China’s First US-Style Law School:
Five Narratives in Search of an Author
Jeffrey S. Lehman
Woodrow Wilson International Center for Scholars
May 21, 2008
Two months ago I was sitting in a seminar room, on the Shenzhen campus of Peking University, commonly known as Beida.
Shenzhen is the mainland city that is just across the border from Hong Kong. Depending on who you talk to, and how broadly you define the metropolitan area, its population is somewhere between 1 million and 15 million. Thirty years ago the population was somewhere between 1,000 and 250,000 people. In other words, the city’s population has increased somewhere between 60- and 1000-fold in three decades. About 80% of the residents are migrants from other parts of China. The city’s population density is among the highest in China, and its GDP per capita is the highest in the country.
I was sitting in the seminar room interviewing applicants for admission to China’s first American-style law school, which will open its doors on that campus in September. About 200 applicants had taken a national exam, about 100 scored high enough to be interviewed, 60 received offers, and about 55 will enroll this fall.
The woman I was interviewing had received the third-highest score on the exam among the candidates we were seeing. She began by apologizing. The train ride from her village in Guizhou Province had been 12 hours. Standing.
In about 4 minutes of interviewing it was obvious that she was off the charts. She could certainly have been a student here. Her English was remarkable. But what was even more remarkable was that she, like two of the other students who will be starting this fall, was entirely self-taught.
When she finished high school in her dirt-poor village she had gotten a job as a teacher. She was at the school 12 hours a day. And then in the evenings she had done a degree in Chinese philosophy by self-study, reading the materials and taking the exams at the local university.
I wanted to know why she wanted to go to law school. Had she ever met a lawyer? No. Was it a book she read? No, it was a movie she had seen.
It was about a young person who had overcome great challenges, had gone to law school, and had used the skills of a lawyer to promote justice. She had been inspired. It was an American movie, and so she wanted to study at an American-style law school. It was her dream. We admitted her, and this fall she will begin to pursue her dream.
So how did this law school begin, and how did I end up there? China has over 600 law schools,
including one at Beida. Why one more? Why an American JD?
The school is the brainchild of a vice president at Peking University named Hai Wen. He is an economist, not a lawyer. He spent his teenage years in exile during the cultural revolution, then earned an undergraduate degree at Peking University, commonly known as Beida. He then came to the US where he received a PhD from UC Davis. He stayed in the US, acquired a tenure-track position at Colorado State. In the mid-90’s, he was recruited back to Beida to help launch a research center in market economics, and he rose rapidly to become a vice president of the university, with responsibility for its branch campus in Shenzhen
In early 2007 Hai Wen took note of the fact that the best graduates of China’s best law schools, including Beida, Renda, Fudan, and Tsinghua, were not being hired by multinational law firms unless they first went to the US or Canada and acquired further legal training. He wanted to understand why. And so he called me and came to visit me in New York. He asked me what was forcing China to – in his words -- outsource the education of some of its finest young minds. He wanted to know whether Beida might be able to produce the same kind of education on domestic soil. And he wanted to know if I would be willing to help launch this school.
That visit inaugurated three months of intense discussion, at the end of which we agreed to launch the Peking University School of Transnational Law, which we refer to by its initials, “STL.” By the end of last summer, he had gotten approval from the Academic Degrees Committee of China’s State Council (which is the equivalent of our federal government’s Cabinet). The State Council authorized STL to offer a degree that will be certified in the English Language as a J.D. degree, and mandating that the curriculum be developed by reference to the J.D. curriculum at American law schools.
STL is a freestanding school within Peking University that operates independently of, and side by side with, Beida’s preexisting law school. To be admitted, a student must have completed an undergraduate bachelor’s degree in a subject other than law. This requirement was inserted by the State Council, on the theory that American students have studied something other than law before law school, so their students should as well. All classes will be taught in English. They will be taught by professors who are drawn from around the world, but most will be drawn from American law schools. Like all other schools that operate on the Shenzhen campus, STL will teach its courses in six-week modules instead of semesters. So students will be taking 2 classes at a time, rather than 4 or 5.
The good news is, we have now recruited faculty to cover all our classes next year but one.
And yet, while I have been moving to get this school launched, I have also been trying to understand what it all means in some larger sense, where it fits into some larger narrative. I have been finding each of five different narratives competing for primacy as the master narrative in which STL should be understood.
