Dialogue as The Rule of Law

By John W. Smagula

“To build a country based on the rule of law.” Yi fa zhi guo

This famous statement, made in September 1997 by then Chinese President Jiang Zemin, has become a common theme in many Chinese legal reform efforts. This pursuit of the rule of law has many goals, including the creation of transparent norms, consistent application of law and development of fair judicial and prosecutorial systems. 

To accomplish them, the Chinese government has taken on a number of initiatives to educate judges and other public sector legal personnel, expand and improve legal education for law students and raise the overall legal consciousness of the populace. Against the backdrop of China’s entry into the WTO, hosting of the 2008 Summer Olympics and increasing political and economic ties around the world, this development of the rule of law is viewed as an important part of membership in the global marketplace 

Despite the enormous trade imbalance between China and the United States, there is one thing that China does import: studies of American law, legal processes and reasoning. Chinese legal professionals in the public and private sectors frequently look to the U.S. as a significant reference for legal reforms in China. Many court systems, prosecutor offices, government agencies and universities have foreign affairs offices and research arms responsible for promoting international interaction. Chinese law students routinely write their theses on issues of Sino-American comparative law. 

As exposure grows, national and local legislative drafting bodies include U.S. legal principles in Chinese laws. In some instances American law models are formally adopted, such as certain sections of the Chinese contract law, property rights law and criminal procedure code. The influential Supreme People’s Court judicial interpretations frequently reference American law. 

These opportunities for legal exchange provide a myriad of options for Americans who wish to become a part of this growing dialog. Temple University was one of the first educational institutions in the U.S. to become engaged with China after the re-establishment of diplomatic relations between the two countries by awarding an honorary doctorate of law degree to Deng Xiaoping in 1979.

Aware of its presence in Asia with a well-established Tokyo campus, and its reputation in international law, the Chinese government in 1997 invited Temple University Beasley School of Law to open a program in Beijing. The law school was to help China establish the rule of law, with a functioning legal system based on an independent judiciary in order to fully participate in the global economy.

After a series of high-level negotiations, Temple welcomed its first Beijing Master of Laws (LL.M.) students in 1999. The 2007 class is the seventh—and largest—with 46 students, bringing the total number of past and present students to 257. As in previous years, classes include recent university graduates as well as experienced professionals. Recruiting is underway for the class of 2008. 

Although the program is open to anyone in China who has graduated from law school, 63 percent are from the public sector: judges, prosecutors, legislative drafters for the National People’s Congress and State Council, patent examiners for the State Intellectual Property Organization and legal officials at the China Security and Regulatory Commission and Ministries of Commerce and Justice. 

Public sector graduates and students also include those in the non-profit world, including law professors at well-known universities and legal staff at NGOs that work in the areas of women’s rights.

Some of the graduates are the very judges who are now putting their Temple education into practice by including more reasoning in their judicial decisions, implementing adversarial techniques in their courtrooms and influencing their peers in chambers and judicial conferences. Prosecutors report that the reasoned use of evidence and evidentiary techniques has become a larger part of their day-to-day practice. 

Officials are creating procedures for their agencies, both through the creation of administrative tribunals for public hearings and the drafting of regulations for the purpose of legislative and public policy. Commercial lawyers credit their participation in Temple’s top-ranked trial advocacy program for giving them a leg-up in all aspects of their work, corporate or litigation, by providing fresh tools and ideas for legal reasoning, analysis and persuasion. Many graduates have been promoted in their government agencies and firms. 

The Beijing LL.M. is designed to give students a strong grounding in U.S. and international law principles. The 15-month program begins with an intensive, state-of-the-art legal English program, designed to provide a foundation in legal reasoning in English in preparation for further studies. During the five subsequent academic terms, each eight-weeks long, students take core classes that include constitutional law, contracts, legal research and writing, property, trial advocacy and torts. Elective courses, which during the earlier years of the program focused on business law, expand into offerings in criminal law, criminal procedure, human rights and intellectual property, reflecting the growing levels of legal exchange and interests of the students.

To harness this extraordinary energy, Temple graduates created the Temple Law Alumni Association of China (TLAAC) to promote opportunities for the alumni to network, share ideas and report on their professional progress. TLAAC meets in late October at the annual alumni banquet in Beijing, following the graduation of that year’s Beijing LL.M. class, and also has formed regional chapters in Shanghai and Guangzhou. The main interface is the Chinese-language web site (www.templelaw.net), which includes Temple news, association announcements, alumni postings and job opportunities. An updated directory with photos and contact information is published and distributed every year.

