Academic journal article Harvard Law Review

Adopting and Adapting: Clinical Legal Education and Access to Justice in China

Academic journal article Harvard Law Review

Adopting and Adapting: Clinical Legal Education and Access to Justice in China

Article excerpt

I. INTRODUCTION

Since the Ministry of Justice's first mention of "legal aid" in its Lawyers' Professional Morality and Professional Discipline Standards in 1993, the Chinese government has increasingly emphasized legal aid as an important component of an overall project to implement the rule of law in China. (1) From the outset, Chinese universities and their students have played a role in legal aid's development, first through university-affiliated nongovernmental legal aid centers and student-run organizations, and more recently through clinical legal education programs incorporated into the law school curriculum. These student legal aid efforts have been self-consciously modeled on clinical legal education programs in the United States, and like their U.S. counterparts, they state among their goals not just building skills, but also instilling in students a commitment to public service and fulfilling some small part of China's legal aid needs--in other words, contributing to the expansion of access to justice in China. (2)

Such cross-jurisdictional borrowing of institutional models is not only desirable, but also necessary in a country such as China, which since the late 1970s has sought to develop rapidly a market economy and the accompanying legal and regulatory infrastructure necessary to administer it. But, as scholars often have lamented since Professors Marc Galanter and David Trubek's original critique of the law and development movement, (3) successful legal transplantation is neither easy nor routine. Borrowed models must be adjusted to indigenous circumstances. (4) And in every importation, the nasty specter of "legal imperialism" (5) lurks: the would-be imparter and the would-be recipient must constantly examine what, if anything, makes the introduced idea or institution better than what is already there. Western theorists have at times doubted the very validity of legal importations, claiming the law and development movement to be in a constant state of "crisis." (6) But notwithstanding the theorists' perceived conundrum, practitioners in developing countries have continued to import and adapt legal models. They know "there [is] no going back" (7) to an idealized pre-globalization state, and in today's globalized economy, they will have to borrow to catch up.

China's legal educators, for their part, are keenly aware of the challenges before them in importing clinical legal education; they have struggled from the outset with the question of how to "localize" the American model, in which they see much promise but many ill fits. (8) This Note examines China's importation and localization of this one legal institution, the U.S.-style legal clinic, with respect to one stated goal of the importation, promoting equal access to justice in China. The scope is purposefully modest: one might also examine clinical legal education's potential contributions to many other worthy goals, including increasing the professional skills of law graduates or instilling a sense of professional responsibility that might ultimately strengthen the Chinese bar, but those questions are large and deserving of separate treatment. The conclusion is also modest: clinical legal education alone, no matter how adapted, does not have the power to establish equal access to justice in China, although it may, if China's clinical legal educators continue their innovative adaptations to Chinese needs and circumstances, contribute in some small way to that goal.

Part II of this Note examines the relationship between clinical legal education and the goal of equal access to justice, both in the movement's origins in the United States and in its importation to China. Part III steps back for a view of the context in which clinical legal education operates in China, noting distinctive features of the Chinese legal system and profession that might pose challenges to addressing access-to-justice concerns through clinical legal education. …

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