I thought that I would take some time this afternoon to review these different narratives with you. And then we should have ample time for questions and comments that you might have for me.
The first narrative is Legal Pedagogy. What does it mean to teach law “American style,” in China?
The past decade has seen quite a startling trend – around the world but especially in Asia – whereby countries announce that they have decided to emulate American legal education by granting a Juris Doctor degree. Consider just the past four years. In 2004 Japan introduced graduate legal education alongside its traditional undergraduate model, self-consciously emulating American educational styles. Shortly thereafter, City University of Hong Kong and Chinese University of Hong Kong introduced JD programs. In Australia, Melbourne University has announced its intention to offer a JD program, and to quickly migrate all of its legal education into that program. In South Korea, it is expected that after this year the only path to membership in the legal profession will be through a J.D. program.
But there is substantial confusion what exactly is being copied. There are many candidates, and different emulators seem to have seized on different features of American legal education. For example: We teach older students. We teach students who have studied something other than law. We use a curriculum that pays attention to the common law. We use a curriculum that stresses the reading of judicial decisions. We use a pedagogy that involves something other than having a professor stand at the front of the room and read. We expect some kind of student participation in class discussions. We use something that we label “clinical education.” Often the key determinant of what it means to use “American legal education” has been the voice of a local legal academic who studied in the US, and who can therefore claim authority to describe what American legal education really “is.”
In the case of STL I have taken what might be described as a fairly conventional, conservative stance. I have been telling audiences the following story about American legal education. It deemphasizes the mastery of any particular body of rules and instead stresses the development of intellectual skills.
Two skills in particular. First, what Elizabeth Mertz describes (with some irritation) as living in an “acontextual context” (p. 52-54). The ability to generate abstract structures of classification and categorization on demand, and then to describe any given situation by reference to categories that are doctrinally salient. And second, what I have for a long time called the capacity for “sympathetic engagement with counterargument.”
How do we develop these skills? Last year William Sullivan, Judy Wegner, and three others published a book for the Carnegie Foundation called Educating Lawyers. The book is in part an empirical search for a “signature pedagogy” that defines how new lawyers are socialized into the profession. Not surprisingly, they conclude that our signature pedagogy is the case-dialogue method, sometimes described as Socratic.
So the teaching of those skills will be our top pedagogic priority at STL. Our secondary priority will be, quite simply, an intense focus on mastery of the English language. Unlike Chinese students who come to Ann Arbor, our students won’t be immersed in an English-speaking environment. If they are to be functioning lawyers in an English-language environment, we will have to figure out how to enable them to cover a lot of ground in only three years.
Other, more expensive features of modern American legal education aimed at developing other qualities, such as live-client clinical education, will come later, as we accumulate the necessary resources.
Narrative Number Two: The Rule of Law.
I would venture that no aspect of Chinese society receives more popular attention than “the Rule of Law.” It doesn’t matter whether you are talking to Americans or to Chinese, everyone agrees that the Rule of Law is crucially important to China, that it is making progress toward the Rule of Law, and that it still has a ways to go.
Exhibit A in this conversation about China and the Rule of Law is a document that was published three months ago by the State Council. The document is entitled, “White Paper: China's Efforts and Achievements in Promoting the Rule of Law.” It is a remarkable document, and if you are interested in this topic I encourage you to download it from the Chinese government’s website, where it is available in both Chinese and English. It runs about 40 double-spaced pages, plus another 20 pages of Appendix.
The White Paper begins with the assertion, “The rule of law signifies that a political civilization has developed to a certain historic stage. As the crystallization of human wisdom, it is desired and pursued by people of all countries.”
In a few sentences, the White Paper notes the existence of written laws in ancient China and complete codes of laws during the Tang Dynasty, before indicating that things fell apart after the Opium Wars in the nineteenth century. It cites an effort to develop a so-called “socialist legal system” in the early 1950’s, but then observes, “From the late 1950s, and especially during the chaotic period of the ‘cultural revolution,’ China's socialist legal system was severely damaged.”
Before I discuss the White Paper’s treatment of the past 30 years, I want to raise an important matter of definition. The problem is that the term “rule of law” is used to describe a broad array of social phenomena, both in the U.S. and in China. And that range of definitions can lead to significant confusion. So let me take a few minutes to break the phrase down into component parts.
I have come to think of the rule of law as a kind of two-dimensional notion, spanning different domains of human activity, and at the same time also spanning different systems whereby those domains are regulated.
