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Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers

Published online by Cambridge University Press:  01 January 2024

Sida Liu  and
Terence C. Halliday
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Abstract

This article examines the meanings of politics in everyday legal practice using the case of Chinese criminal defense lawyers. Based on 194 in-depth interviews with criminal defense lawyers and other informants in 22 cities across China, we argue that lawyers’ everyday politics have two faces: on the one hand, lawyers potentially can challenge state power, protect citizen rights, and pursue proceduralism in their daily work; on the other hand, they often have to rely on political connections with state agencies to protect themselves and to solve problems in their legal practice. The double meanings of politics—namely, political liberalism and political embeddedness—explain the complex motivations and coping tactics that are frequently found in Chinese lawyers’ everyday work. Our data show that the Chinese criminal defense bar is differentiated along these two meanings of politics into five clusters of lawyers: progressive elites, pragmatic brokers, notable activists, grassroots activists, and routine practitioners. They also suggest that a principal manifestation of political lawyering is not merely short-term mobilization or revolutionary struggle against arbitrary state power, but also an incremental everyday process that often involves sophisticated tactics to manage interests that often conflict.

Type
Articles
Information
Law & Society Review , Volume 45 , Issue 4 , December 2011 , pp. 831 - 865
Copyright
© 2011 Law and Society Association.

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Footnotes

Financial support for this project is provided by the National Science Foundation (SES-0850432) and the American Bar Foundation. We would like to thank Lily Liang for her excellent research assistance in data analysis and writing. The fieldwork benefited from the extraordinary work of 13 research assistants from China University of Political Science and Law, whose names have to be omitted for their protection. Earlier versions of the article were presented at the Law & Society Association 2010 Annual Meeting; the American Sociological Association 2010 Annual Meeting; the Chinese Politics Workshop and Politics, Culture, Society (PCS) Brownbag at the University of Wisconsin-Madison; the Workshop on Chinese Legal Reform at Yale Law School; and the East Asian Workshop at the University of Chicago. We received helpful comments from the participants, especially Paul Gewirtz, Chad Goldberg, Lucien Karpik, Leah Larson-Rabin, Chaeyoon Lim, Melanie Manion, Pamela Oliver, Jeffrey Prescott, and Erik Olin Wright.

