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The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work

Published online by Cambridge University Press:  01 January 2024

Ethan Michelson
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Abstract

This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.

Type
Articles of General Interest
Information
Law & Society Review , Volume 40 , Issue 1 , March 2006 , pp. 1 - 38
Copyright
© 2006 Law and Society Association.

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Footnotes

The research on which this article is based was funded by the Ford Foundation (Beijing). I express my profound gratitude to Wang Ping and Weiwei Shen for their research assistance at the BC Law Firm in 2001. Herbert Kritzer, three anonymous reviewers, and an editorial board member of Law & Society Review provided particularly helpful guidance throughout the revision process. This article also benefited enormously from the comments and suggestions of Gardner Bovingdon, Deborah Davis, Elizabeth Hoffmann, Fu Hualing, Mary Gallagher, William Hurst, Scott Kennedy, Robin Leidner, Sida Liu, Xiaoxia Michelson, Carl Minzner, Brian Powell, Brian Steensland, Mary Nell Trautner, and Pamela Walters. Mara Lazda and Emily Meanwell provided valuable editorial assistance. I am solely responsible for all remaining defects and omissions. Finally, I also thank Tao Jiwei, Li Lulu, and Zhou Xiaoping for their many years of help, support, and friendship.

References

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Statutes Cited

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General Principles of the Civil Law (Minfa Tongze), passed and issued April 12, 1986, at the Fourth Session of the Sixth National People's Congress, effective January 1, 1987 (1987).Google Scholar
Labor Law (Laodong Fa), promulgated July 5, 1994, at the Eighth Session of the Standing Committee of the Eighth National People's Congress, effective January 1, 1995 (1995).Google Scholar
Law on Lawyers (Lüshi Fa), passed May 15, 1996, at the Nineteenth Session of the Standing Committee of the Eighth National People's Congress, effective January 1, 1997 (1997).Google Scholar
Measures for Handling Medical Accidents (Yiliao Shigu Chuli Banfa), promulgated June 29, 1987, by the State Council (1987).Google Scholar
Measures of the People's Court on Litigation Fees (Renmin Fayuan Susongfei Banfa), issued July 12, 1989, by the Supreme People's Court, effective September 1, 1989 (1989).Google Scholar
Opinion Regarding Some Problems in the Implementation and Enforcement of the Labor Law (Guanyu Guanche Zhixing Laodong Fa Ruogan Wenti de Yijian), Document No. 309, issued August 4, 1995, by the Ministry of Labor (1995).Google Scholar
Regulations on Legal Aid (Falü Yuanzhu Tiaoli), promulgated July 16, 2003, by the State Council, effective September 1, 2003 (2003).Google Scholar
State Administration of Taxation Notice Regarding Strengthening the Levying and Auditing of Personal Taxes of Investors in Law Firms and Other Intermediary Organizations (Guojia Shuiwu Zongju Guanyu Qianghua Lüshi Shiwusuo Deng Zhongjie Jigou Touzizhe Geren Suode Shui Chazhang Zhengshou de Tongzhi), Notice No. 123, issued September 29, 2002, by the State Administration of Taxation (2002).Google Scholar