With the LL.M. program as a foundation, Temple Law has worked with its partners to create other rule of law initiatives. Temple signed an agreement with the Supreme People’s Court in 2000 to carry out intensive judicial education programs, and then in 2003 with the Supreme People’s Procuratorate to run prosecutor education programs. Generally four-months long, these sessions include three months of legal English and U.S. legal system training offered in China, followed by one month of intensive education and site visits in the United States. Participants in these programs are usually high-ranked officials in Chinese courts and prosecutor offices, able to make influential decisions and carry out reforms.

In the scholarly realm, Temple Law’s Institute of International Law and Public Policy has hosted a series of summer roundtables on emerging areas of Chinese law. The roundtables include top scholars from the U.S. and China, who meet for one month of research and exchange, culminating in a final roundtable to share ideas and publish articles on the topics in question. Temple Law has also been on the forefront of health law education in China, hosting a curriculum development workshop to train Chinese academics in the key health law fields. 

To carry out these programs, Temple has also formed partnerships with public and private donors in the U.S. The Starr Foundation has provided generous support to the rule of law program, Alcoa and Exxon Mobil provide direct support to the judicial education program and DuPont gives scholarship aid to the Beijing LL.M. program. The Bureau of Democracy, Human Rights, and Labor of the U.S. Department of State and previously the U.S. Agency of International Development also have been consistent contributors to the full range of programs. 

All donors are invited to be actively involved by delivering lectures, communicating with students and alumni, and taking part in networking activities. Through these interactions, the donors have helped shape the Temple Law program while also creating long-lasting friends and colleagues in China. 

The international law firm of Reed Smith provides one-month internship opportunities to Beijing LL.M. students after they complete their fourth term, which is the summer session held in Philadelphia. Capitalizing on this resource, Reed Smith delivers firm-wide education on issues of Chinese law through its Reed Smith University initiative while also gaining lasting contacts in the Chinese legal community. Similarly, the international trade law firm of Adduci, Mastriani & Schaumberg has become involved with the LL.M. program by working with the alumni network to explore practice development opportunities in China.

Temple Law maintains ongoing contact with U.S. government agencies interested in China by providing opportunities for federal officials to interact with the students. As part of the students’ annual summer visit, the Departments of Commerce, Justice, and State have hosted delegations of Beijing LL.M. students. Likewise, each year U.S. Supreme Court Justice Antonin Scalia addresses the students during a special session held during that time. Through systematic evaluation and data collection, Temple Law also stays connected to LL.M. alumni for ongoing assessment of the program’s impact on the rule of law in China. 

Students from the public and private sectors routinely report that their Temple education equipped them with enhanced analytical skills and increased abilities to analyze problems from multiple angles. They also say they now adhere more to rules and procedures in their jobs, adopt U.S. reasoning styles in their judicial decisions, integrate more evidence in their indictments — and more robustly challenge evidentiary gaps in criminal defense. Some judges are experimenting with pre-trial conferences and adversary proceedings, while law professors infuse their scholarship with examples of U.S. law, employ U.S. legal education methods in their classes and elevate their comparative research to greater heights.

All students report that their greater English competence allows them to stay active in their engagement with the global legal community, through ongoing interaction with their peers in the U.S. and by conducting ongoing legal research on topics related to their jobs, whether they are legislative drafters needing foreign models, administrative officials conducting proceedings in new areas of law, or lawyers needing to bolster their arguments.

Temple also believes its China program enhances the overall law school community. In recent years, more than a dozen faculty members have become involved, either in China or when the students visit the Temple’s Philadelphia campus. This interaction has brought about a greater consciousness on issues of Chinese law, with faculty embracing additional projects such as collaborative research, targeted training programs and joint publications. Temple J.D. students also receive access and resources, through their own study abroad experiences in China, during U.S. visits of Chinese delegations and students, or simply online to promote greater communication between the campuses.

Temple Law invites the legal community to become involved with its initiatives in China by sponsoring students in Beijing or hosting interns in their firms, both effective methods for greater access and communication with the students. Corporations with an interest in Chinese legal affairs are encouraged to sponsor programs and also address the participants on legal issues of importance to the company and to development of law in general. 

Temple views this rule of law program as an important contribution to the development of the Chinese legal system. Taken step by step in collaboration with government and university partners in the U.S. and China, it is seen by all involved as productive, respectful and innovative. Temple hopes that this legal dialogue will only strengthen and grow as China becomes a larger player in the global economy.

About the author: John Smagula is director of Asian Programs at Temple University Beasley School of Law. For more information about or to participate in Temple Law’s programs in Beijing, contact Smagula at: 215-204- 8953, or jsmagula@temple.edu

 

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