Bottom-Up Legal Reform
McGiffert, Carola, The China Business Review
How one local law firm is helping to change the system
Feng Songlin is not your typical Chinese lawyer. Feng, the head of one of the largest private law firms in Nanjing, Jiangsu, a provincial capital of about 6 million people a few hours northeast of Shanghai, has practiced law for more than 20 years. His personal motto-"to be faithful and honest, to carry forward justice"-was borne out when he was named one of Nanjing's top 10 lawyers in 1998 in recognition of his successful prosecution of a corrupt local official. He is what a colleague calls "a traditional lawyer with a modern mind."
What makes Feng so modern? For starters, he hires young lawyers like Li Zhuying, who, as head of external relations, works to attract foreign clients. This unusual step is just one part of Feng's effort to transform his small but growing firm so that it can remain competitive. After January 2003, foreign law firms will be able to operate more freely in China as a result of China's World Trade Organization (WTO) commitments, and Feng and Li want to be ready.
The significance of the changes that Feng's Nanjing Dongnan Law Firm (NDLF) are making, such as expanding operations and searching for a foreign partner, go beyond the firm's bottom line. They reflect efforts that a range of Chinese professionals and entrepreneurs are undertaking that will bring about de facto reform in China's economic and legal systems. Western observers-who are rightly concerned about the rule of law in China, but who sometimes cannot see the forest for the trees-have largely overlooked this quiet movement.
A split from tradition
Discussions among Western experts about the rule of law in China usually concern the actions of the senior leadership: What regulations and laws will the central government enact and implement, and which ones will they enforce? The interesting question, however, is not what will be imposed from above, but rather what is already percolating up from below. In other words, how is the average Chinese citizen already starting quietly to instigate small changes that will ultimately have a powerful impact on how China understands the rule of law?
Traditionally, Chinese leaders ruled by virtue rather than law; legislation and regulations had little relevance. Today's legal system in China reflects this tradition, despite efforts to move toward a more legalized society. Starting with Deng Xiaoping's 1978 declaration that "democracy has to be institutionalized and written into law so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views," the Chinese leadership has repeatedly affirmed its commitment to achieving a system of rule of law. In practice, however, the law in China is subservient to and an instrument of Chinese Communist Party (CCP) policy, according to China legal expert Stanley Lubman, whose 1999 book Bird in a Cage: Legal Reform in China After Mao is among the most comprehensive on legal reform in China to date (seep. 51).
Though China's legal infrastructure, from the Western perspective, is skeletal, and rule of law in China remains a largely subjective enterprise, change is nonetheless under way. Over the past two decades, China has developed institutions charged with developing and enforcing a system of laws, including a legislature that is increasingly acting as more than a rubber stamp; a court system that is beginning to assert its independence; and a legal education system that is starting to find its sea legs. In addition, personal relationships (guanxi) are arguably becoming less important in legal matters, particularly for commercial issues, even if connections and backroom deals still play a significant role in Chinese society. China's efforts to become an economic superpower and its hard-won membership in the WTO have honed the senior leadership's attention to legal reform, primarily as it …
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Publication information: Article title: Bottom-Up Legal Reform. Contributors: McGiffert, Carola - Author. Magazine title: The China Business Review. Volume: 29. Issue: 3 Publication date: May/June 2002. Page number: 38+. © U.S.-China Business Council Mar/Apr 2009. Provided by ProQuest LLC. All Rights Reserved.