Woodrow Wilson International Center for Scholars
June 13, 2007
I am honored to be back at the Wilson Center to help catalyze today’s off-the-record conversation about the Rule of Law in the Developing World.
A couple of months ago I was asked by the Hong Kong Development Forum to be one of two people on a panel to talk about the relationship between Law and Politics. The other panelist was the Vice Dean of the Tsinghua Law School. And our conversation was focused on the more theoretical aspects of the rule of law.
I believe that the theory is quite important. I think that people have gotten into trouble rushing into places saying, “let’s promote the rule of law” without being clear in their own minds about what they mean by the Rule of Law.
But at the same time I think that people can wander off into the world of theory and never come back.
And they can end up consumed in passionate debates about what is or isn’t the Rule of Law, all the while becoming totally detached from questions about how it is a country actually goes about strengthening its claim to being a society subject to the rule of law rather than the rule of people.
So I thought that, to get things going, I would do two things. First, I will say a little bit about the theory.
And I will try to be precise about what I mean when I speak about a society having the Rule of Law.
Second, I will talk about the more practical side of rule of law capacity building in one specific context, and that is China.
So what do I mean when I speak about the Rule of Law? I have sent around a handout that squeezes into one page what I consider to be the essential elements.
The first paragraph is, I think, quite important. Far too many conversations end up bogging down in conversations along the lines of, Person A says, the Rule of Law requires Transparency, and Person B says, “Well, then, the United States doesn’t have the Rule of Law – your Senate can’t even find out who determined to fire eight US Attorneys.”
And so I think it important to recognize at the outset that the Rule of Law is not perfectly realized anywhere on earth, including in this country. But there are differences between countries that have developed a workable rule of law and those that have not. In countries with a workable rule of law, most people, most of the time, are able to go about their lives with a sense that they are living inside a system where there are rules, those rules are respected as reasonable, and those rules are followed.
So on my handout, you see the paragraph that begins with the word “First.” That’s the paragraph about the notion that the society’s rules are mostly respected as being reasonable. The legal philosopher H.L.A. Hart said that this means that the rules are established under what he called the country’s “Rule of Recognition” – the sovereign has spoken, the will of the people has been expressed, perhaps democratically and perhaps not. And I have added a couple of substantive elements – dignity and equality – suggesting that however these rules may have been created, they can’t create a caste structure under which some citizens are treated as categorically inferior to others.
There is a lot of important capacity building work that is done around the world on this aspect of the Rule of Law. Getting the Rules right. Helping a country to adopt laws that its citizens will respect as satisfying that country’s Rule of Recognition. And helping a country to adopt laws that meet world-class standards of dignity and equality.
And perhaps in the discussion others can say more about the practical difficulties associated with this kind of capacity building.
But I would like to focus on the next paragraph. The one that begins with the word “Second.” It’s the one that focuses on whether these lovely rules are really followed.
Because in my experience working in China over the past two years, that is where I have found the greatest focus by the leaders within China who are working towards modernization.
My metaphor for this challenge was given to me about 15 months ago by the chair and CEO of one of China’s largest transnational businesses. I had asked him how he saw the current state of China’s legal system. He pointed out his window at the streets of Beijing and said the following:
“Look, Jeff, at those cars. Thirty years ago, Beijing didn’t have any traffic laws. Today, I honestly believe that Beijing has world-class, state-of-the-art traffic laws. But look at those drivers. Driving on the wrong side of the road. Cutting each other off. Parking in the middle of the street. Our world-class traffic laws aren’t being enforced, they’re not shaping people’s behavior the way they do in the U.S. That’s a metaphor for our overall legal system. We’ve got the laws; but we need to learn how to enforce them well enough that individuals begin following them of their own accord.”
So this second paragraph is focused on process. How does a country become a country where the rules are actually followed. And you’ll see that I describe a social structure in which coercive compliance systems nurture a larger system of voluntary compliance. And the rule of law tests require that those systems be effective and just … that they be accessible to all, free from corruption, and that they not employ cruel or disproportionate methods.
And in the second footnote I note that it is generally accepted that such compliance systems require two kinds of people – judges and lawyers.
So let me say just a few words about the challenge of creating a world of judges and lawyers in a developing country, and in particular in China. For the past couple of years I have been working with Peking University and with Beijing Foreign Studies University in support of several projects associated with the Rule of Law. And in that context I have had the chance to see how China has had to struggle with two very practical problems, problems that I would call the challenge of chickens and eggs, and the challenge of borrowing wisely.
First is the challenge of chickens and eggs.
Everyone knows that by the end of the Cultural Revolution there was effectively no law in China. No courts. No judges. No lawyers. A handful of law schools that were not teaching anything that we would recognize as law. No law professors.
So 30 years ago the Cultural Revolution ends, and the era of modernization begins. Law returns, and the country needs courts. And courts need judges.