References

All-China Lawyers Association (2003) 2002 Niandu Zhongguo Lüshiye Fazhan Shuju Tongji Fenxi Baogao [2002 Statistical Report on the Development of the Chinese Legal Profession]. Beijing: All-China Lawyers Association.Google Scholar
Bourdieu, Pierre (1987) “The Force of Law: Toward a Sociology of the Juridical Field,” 38 The Hastings Law J. 805–853.Google Scholar
Carlin, Jerome E. (1962) Lawyers on Their Own: A Study of Individual Practitioners in Chicago. New Brunswick, NJ: Rutgers Univ. Press.Google Scholar
Dezalay, Yves, & Garth, Bryant (2002) The Internationalization of Palace Wars: Lawyers, Economists and the Transformation of Latin-American States. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Feeley, Malcom M. (1979) The Process is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation.Google Scholar
Flood, John (1991) “Doing Business: The Management of Uncertainty in Lawyers’ Work,” 25 Law & Society Rev. 41–72.CrossRefGoogle Scholar
Fu, Hualing, & Cullen, Richard (2008) “Weiquan (Right Protection) Lawyers in a Authoritarian State: Building a Culture of Public Interest Lawyering,” 59 China J. 111–127.CrossRefGoogle Scholar
Halliday, Terence C. (1985) “Knowledge Mandates: Collective Influence by Scientific, Normative, and Syncretic Professions,” 36 British J. of Sociology 421–447.CrossRefGoogle Scholar
Halliday, Terence C. (1987) Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment. Chicago: Univ. of Chicago Press.Google Scholar
Halliday, Terence C. (2011) “Heroic Lawyering: Should Political Liberalism be an Ethic for Lawyers Worldwide?,” paper presented at International Legal Ethics Conference, Stanford Law School, July 17, 2011.Google Scholar
Halliday, Terence C. & Karpik, Lucien, eds. (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries. Oxford: Clarendon Press.Google Scholar
Halliday, Terence C. & Karpik, Lucien, eds & Liu, Sida (2007) “Birth of a Liberal Moment? Looking through a One-Way Mirror at Lawyers’ Defense of Criminal Defendants in China,” in Halliday, T. C., Karpik, L., & Feeley, M. M, eds., Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism. Oxford: Hart Publishing.Google Scholar
Halliday, Terence C., Karpik, Lucien, & Feeley, Malcolm M., eds. (2007) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism. Oxford: Hart Publishing.Google Scholar
Human Rights Watch (2008) Walking on Thin Ice: Control, Intimidation and Harassment of Lawyers in China. http://hrw.org/reports/2008/china0408 (accessed 3 October 2011).Google Scholar
Karpik, Lucien (1988) “Lawyers and Politics in France, 1814–1950: the State, the Market, and the Public,” 13 Law and Social Inquiry 707–736.Google Scholar
Karpik, Lucien (1999) French Lawyers: A Study in Collective Action, 1274 to 1994, trans. N. Scott. Oxford: Clarendon Press.Google Scholar
Kritzer, Herbert M. (1990) The Justice Broker: Lawyers and Ordinary Litigation. New York and Oxford: Oxford Univ. Press.Google Scholar
Lazega, Emmanuel (2001) The Collegial Phenomenon: The Social Mechanisms of Cooperation among Peers in a Corporate Law Partnership. New York and Oxford: Oxford Univ. Press.CrossRefGoogle Scholar
Liu, Sida (2006) “Client Influence and the Contingency of Professionalism: The Work of Elite Corporate Lawyers in China,” 40 Law & Society Rev. 751–782.CrossRefGoogle Scholar
Liu, Sida (2008) Shiluo de Chengbang: Dangdai Zhongguo Falü Zhiye Bianqian [The Lost Polis: Transformation of the Legal Profession in Contemporary China]. Beijing: Peking Univ. Press.Google Scholar
Liu, Sida (2011) “Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market,” 206 China Q. 276–293.CrossRefGoogle Scholar
Liu, Sida & Halliday, Terence C. (2009) “Recursivity in Legal Change: Lawyers and Reforms of China's Criminal Procedure Law,” 34 Law and Social Inquiry 911–950.CrossRefGoogle Scholar
Lu, Hong, & Miethe, Terence D. (2002) “Legal Representation and Criminal Processing in China,” 42 British J. of Criminology 267–280.CrossRefGoogle Scholar
Mather, Lynn, McEwen, Craig A., & Maiman, Richard J. (2001) Divorce Lawyers at Work: Varieties of Professionalism in Practice. Oxford and New York: Oxford Univ. Press.Google Scholar
Michelson, Ethan (2003) Unhooking from the State: Chinese Lawyers in Transition. Ph.D. Dissertation. Department of Sociology, University of Chicago. Chicago, IL.Google Scholar
Michelson, Ethan (2007) “Lawyers, Political Embeddedness, and Institutional Continuity in China's Transition from Socialism,” 113 American J. of Sociology 352–414.CrossRefGoogle Scholar
Michelson, Ethan & Liu, Sida (2010) “What Do Chinese Lawyers Want? Political Values and Legal Practice,” in Li, C., ed., China's Emerging Middle Class: Beyond Economic Transformation. Washington, DC: Brookings Institution Press.Google Scholar
Nelson, Robert L. (1988) Partners with Power: The Social Transformation of the Large Law Firm. Berkeley, CA: Univ. of California Press.CrossRefGoogle Scholar
Sarat, Austin, & Felstiner, William L. F. (1995) Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process. New York: Oxford Univ. Press.Google Scholar
Sarat, Austin, & Felstiner, William L. F. & Scheingold, Stuart A., eds. (1998) Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford Univ. Press.Google Scholar
Sarat, Austin, & Felstiner, William L. F. & Scheingold, Stuart A., eds, eds. (2001) Cause Lawyering and the State in a Global Era. New York: Oxford Univ. Press.CrossRefGoogle Scholar
Sarat, Austin, & Felstiner, William L. F. & Scheingold, Stuart A., eds, eds. (2005) The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice. Stanford, CA: Stanford Univ. Press.CrossRefGoogle Scholar
Scheingold, Stuart A., & Sarat, Austin (2004) Something to Believe in: Politics, Professionalism, and Cause Lawyering. Stanford, CA: Stanford Univ. Press.Google Scholar
Seron, Carroll (1996) The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys. Philadelphia: Temple Univ. Press.Google Scholar
Yu, Ping (2002) “Glittery Promise vs. Dismal Reality: The Role of a Criminal Lawyer in the People's Republic of China after the 1996 Revision of the Criminal Procedure Law,” 35 Vanderbilt J. of Transnational Law 827–865.Google Scholar