In a number of legal systems around the world, governments and sometimes court systems have institutions or practices in place to bring legal academics into government service and sometimes into the courts (and there are also professionals going the other way round). My former Havard Law School contracts professor, Charles Fried, illustrates that, as he served as Solicitor General and an Associate Justice of the Massachusetts Supreme Judicial Court. Similar practices occur in civil law countries–German law professors are often appointed to either the German or European judiciary. This type of practice has the advantage of bringing some new thinking and ideas into the bureaucracy or judiciary, and for those who return to academia from government service, it grounds their scholarship in the real world. Harold Koh, of Yale Law School, is an exemplar, having spent almost three years as the US State Department’s Legal Adviser during the Obama administration.
What about China? Chinese academics generally go directly into teaching without any experience in practice and when they advocate certain reforms, they may not understand the institutional environment (the “system” (体制).
Several years ago a system was put in place to bridge the worlds of academia and “the system,” that took one friend teaching in a Chinese law school into a local court, and has taken several others into the Supreme People’s Court (SPC). That system is the temporary assignment/transferred duty (挂职锻炼 guazhi duanlian) system. I’ll use the term guazhi.
“temporary assignment” (挂职)
As I wrote in my 1993 article, the courts (including the Supreme People’s Court (SPC)) have long used the guazhi system. Back then (and now) it is used to send cadres (of which judges are one type) to the basic level or at least the lower level for some “real life” experience (while retaining their upper-level position) and often is the prelude for promotion. The system has finally caught the attention of political scientists outside of China, as some recent academic articles attest.
Under the guazhi program that these friends participated in, academics go into the courts and procuracy for one or two years, depending on the institution. The basis for the guazhi system between legal academia and the courts and other legal institutions was originally a 2011 joint document between the Central Political-Legal Committee and the Ministry of Education, Some Opinions on Plans for Cultivating Outstanding Legal Talent (教育部 中央政法委员会关于实施卓越法律人才教育培养计划的若干意见). This document has been updated to incorporate the latest policies on training high-quality legal professionals in the post 19th Party Congress new era.
In October 2018, the Ministry of Education and Central Political-Legal Committee issued an updated (2.0) version of this document. The guazhi system must have been assessed as worthwhile, successful, and helpful in training legal professionals for the new era because it remains firmly in place: “select core law school legal academics to go to the operational departments of the legal system for temporary assignment” (选聘高校法学骨干教师到法治实务部门挂职锻炼).
The full text of the document (关于建立人民法院与法学院校双向交流机制的指导意见), that the SPC issued to implement the 2011 joint document appears not to have been released, and it is too soon (as of this writing) for the SPC to have updated its earlier document. The requirements for guazhi scholars are clear from the notice soliciting applications. The small number of scholars posted to the SPC must commit for a two year period, may sit as judges (they are appointed as deputy division chiefs or their equivalent and confirmed and removed by the National People’s Congress Standing Committee), must be recommended by their home institution, meet both (the standard) political and scholarly requirements, and be under the age of 55. They must work at least two days a week or at least 100 hours a year and may commit to the SPC either part or full time.
SPC guazhi scholars have included:
In the field of international/cross-border law, Liu Jingdong of the International Law Institute of the Chinese Academy of Social Sciences and Shan Wenhua of Xi’an Jiaotong University. A few searches show that Professor Liu, who was posted to the #4 Civil Division (dealing with cross-border issues) worked on some of the important issues that the division is dealing with: maritime law, arbitration, free trade zones, and Belt & Road. Professor Liu’s farewell to the SPC #4 Division gives a flavor of the issues that the division is dealing with as well as the long hours worked by its judges（and may go some way to explaining why guidelines on the operation of the China International Commercial Court have not yet been issued).
Criminal law: Lin Wei of the China Youth University of Political Studies and Lu Jianping and Liu Guangsan of Beijing Normal University. Professors Lin and Lu have both commented on death penalty-related issues.
Administrative Division: Wang Xizhuang of Peking University.
The scholars are all from leading institutions and many of them have some experience outside of China. Several of them were asked to stay beyond the original two years, indicating that they were well-received. The vast majority have been men.
The bottom line is–does guazhi work for both the institution and the individual? In theory, guazhi in the SPC should benefit both sides–the academics, who generally lack practical experience, the SPC, by having another pair of senior hands to work on research linked to drafting judicial interpretations and other policy documents with some fresh ideas, including ideas based on research or experience abroad.
But it likely depends on other skills of the individuals involved. Are the scholars able to adapt to the culture of the hierarchical Chinese court system? Do their temporary colleagues help them to adapt or do they step away? Are they able to communicate with senior court leaders in the required language? When they discuss cases, visit local courts or train local judges, are they able to leave academic jargon behind? One knowledgeable person suggested that the best guazhi scholars are able to influence senior leaders in a positive way, bringing new ideas into the bureaucratic court system, while another noted that unless guazhi scholars work full-time, their contribution will be limited, as they fail to harmonize with the way the system operates.