Some 20 years ago, I went to Annapolis to watch a friend be admitted, with a class of other young lawyers, to the Maryland bar. It was a genuinely inspiring ceremony, the kind of thing where you can feel, if only for the moment, the accumulated decency of 2000 years of law and justice being passed on to a new generation.
More striking to me, however, was that after the presiding judge administered the requisite oaths, he gave the new lawyers a powerful lecture I’ll never forget. (I can’t remember who the judge was, but I remember the speech.)
The judge told these neophytes that for all the jokes and barbs aimed at the legal profession, they — the members of the bar — were in fact the guardians of a law-based society and the protectors of the foundations of our form of government. Not the journalists, not the generals, not the politicians, but them, the representatives of the law — you could almost hear the judge capitalize it as The Law — and the legal standards to which reporters, soldiers, and even Presidents have to answer.
Now that might seem overblown, and even self-serving, coming from a judge. But he was right. Without the law, and without the lawyers who practice it, we would be at the mercy of political and military authorities who would have no constraints on them and would never have to answer before a separate branch of government. This, sadly, was the situation in most of the world for most of the 20th century.)
(As an aside, many people think that Shakespeare called for “killing all the lawyers.” He didn’t. The actual line from Henry VI – “The first thing we do, let’s kill all the lawyers” — is widely misunderstood and misquoted. It’s actually a compliment to lawyers, because it’s spoken by a character who wants to overthrow law and order and become king, and knows that one of the biggest obstacles in his way is the legal profession.)
I would bet, actually, that there are only two situations where Americans really think about the degree to which “the rule of law”protects their rights.
The first is the moment they get arrested; that’s when everyone suddenly remembers the Constitution. The other is when they get arrested overseas, and find out that foreign prosecutors couldn’t care less about U.S. politics, the Miranda Warning, or something James Madison once said, and actually care much more about putting lippy American kids in the slammer.
(Here, let me add a note to young people, especially, about what to do when in trouble with the law, either in this country or anywhere else. The first rule? Shut up. Showcasing your Wikipedia-level knowledge of the law or your quick wit isn’t going to help matters. Trust me.)
Anyway, in democracies, and especially in America, we talk about “the rule of law” almost without thinking about it. We take it for granted, and we gripe endlessly when judicial decisions, whether in small claims or in the Supreme Court, don’t go the way we want them to. But in places like Russia and China, the idea of an impartial court, where a verdict is actually an unknown until it’s announced, is relatively new.
That’s why it’s an interesting — and positive — development to see China minting hordes of new lawyers. I realize that “hordes of new lawyers” must sound like a curse I’m wishing on our Communist frenemies, but I mean it.
My colleague Joan Johnson-Freese wrote a piece in yesterday’s AOL Defense on legal education in the People’s Republic. She points out not only that these new Chinese lawyers could be a force for reform, but also that the regime knows it — and is stuck with a dilemma:
The Chinese legal profession is changing in ways that unnerve the PRC’s mandarins — who recently required all lawyers to swear loyalty to the Communist Party in order to be licensed — and American influence is part of the reason why.
Law schools are proliferating in China. There are currently over six hundred programs granting law degrees – three times the number of accredited law schools in the United States, albeit for a population four times as large – and many of them have opened in just the last ten years.
The content of these programs is still evolving. Only recently, for example, have courses on legal research and writing been routinely offered; before, it was assumed students would learn those skills on the job. In another significant change, law students increasingly study Western philosophy, for comparative purposes, including the relationship between the individual and the state in the works of Locke, Rousseau, and Montesquieu – the seminal writings of modern democracy.
China’s government bosses can stand on a stack of Mao’s writings and demand loyalty oaths all day long, but they cannot evade the reality that in the modern, globalized world, swearing fealty to the Communist Party isn’t going to keep Chinese lawyers from getting beaten in court if they don’t know what they’re doing.
Western lawyers — created and molded from a tradition a lot older than Communism — are very, very good at what they do, and the new Chinese kids will end up handing over their lunch money if they passed the bar by reading the Chairman’s Little Red Book instead of Black’s Law Dictionary.
This is an itchy problem, of course, for a one-party authoritarian state that still wants to play hardball in the international economy. They can’t turn out fleets of lawyers who are just government hacks. (Yes, I know they can, but that’s not the point.) Without a functional domestic legal system, any significantly large economy will grind to a halt.
The lack of a contract and tort system, for example, still holds up economic development in Russia. Think about it: when Vladimir Putin thinks the courts ought to work better, you know you’re not in Kansas anymore.
Before I’m accused here of being biased — and I am, resolutely, in favor of the Western system — let me make, as the legal beagles say, a full disclosure. I’m not a lawyer. (I have an excellent one, however.) And I admire lawyers, partly because I know I don’t have nearly the discipline and knowledge they do.
And the one experience I’ve had with a foreign legal system was a terrifically positive one, in a Moscow family court. A very stern judge sitting before the imposing eagle on the official seal of the Russian Federation put me through my paces for about an hour; she asked me several direct but fair questions, retired to her chambers, and then returned with a kind smile and her best wishes as she allowed me and my wife to adopt a beautiful baby girl, who was in my arms by that afternoon.
So I hope it’s clear that I’m not inclined to reflexively hate non-American courts, because one of them worked out pretty well for me. (On the other hand, I would never want to be a criminal defendant in a Russian court. Soviet-era traditions there have been hard to break, as a lot of innocent men and women have found out the hard way.)
The fact of the matter is that sooner or later, the Chinese government will have to pick: does it want loyal lawyers, or does it want good lawyers? You can’t really have both, since a lawyer’s first duty is to the law. American lawyers do not swear an oath to defend the government, they swear — like all U.S. public servants, including me — first and foremost to defend the Constitution of the United States, the principles we live by and to which the government itself must be held accountable, and not to any party — not even a vanguard revolutionary party.
It is logically impossible for Communism and the rule of law to coexist. China’s new lawyers probably know it already, even if their rulers in Beijing are hoping they can evade a verdict already rendered by history. Good luck to them, but I’d advise them not to tangle with our guys just yet; there’s a lot more to the law than books and oaths.