Yale Law School Professor Paul Gewirtz was never a U.S. diplomat, but in the 1990s he was sure he had a worthy lesson for those who were. The professor’s idea, which he informally promoted among his friends for years, was simple: rather than addressing only diplomatic issues of direct interest to the United States, why not support legal reforms within other countries?
The professor, an expert in comparative constitutional law, saw the promotion of civil society internationally as a neglected way to advance a host of U.S. and global interests, from supporting economic development to combating global crime.
The difference between Gewirtz and many other people who have good ideas was the friends with whom he was sharing them. Among them were Strobe Talbot, then the deputy secretary of state for the Clinton administration, and Sandy Berger, President Clinton’s national security advisor.
So in 1997, when Chinese President Jiang Zemin came to the United States for a summit with Clinton, the administration called upon Gewirtz to try to put his ideas into action. The upshot, after much negotiating here and in Beijing, was the U.S.-China Rule of Law Initiative. Today that initiative is embodied in the Hewlett-funded project of which Gewirtz is the director, The China Law Center at Yale Law School.
“So much of the rest of the relationship between China and the United States is about complaints,” Gewirtz explains. “We complain about trade; they complain about Taiwan. The Law Center is a place where we can work together without complaints. A whole range of foreign policy interests can be served by strengthening legal institutions in other countries. Our foreign policy wasn’t giving enough attention to that.”
The Law Center, now in its ninth year, has offices in Beijing and New Haven, where a small staff of American lawyers and scholars work with visiting Chinese counterparts to study ways to professionalize China’s legal field and further the rule of law. In Beijing, the Yale-Peking University Joint Center for Legal and Policy Reform gives the effort legitimacy and the means to interact with Chinese partners, which include government officials, lawyers, and activists pressing for reforms from outside the government. The Joint Center also works with scholars at Peking University, Renmin University of China, Tsinghua University, China University of Political Science and Law, and Shanghai JiaoTong University.
Improving the lives of Ordinary Chinese
The Hewlett Foundation is funding the Law Center’s work in the belief that reforming and professionalizing China’s legal and regulatory systems can make a significant difference in the lives of ordinary Chinese. Increasing the transparency and responsiveness of China’s legal system can provide citizens with recourse against illegal or arbitrary government actions and strengthen individual rights.
Extraordinary as it may seem for China, a colossus on the world stage, the evolution of its legal and regulatory systems still lags far behind its burgeoning economic influence.
Traditionally, Gewirtz says, Chinese law was shaped by Confucian values and imperial notions of the law as a tool for governing. After the Communist takeover in 1949, Soviet legal precepts entered the mix, but legal standards as a whole took a back seat to state control. Then came China’s Cultural Revolution, which ostensibly was intended to continue revolutionary class struggle.
“What happened during the Cultural Revolution and until Mao’s death was that the legal institutions were comprehensively destroyed,” Gewirtz says. “By 1979, the entire country had just two law schools and 3,000 lawyers. [Today there are more than 100,000.] Police had tremendous powers, the courts were rubber stamps, and there were all sorts of informal enforcement schemes. There wasn’t a professional class or an economic system that made rules important. It was all top-down orders that were enforced.”
All that began to change as China liberalized its economic policies to allow private commerce, but Gewirtz says he thought early on that there was the potential for something more.
“That’s the cliché version,” the professor says of those who thought Chinese leaders were interested only in reform to support commerce. “I thought from the beginning that that was much too simplified. The Law Center’s focus is not on business law. It’s on individual rights.”
Gewirtz notes that the current generation of Chinese leadership was interested in developing legal protections for individuals in part because these leaders were among those who had been traumatized by the excesses of the Cultural Revolution.
“They saw that anyone could be caught up in them,” he says.
China Sees Need for Change
Other factors also were in play, he adds. Leaders saw that intransigent bureaucracies could stifle their goals for the country as much as any excessive revolutionary zeal. And the process of opening China to the outside world has led to increasing awareness of individual rights on the part of its people, Gewirtz says.
“The leadership felt it needed to respond to that,” he says. “With major social changes, you obviously are going to be generating grievances. And when that happens, there are either orderly processes to deal with complaints or you have protests. Together these factors led to a broader interest in legal reform that went beyond commercial law.”
Professor Wang Xixin of Peking University Law School, a leading Chinese legal scholar who has worked closely with the Law Center, says it occupies a unique and valuable place in promoting legal reform in his country.
“Its works have constantly focused on practical and critical innovations in the Chinese legal system,”
Professor Wang says, adding that the Law Center is unique in its sustained working relationships with Chinese legal reformers and such high-level government institutions as the Supreme People’s Court and the Standing Committee of the National People’s Congress.
Today, the Law Center is focused in three areas-judicial reform, constitutional law and civil rights, and administrative law and regulatory reform-all areas where reforms can have a significant affect on the lives of ordinary Chinese.
Gewirtz and Wang say the greatest progress to date has come in contract law and administrative law. In the latter category, one of Gewirtz’s colleagues at the Law Center, Deputy Director Jamie P. Horsley, has been working with the Chinese to implement a regulation, set to take effect later this year, to govern the release of government information. The hope is that this eventually will lead to government freedom of information laws similar to those in the United States and, increasingly, in other countries.
Gewirtz believes laws like this, and those that allow public comment on proposed laws and regulations, mark important steps forward.
“They change the government’s relationship to the people and start to acknowledge that the public has a right to have input in the making of the laws,” Gewirtz says. “And that’s a big step.”
The professor notes that, while true judicial independence does not exist in China, Chinese colleagues have made significant progress in professionalizing the courts and improving litigation procedures. He also says there has been progress in discrimination law, which in a Chinese context often involves migrant workers or carriers of hepatitis B.
Still a Long Road Ahead
Of course, Gewirtz is quick to note that changes in the government’s relationship to its citizens through legal reform “doesn’t necessarily mean democracy in the sense we understand it,” and that in political cases, “all bets are off.”
Adds Professor Wang, “The rule of law requires that all powers are restrained by law, yet there are still existing powers that are not well regulated by law. How to further regulate the relationship between the [ruling Communist] party and the law might be a great challenge.” According to Wang, legal reforms such as constitutional review and judicial independence are both relevant to this challenge.
One area where Chinese and American legal scholars have had less success is criminal procedure.
“The Chinese police are extraordinarily powerful,” Gewirtz says. “And they do not want constraint on their powers. So if you want to develop a system of criminal procedures that respects individual rights and puts constraints on police, you face incredible opposition.” In the United States, he notes, it took the Supreme Court to uphold prohibitions on unlawfully extracted confessions. Still he remains optimistic.
“There is a lot of support for a lot of reform,” Gewirtz says. “The ultimate question is how far it can go.” Thus far, he contends, the progress made since the 1970s has been formidable.
“Thirty years seems like a long time, but in historians’ time, the changes that have taken place have been breathtakingly fast. This is a long-term effort. Hewlett appreciates that. Change won’t happen overnight.”
But Professor Wang adds that the importance of the goals makes the work more than worth the effort.
“Legal reforms will bring us closer to key human values such as justice, individual freedom, and quality of individual life,” he says. “In geopolitical terms, they also help maintain the peaceful and stable development of the country, facilitate free trade and investment, and improve China’s cooperation with the rest of the world.”