I find it helpful to conceive of these two dimensions as a matrix, whose columns correspond to the domains of human activity, and whose rows correspond to the systems for regulating those domains. The matrix looks like this:
The four different domains of human activity that are touched by law might be described as follows:
(1) The private economic domain. Here one finds the substantive rules that regulate private property and its use in commerce (including hiring others to do work). These include the laws of property and contract, as well as laws concerning partnerships and corporations, financial instruments and financial institutions, the laws regulating competition, labor laws, antitrust laws, and many, many more.
(2) The private social domain. Here one finds the substantive rules that regulate how people relate to one another in matters that do not concern private property or commerce. These include rules concerning family relations, respect for the bodily integrity and autonomy of others, expectations of public and private decency, and understandings of what it means to show appropriate care lest one’s actions cause harm to others.
(3) The domain of public power. Here one finds the substantive rules that regulate public officials. These include the structural rules that determine who is entitled to hold public power, together with the rules that determine the extent of the powers that public officials are granted.
(4) The domain of individual-state relations. This category embraces the substantive rules that define the nature of the individual’s obligations to the state and the state’s obligations to individuals. These include tax laws, public benefit laws, laws concerning military service, immigration laws, and others.
In each of these domains, the rule of law is implemented through the interaction among different systems. Each system can be more or less fully developed, but each has a distinct role to play in the overall “rule of law” concept:
(A) The first system involves the promulgation of substantive rules of conduct – the “laws” – that are accepted by the society as having been created in a legitimate manner and as being and substantively just. These rules may be labeled “civil” or “criminal”; depending on how problematic the society considers a transgression.
(B) The second system involves the development of formal law-related institutions – what is sometimes called the rule of law’s “soft tissue” – that shape how substantive rules of conduct are enforced in practice. These institutions are defined in significant part by the procedures through which they operate, but their quality also depends on the people who constitute them. There are many such institutions, some quite specialized. Two institutions pervade all aspects of the rule of law: the government’s enforcement arms, and the judiciary. The rule of law contemplates that these institutions will be effective (accessible and efficient) and just (free of corruption, and restrained in their resort to coercion). Toward that end, they depend on two other pervasive institutions: the legal profession, and the law schools.
(C) The third system is more abstract, but it is also important. It is the creation of a rule-of-law consciousness, a culture of compliance, a sense throughout society that one ought to follow the official rules even if no one is around to enforce them.
Undergirding every cell of this matrix is a single aspiration, the aspiration that distinguishes the rule of law from the rule of individual humans. It is an aspiration to treat all people equally: no person should be exempt from its strictures, and every person should be able to invoke its authority. To work in that way, it is expected that laws will be of general applicability, and that they will be reasonably knowable by those to whom they apply.
[We should, of course, acknowledge that no society perfectly exemplifies the rule of law – it is always an aspiration towards which we are striving. But we should also recognize that some societies have more room for improvement than others.]
So now we can return to the question that is raised by the White Paper. What has happened to the Rule of Law since the end of the cultural revolution and the beginning of the so-called period of reform and opening up?
On this top row, a lot has happened.
A new Constitution was adopted in 1982, and it has been amended four times since. The White Paper describes the role of the Constitution this way: “The present Constitution of China, summarizing historical experiences and taking lessons from the ‘cultural revolution,’ has not only prescribed the fundamental rights and duties of citizens, but also included specific provisions guaranteeing the inviolability of the personal dignity and freedom of the person of Chinese citizens, and that Chinese citizens enjoy freedom of religious belief.” And under the 2004 amendments, “the lawful private property of citizens may not be encroached upon, and the state protects by law the right of citizens to own and inherit private property; and the state respects and protects human rights.”
Underneath the Constitution, the National People’s Congress and its standing committee, the State Council, and the various organs of rulemaking authority have been very busy. The White Paper documents 229 statutes, and thousands of regulations – all duly promulgated under reasonably open and public procedures. As the White Paper accurately notes, “In recent years, the Standing Committee of the NPC and the State Council have sought advice from all sectors of society regarding draft laws and administrative regulations, including the Property Rights Law, Law on Labor Contracts, Law on the Promotion of Employment and Regulations on the Administration of Properties.”
These rules cover all the different domains that are encompassed by the rule of law. The White Paper singles out laws respecting human rights (including the development of the welfare state), laws regulating the market economy (including intellectual property rights and environmental protection), and laws regulating the bureaucracy (described as “promoting law-based administration in an all-round way”).
