.
Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations
Congress on the Prevention of Crime and Treatment of Offenders, held in
Havana, Cuba, August-September 1990, and welcomed by the 45th General
Assembly of the United Nations in resolution 45/121, adopted December 14,
1990. The Basic Principles cite several international rights documents that
require access to counsel, particularly in criminal cases. China has signed
two of them and ratified the second: the International Covenant on Civil
and Political Rights, and the International Covenant on Economic, Social
and Cultural Rights. The Universal Declaration of Human Rights (UDHR)
contains similar provisions requiring a fair and impartial trial in which the
accused “has had all of the guarantees necessary for his defence. ” Scholars are
divided on whether the UDHR is legally binding in whole or in part or not at
all on members of the United Nations.
Abel (1995: 20–21) notes, however, that on the whole the South African legal
profession failed to champion rule of law and that “the vast majority of
practitioners and the organized profession actively or passively supported the
government. ” More generally, while the legal profession in Ghana and Malaysia
supported the judiciary against attacks by the authoritarian ruling regimes,
the legal profession failed to oppose McCarthyism in the USA, the German
occupation of France, or Fascism in Italy. Abel (1995: 10).
Macauley (1998). On the importance of law in practice, see generally Scogin
(1990: 1325–1404); Bernhardt and Huang (1994).
While never promulgated, the 1906 draft Qing Criminal and Civil Litigation
Law included a chapter on lawyers. This law was revised in 1911 as the Draft
Criminal Litigation Law and Draft Civil Litigation Law. However, the Qing
dynasty toppled before these laws took effect. Xiao Shengxi, ed. (1996: 30).
These regulations were supplemented by more detailed regulations on registration, disciplinary actions, and examinations of lawyers. Conner (1996:
216); Xiao Shengxi, ed. (1996: 30–32).
Growth then slowed over the next decade, so that by 1943, there were only
9,245 lawyers registered with the MOJ. Conner (1996: 230).
By way of comparison, Japan in 1935 had one lawyer for every 9,700 people.
Conner (1996: 230).