Legal and Political Education With Chinese Characteristics (通过法学院将法律教育专业化，通过政策学院将政治教育制度化)

I have been reading article on Chinese Legal Education authored by the American scholar Carl Minzner, The Rise and Fall of Chinese Legal Education, Fordham International Law Journal, Vol. 36, No. 2, 2013. Some preliminary thoughts. (最近拜读了Carl Minzner教授的《中国法律教育的起落The Rise and Fall of Chinese Legal Education》(Fordham International Law Journal Vol. 36, No. 2, 2013)一文，受益匪浅，文中对中美两国法律教育的现状与发展做出了深刻的讨论。同为一名法律教育者，在这里就Minzer所涉及的问题提出一些初步的想法)。

(Pix (c) Larry Catá Backer 2013)

One of the most interesting points Professor Minzner makes is that the current bubble in Chinese legal education is causing officials are having to rethink legal education as a response to stress in the model developed over the last twenty years.  Having produced a generation of lawyers and law students who are now increasingly more prominent voices for political reform through law, and hungry for jobs (which require the development of markets for lawyers in the absence of otherwise available jobs), Minzner suggests that Chinese officials are seeking to retrench the legal educational model.  Legal education has foundered, Minzner argues, and officials are seeking to return to models from the past.

This post suggests why this retrenchment makes sense and how it better conforms legal education to the framework of Chinese constitutional organization. Put differently, to appropriately reform legal education in China to conform it to the logic of the system in which it operates, it may be necessary to professionalize legal education for lawyers through law schools and to institutionalize political education for cadres through Party Policy schools.

Professionalize legal education for lawyers through law schools; Institutionalize political education for cadres through Party Policy schools--通过法学院将法律教育专业化，通过政策学院将政治教育制度化

In the United State, lawyers exercise both administrative and political functions (through constitutional litigation for example. This reflects the close connection between political and legal cultures in the United States, one that has been formalized through the U.S. Constitution and its system. But China is different and a recognition of the foundational differences in Chinese constitutionalism suggests the very different effect of changes in legal education in China. In China there is a constitutional distinction between the administration of law through the state apparatus and politics and policy through the Party apparatus. Thus, the consequences of current move to professionalize and narrow the scope of legal education in China is distinct from similar moves in the United States--to professionalize legal education for lawyers work will narrow the role of lawyers to the administrative aspects of law; that narrowing will require institutionalizing political work for cadres through the Party:

1. Professionalization of  both legal and political education should make them more technocratic, that is more focused on the understanding and application of law. That professionalization harmonizes the training of lawyers to focus on law as an expression of the administrative power of the state exercised through its government under the Constitution, while opening the way for the institutionalization of training in political guidance, that is on the political considerations (constitutional policy and premises), to the CCP as contemplated under the Chinese constitution.


2. Political work falls outside the legal work of lawyers; just as law falls beyond political work in China. Organize legal profession as “administrative”, and trained to serve to ensure the appropriate application of law as administrative regulations developed through the state apparatus. Political work, however, falls to the jurisdiction of the Party. Structural policies within which the state apparatus may make and apply law is not legal but political work. That is work that falls to the Party apparatus as their fundamental duty to the nation. Institutionalization of that role is as necessary for the Party is as important as the professionalization of legal education for lawyers.


3. Organize law schools as institutions that train lawyers as professional administrators of law (similar to the training of doctors in Medical school), and leave to the Party the development of institutionalized educational programs for politics and policy, mentoring and training cadres for their responsibilities. Currently Party Schools are beginning to function in this way. Just as law schools are being reformed to focus more narrowly on law (within its limits), Party schools should be reformed to better to serve as as institutions for professional political training.


4. As a result--professionalization of legal education will serve to narrow the scope of training of lawyers to conform to the scope of law within the Chinese system and harmonized with the administrative character of law derived from a Constitution which frames the regulatory authority of the state. But political guidance, the framing of administrative authority falls to the Party, not lawyers. For both lawyer and Party cadre education is necessary and tailored to their function..for lawyers professionalize legal education, for Party members institutionalize political work.

通过法学院将法律教育专业化，通过政策学院将政治教育制度化

最近拜读了Carl Minzner教授的《中国法律教育的起落（The Rise and Fall of Chinese Legal Education）》(Fordham International Law Journal Vol. 36, No. 2, 2013) 一文，受益匪浅，文中对中美两国法律教育的现状与发展趋势做出了深刻的讨论。同为一名法律教育者，在这里就Minzer文中提到的中国法律教育专业化这个问题发表一些初步的个人看法。

中 美两国的法律教育体制都在走着“专业化”这条路。在美国，律师这个职业同时承担了行政与政治功能（例如通过宪法诉讼），这反映了美国“政治文化”与“法律 文化”之间有着密切联系，而这种政治（或政策）与法律（或行政）结合的传统又通过《美国宪法》这个建构得到进一步的制度化与规范化。但中国制度与美国不 同， 在中国，政治工作超出了律师的法律工作，法律也同时超出政治工作。从宪法的角度上来讲，中国国家政府机构的行政功能不同于CCP的政治功能，也就是说，法 律 与法规通过政府机构来执行，而国家基本路线与政策则是由CCP来确定。

由此而言，中美两国法律教育专业化改革的性质是不同的。中国法律教育的专业化是让法学院成为一个专门培训律师作为“职业法律管理员（professional lawyers as administrators of law）”的教育机构，把法学院的教学重心放在法律的行政功能上，从而将中国的法律职业定位在行政方面。与此同时，决策层干部的职业化也可以通过CCP框架下的专业政策教育机构（即党校）来完成。

法律教育与政治教育的专业化从某种方面上来讲反映了一种“专家治国（technocratic)”的模式，它可以提高法律与政治工作的技术性，同时也让这两种职业更加符合中国的宪政秩序。中 国体制下行政与政策的分权意味着需要将法律职业组织为一种“行政性”职业，让训练有素律师们帮助确保法律与法规的合法实施。法律规章的开发与实施是国家机 器的职责，然而政治工作则属于CCP的辖权。CCP的中心任务之一就是酝酿并确定国家的基本政策与路线方针，这些职责都是政治工作而不是法律工作。对于中 国而言，党员干部政治工作的规范制度化与律师法律工作的专业化都是非常重要的，就像法学院正在向法律专业化的方向发展，作为政策学院的党校体系也应该朝着 提供高质量专业政治工作培训的方向接受相应的改革。