But judges are the ultimate eggs. Judges need training in the law. That requires law schools, and it requires time in law schools. But law schools need professors. Professors need training and that requires still more time. These eggs require chickens and grand-chickens.
But China needed judges right away. So it took former soldiers and police officers, people who know something about rules and enforcement, and it made them judges.
But now you have another problem. These judges may have been well meaning, and they may not have been. But they certainly were not well prepared for subtle legal analysis.
And that in turn spawned its own problems. Among ruile of law theorists, one of the points of near consensus is that a society with the rule of law features an independent judiciary with the power to review the decisions of state officials. But does that make sense if the judiciary consists of former PLA soldiers? Do you really want to give some relatively underprepared individuals the authority to review the decisions of some of the best trained and most sophisticated people in the country?
Perhaps not. But then how do you develop mechanisms to ensure that there is orderly review of bureaucratic action to ensure that it complies with the law?
The answer for China is clearly not in. On the one hand the country is working very hard to retrofit and upgrade its judiciary, providing remedial training for sitting judges and raising the standards for what it takes to be appointed a judge now.
On the retrofitting front, the current 5-year program calls for a huge investment in judicial training. And in this regard China has received important support from the Ford Foundation and a number of American law schools.
As far as new judges are concerned, in 2002 China adopted rules that require new judges to pass a qualifying exam. And in 2003, all candidates for the exam were required to have completed 4 years of legal study. To return to my metaphor, China is trying to breed better chickens in hopes that, in a generation or so, the judiciary will be populated with quality eggs.
But it looks to me that the concept of strong, powerful, independent judicial review of executive action remains some time off. There is still a substantial gap between the caliber of the judges and the caliber of the bureaucrats whose decisions need to be reviewed. So what about now? The most that can be said, I think, is that China continues to explore ways to have some kind of review of executive action.
Alternatives to courts. But I think very few people would say that they have achieved a satisfactory solution at this time.
And what about lawyers?
As with judges, lawyers need to be trained in law schools. And in 1978 China had to make choices about what kind of training to provide. How would it prepare them to understand their role in society? And here it had to borrow. And it chose to borrow the system of legal education that prevailed at that time in most of the world.
What was that system like? The continental Europeans call it “legal science.” It’s a subject that is studied as an undergraduate, in place of other subjects. And the goal of education is the transmission of knowledge about the rules.
China has moved quickly to build this system. Today it has 400 law schools nationwide, producing about 25,000 new candidates for the bar every year. Of course, because of the chicken and egg problem, it has taken time to create a profession of law professors just as it has taken time to create a profession of judges. And because of disparities between what law professors are paid and what lawyers can earn, it has been difficult to keep the best and the brightest in the classroom. But those are the kinds or problems that many countries struggle with.
There seems to be, however, a bigger problem. I will say that my personal experience with students at the best Chinese law schools, like Peking University and Fudan University, is that they are astoundingly smart. They speak very good English. And they have superb powers of analysis and imagination.
And yet, as wonderful as these students are, they find that when they graduate from Chinese law schools, even the very best Chinese law schools, they cannot get jobs at the best international law firms. They might be able to be hired as so-called “Chinese Associates,” which are essentially glorified paralegal positions. And then they might be able to work their way up the ranks until they have the opportunities and salaries of associates hired from US law schools. But if they really want to have opportunities, they must go to the US or the UK or Australia and get an advanced degree in law, usually an LLM degree.
The problem here is the problem of unfortunate borrowing. Because just when China was rebuilding its law schools, a truly globalized legal profession was emerging. And the standards of that profession do not call for students of legal science. They do not call for people who have memorized the rules. They call for people who have developed a set of intellectual skills in law school, rather than people who have absorbed certain data. They need to be practical problem solvers. They need to be highly sophisticated in their approaches to thinking about words, and about systems of rules, and they need to be skeptical in their approach to facts. And the law schools that were created after 1976 were not structured with that mission in mind.
So several months ago the leadership of Peking University approached me and asked them to think about how to design a new kind of law school, one that comports with international norms. And I have been impressed with how committed they are to establishing such a school. They are talking about a school that would open in 2008 and would offer all its classes in English, taught primarily by visiting faculty from around the world, professors with experience in teaching law as a way to develop intellectual skills rather than as a way to transmit information.
Of course, these eggs will also take time to hatch. It will be another five years before we start to see this new kind of international-class lawyer.
But that is the way it is with building rule of law capacity. The human side – the development of a world of judges and lawyers – is slow going.
But it seems to me that in many ways these countries can’t wait until all of this work is done. The demand for a meaningful, workable rule of law is too strong. And so I would be very interested in learning more about strategies that people here know of that are effective in the short term, strategies that might jump-start the emergence of the rule of law in the developing world, strategies with practical payoff for businesses and individuals worldwide.