China has also been active with respect to institution-building. The White Paper describes at length the measures that have been taken to upgrade the judicial system (including the Arbitration Law and the Lawyers Law).
Perhaps the most striking aspect of the White Paper, however, concerns the third layer: the development of a legal consciousness. The White Paper speaks about the nation’s efforts at “Popularization and Education of the Law.” “China has actively promoted the awareness of the rule of law among the public. For many years, the state has unremittingly carried out education and publicity of the legal system, promoting the spirit of law, and enhancing public awareness. It strives to develop the fine tradition of studying, observing and applying the law.”
“The target of popularizing the knowledge of law is every citizen, and the focus is civil servants. For ordinary citizens, popularizing the knowledge of law not only aims to make them know the laws and abide by them, more importantly, is to enable them to use the laws as a weapon to protect their lawful rights and interests. For civil servants, popularizing the knowledge of law aims to make them develop a clear understanding of the rule of law, and act according to law more consciously.”
Now, if you read the White Paper closely, you will note that it does not assert that China is actually operating at international standard on all three of these levels. It isn’t.
Lawyers I speak with in China tell me that it really is operating at or close to world class levels with respect to the top level – the promulgation of rules. It has made great progress with respect to institutional design, in raising the standards and expectations towards which institutions aspire, but it has not yet populated those institutions with people who are fully up to the task. Whether you are talking about courts, law firms, or law schools, the quality of the professionals is uneven at best. And as far as a rule-of-law consciousness – the notion that people would follow the rules even if they didn’t believe they would be punished for violating them – well, China still has a long way to go.
But the White Paper is important because it clearly charts a course for the country, a set of aspirations that are endorsed at the very highest levels of society.
It is easy to fit STL into this aspirational structure. When we are most excited about the school, we imagine our graduates making transformative contributions on all three levels. But how likely is that? Recall that this fall we will begin training 55 students, in a country of 1.3 billion people. A certain degree of humility would seem to be in order here. The most that can be said is that STL should be seen as part of a broader pattern of commitment to improve, but it will be decades before we know whether that commitment will be translated into genuine societal transformation.
The third Narrative is Law and Development. Think is a close cousin of the Rule of Law narrative. But instead of thinking about the evolution of the rule of law within a single country, or in comparative perspective, it focuses on the way that this project is importing an American approach to the legal education into a developing country. And it asks the question, to what extent can borrowing America’s legal infrastructure actually make a positive difference to another country’s political, social, and economic development?
The heyday of Law and Development was the 1960’s, when lots of Ford Foundation money went into rule-of-law development projects around the developing world. In the 1970’s, legal scholars and development scholars declared law and development a bust. David Trubek switched sides and became a critic, concluding that little good had been done. In the stronger form of the argument, the claim was that law was nothing but another tool for oppression and that in some ways America’s attempt to spread the rule of law around the world was just another example of ethnocentric imperialism.
But, interestingly, law and development didn’t go away. And in the 90’s Trubek noted that it had made a bit of a comeback. Some strange bedfellows, including the pro-trade business establishment and the international human rights community, joined forces behind the claim that transplanting legal institutions can produce better societies even if they’re not perfect. The most important voices were from the developing world itself. They put forward a fairly powerful argument that American critics of law and development were just another example of ethnocentric, patronizing elitism. In one analogy, it was compared to an American opposing the distribution of food to a developing country because it might be high in cholesterol.
I would just note a few of my worries in this regard, because there are ways in which STL has some of the hallmarks of a failed law-and-development project. For starters, I myself am terribly under-informed about China. I do not even speak Mandarin. Hai Wen has made the case that this is different from a typical law and development project because he is driving it, along with the other leaders of Peking University. But frankly I remain nervous.
The Fourth Narrative is Cognitive Encounter. This is broader than the Law and Development questions around STL, but at the same time it also has more bite. So I want to take a few more minutes to spell it out.
When I was talking about legal pedagogy, I mentioned Elizabeth Mertz’s suggestion that a key intellectual skill that we nurture in American law school involves a facility with reductionist categorization that separates objects from their context. Might it be the case that this way of thinking about the world is too foreign, too culturally uncongenial, for us to transplant successfully? Might it be somehow problematic – either morally or practically – to project an American way of thinking onto a Chinese audience?
