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

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.

Advocates, experts, and suspects: three images of lawyers in Chinese media reports

“…(NFZM_20080703) Nevertheless, lawyers' expertise does not necessarily raise their status. As a lawyer's comment in the River News demonstrates, it is the political embeddedness of lawyers (Michelson, 2007;Liu & Halliday, 2011;Liu, 2011a), rather than their expertise, that guarantees the efficacy at work, personal safety or trust from their clients (DHB_20070912).…”

“…These articles meticulously walk through the lawyers' frustrations in the criminal process and allow them to voice a determination and perseverance "to expose this controversy to the public" (YNFZB_20080721c) and "to battle a way out for Chinese lawyers" (NFZM_20080305c). The extensive coverage may be initiated by lawyers as a coping strategy when facing professional difficulties, as suggested by Liu and Halliday (2011), or bestowed by sympathetic journalists. Nevertheless, the narratives present a vulnerable image of lawyers as advocates.…”

“…The 1996 Criminal Procedure Law endowed lawyers with more procedural rights at the trial stage and permitted lawyers to participate, albeit in limited ways, in the investigation and prosecution stages of the criminal process. In practice, these provisions were severely compromised by procurators and police officers (|Liu & Halliday, 2009, 2011 who prevented lawyers from meeting their clients, accessing case files and collecting evidence, practices commonly known as the 'Three Difficulties' (Halliday & Liu, 2007;Michelson, 2007). Meanwhile, the 1997 Criminal Law revision added the crime of lawyer's perjury (Article 306), which soon became a powerful weapon used by the procuracy to threaten and retaliate against criminal defense lawyers (Halliday & Liu, 2007;Liu et al, 2014).…”

“…Otherwise, the media represent lawyers as sophists who abuse their legal knowledge. The overall image of Chinese criminal defense lawyers both mirrors and aggravates their professional difficulties in everyday practice (Michelson, 2006(Michelson, , 2007Halliday & Liu, 2007;Liu & Halliday, 2011).…”

Suing the Leviathan—An Empirical Analysis of the Changing Rate of Administrative Litigation in China

“…There are so few such lawsuits each year, and representing clients in those cases carries higher risk than civil cases, so a very small percentage of Chinese lawyers specialize in administrative litigation outside Beijing. In other words, while some lawyers may take on criminal and administrative cases to supplement income (Liu & Halliday ), very few would specialize in those two areas and even fewer would relocate because of a higher ratio of administrative litigation in another province.…”