Now my initial reaction to this kind of question is, frankly, quite dismissive. We’ve all had experience with students from China doing very well in our classrooms here, so the cultural distance can’t be too enormous. Nonetheless, there is a literature that provides some reason to take this question seriously.
A few years ago a cognitive psychologist at the University of Michigan, Richard Nisbett, wrote a book entitled, The Geography of Thought. In the book he reviews a wide array of experiments by cognitive psychologists that test whether Westerners perceive and evaluate the world differently from Asians. And he reads these experiments to suggest that Westerners are trained from the time they are young children to think about the world differently from Asians.
Nisbett reports that baby Westerners are trained to think about objects in isolation from their surroundings. They are trained to look at objects and focus on the properties of those objects that do not change over time. Finally, they are trained further to categorize objects into classes according to those more-or-less permanent properties.
For example, an experiment was done in which a group of mothers with babies were each given a new toy to play with. The Western mothers tended to talk with their babies mostly about the toy’s shape, its size, its color. They spent much less time than the Asian mothers did talking about who might use the toy in different situations, and how it could be shared with others.
Nisbett observes that this focus on objects and their properties is supplemented by two other kinds of training. One has to do with the idea of causation. Western children are trained to look at a sequence of events and try to develop a simple model of causation. Let me give an example that Professor Nisbett does not use but that fits with his description. Suppose a child sees a movie where a big boy hits a little boy and the little boy cries. In the West the child is encouraged to say that the action of the big boy caused the reaction by the little boy. And the child is encouraged to develop a simple general rule: whenever one person hits another person, the one who is hit will cry.
The other kind of training has to do with the idea of contradiction. Western children are trained to understand the world according to rules of logic whereby a contradiction is a sign that something is wrong. Systems of belief that do not include contradictions are thought to be better – more true – than systems of belief that have contradictions within them.
Nisbett suggests that these four qualities help to explain a difference between the ways that Westerners and Asians approach new, complex situations. A Westerner is likely try to break the situation down into separate objects, classify those objects by their properties, select which objects are more important and which are less important, and then see if there is a general rule or model that describes how the more important objects relate to each other. According to Nisbett, an Asian is more likely to focus on the entire scene, and rather than stressing the properties of the individual elements is more likely to stress the relationships among the elements.
So Nisbett gives the example of what happens when Westerners and Asians are shown two pictures of a tiger in the jungle. The pictures are similar, but not identical. The tiger is slightly different in the two pictures, and the jungle is slightly different.
When shown these pictures and asked to describe the differences, Westerners tend to focus almost entirely on the tiger, which they think of as the “most important” object in the picture. They tend not to perceive the changes in the jungle, which they think of as the “background.” Asians tend to focus on changes in the relationship among all the objects in the picture, and tend not to perceive changes in individual elements such as the tiger.
Last fall I taught a little mini-course at Tsinghua University that I called, “How Americans Think.” And in one of my lectures I trotted out Nisbett and his thinking. And I was stunned by the extent to which my students, all Chinese, said, “yes, yes, this is exactly right, this is a crucial difference between Chinese and Americans.”
Frankly, I’m not so sure. But if it is right, then it suggests that we should be wary about assuming that the same pedagogy that helps to develop the lawyering skills we want among Americans will be equally effective in China.
And then we have the fifth Narrative, Individual Motivation. I am a Westerner coming to do work in China. One of Jonathan Spence’s early books was called, To Change China. The book profiles 16 different Westerners who, over the course of 300 years, ventured off to contribute something of their own expertise to China. There’s not a simple single lesson to be drawn, other than cautionary. Mostly it’s a reminder that as this school moves ahead, I need to keep monitoring my own motives, and my own a priori assumptions, if I don’t want to end up surprised or disappointed by how things turn out.
So … that’s my list: legal pedagogy, rule of law, law and development, cognitive encounter, and personal motivation. Each narrative illuminates an aspect of the School of Transnational Law. And it is reasonable to think that over the next five years our experience with the School will add something new to each of those narratives. For an academic, such thoughts make it exciting to be participating in this venture. But, to be honest, that isn’t where the greatest excitement lies. The greatest excitement lies in the possible impact our school will have on the lives of our students, like the woman from Guizhou Province I mentioned at the outset. We may not end up being as significant to her life as that Hollywood movie was. But if we can come in a close second, it will be a remarkable achievement indeed.