Editor’s note: On Feb. 21, 2025, Hualing Fu gave a talk at NYU Law School called “Pro Bono as Political Control: Public Legal Services in China,” based on a draft research paper. What follows are lightly edited excerpts from that talk, which was delivered in person and livestreamed. Fu is the Warren Chan Professor of Human Rights and Responsibilities and dean of the Faculty of Law at the University of Hong Kong. He is teaching at NYU School of Law during spring 2025 as the Jerome A. Cohen Visiting Professor of Law. A recording of the talk can be found here.
By Hualing Fu
Pro bono has been primarily conceptualized as a payback to society by a privileged profession. Occasionally it is characterized as a commitment of lawyers to the public interest. Using the Chinese case as an example, I argue that pro bono work can serve as a tool of political control in specific contexts. By control, I mean the ability of the government to frame a dispute and to determine the course and the direction of legal action.
My principle argument is that disputes can be seen as property, and that their ownership has been at the heart of the contention over the control of lawyers in China over the past few decades.
Disputes can be used and abused for political objectives, depending on how they are framed. For the government, social forces led by lawyers, some of whom can exploit social conflicts, using legal services as an entry point to challenge the state, both legally and politically. When that happens, the state seeks to reassert its authority by reclaiming ownership of disputes and the power to frame them or reframe them.
Legal aid can either be framed as provision of welfare measures provided by a benevolent and paternalistic government, or an opportunity to claim one's rights against arbitrary power. For example, domestic violence should be prohibited because prohibition can prevent further escalation of violence, so the battered women's syndrome does not develop and women do not kill their abusive husbands. Or [it can be framed] as the legal empowerment of abused women to assert their rights. Labor disputes can be framed as a mere violation of a contract term, or as a failure of workers to organize themselves, bargain collectively, and take industrial action. A final example would be: a religious persecution can be framed as a lack of or mishandling of evidence on the part of police or prosecution, or a violation of constitutional rights of religious freedom. Framing is consequential, and lawyers can potentially be very important in framing disputes and conflicts.
Framing is consequential, and lawyers can potentially play a very important role in framing disputes and conflicts.
There's no equivalent to “pro bono” in Chinese - I presume in English either. The term often used in the Chinese context is either “legal services,” “volunteers,” or “legal aid.” In this paper I use “legal aid” to capture what I'm trying to convey. Chinese law guarantees free legal services for the poor and special groups of people, such as the victims of domestic violence, good Samaritans in civil disputes, or families of heroes, revolutionaries, and martyrs in defamation cases. In policy, the scope of coverage is broader. For example, China seeks to provide legal aid to all criminal suspects and defendants who cannot afford a lawyer.
Chinese law imposes double duties: a duty on lawyers to provide legal aid services when appointed, and on the government to provide a standing budget for legal aid. So the bureaus of justice in China, the government regulators of the legal profession, are duty-bound to appoint legal aid lawyers and pay them for their services directly. It is very similar to the legal aid systems in Germany, Poland, and other European countries. It's a combination of the lawyers’ professional responsibility to serve and the government’s duty to pay.
In that sense, lawyers in China are quite essential actors in legal development, and the government is quite determined to bring the profession under control in multiple ways. By 2015, the [Communist] Party and government became very suspicious of lawyers and other civil society actors. For the party, putting it in an extreme way, an “enemy force” was emerging in the legal profession. I paraphrase one editorial in the People's Daily:
“They [lawyers] thought they were subverting the socialist system, relying on foreign support, weaponizing people's grievances, and using the system to change the system.”
In response, the party resorted to criminal prosecution, professional discipline for leading activist lawyers, effectively removing them from the legal profession through criminal punishment and professional discipline. It also created party cells in all law firms, requested partners to join the party, and recruited party members among lawyers, from roughly 35% to almost 50%. It has put the legal profession on notice.
But at the same time, as the repressive moment and the re-orientation of the profession was taking place, the party and the government did something that in my view is quite extraordinary. That is, the procurement of legal services from lawyers and the creation of a public legal services platform with quite innovative designs to bring lawyers on board and become more “state adjacent,” which has been a term commonly used in research.
Of course, government spending on legal aid is good. At a time when most governments globally are reducing their contribution to legal aid, China probably is a shining example of providing legal aid assistance to the poor and vulnerable. But the key point here is the expansion of legal aid allows the government to reclaim ownership of disputes and enhance government control over the dispute process through embedding lawyers in the state system.
[E]xpanding legal aid allows the government to reclaim ownership of disputes and increase government control over the dispute process by embedding lawyers in the state system.
Public legal service in China: three stories
I will tell three stories. The first is a political story, the second is a economic story, and the third is a professional story, to highlight the message I’m trying to convey.
The political story
Few laws in China, in my view, are as politically significant as the Lawyers’ Law of 1996, which delinked the profession from the state, forming at least theoretically a proper legal profession with its own identity, financial autonomy, and freedom in practice. By socializing the profession, the party gives away direct control over a potentially powerful institution. … The socialization transformed lawyers from state workers, as they used to be called, working for, paid by, and accountable to the government, to a profession — as the Lawyers’ Law said — responsible for the interests of their clients. When lawyers emerged in 1996 in the legal market as free professionals, they were embraced by what I would call a “decade of rights” of the 1990s, in the sense that most of the legal rights in the statute books in China were created in that decade — including the rights of disabled, consumers, women and children, criminal suspects and of course, lawyers — [and] are accumulating in the signing of the ICCPR [International Covenant on Civil and Political Rights] and the ratification of the Covenant on Economic, Social, and Cultural Rights.
Under these unique political circumstances, lawyers and their friends and supporters began to put some of the constitutional rhetoric into practice, aiming for some structural changes through law and legal action. Modelling principally on the American experiences of public interest litigation, impact cases, and social and legal movements, lawyers, NGOs, and social media formed what I call a “rights complex.” Lawyers worked with NGOs to reach out to communities, using litigation as a legitimate entry point into the legal system and the public sphere, relying on social media to mobilize broad social and political support, and organizing online/offline activities parallel to the legal process, and of course often with the backing of overseas funding sources. They aimed at broad policy and legislative change and, more significantly, some structural and transformative changes. Their agenda is to change the system through individual legal cases and to change the system through the system, as it was called. Alarmed by the real or imagined political challenges in the context of a global “color revolution” allegedly aimed at regime change, the party pushed back systematically and very forcefully, ideologically and institutionally. That is well documented by researches such as Eva Pils and others, so I am not going to say too much about that point.
[T]he party seems to have come to a clear understanding that for ordinary social and economic matters, a legal process is the best process.
One point I want to reiterate is that while the party may have tended to be more authoritarian and repressive in many aspects in taking certain spheres out of law, subjecting them to its own prerogative powers, it has also addressed grievances and disputes in the remaining spheres through the legal mechanism. Thus, the party seems to have come to the clear understanding that for ordinary social and economic matters, a legal process is the best process, preferable to the police coercive power. A legal system cannot function of course without assistance of an effective legal profession, of course guided by state objectives. But lawyers need to be nudged to play a constructive role in the new era.
The economic story
The economic story is a simple one. What is the solution? The solution is the government procurement of legal services. It was initiated in the 2000s, but gained momentum under Xi’s leadership. The aim is to introduce market elements to the social services. Government spending on procurement is very substantial. I think it reached 100 billion [CNY] in 2022. Of course the legal service is only a small part of it.
So what are public legal services? I will just give you a few examples. One is called “3+X,” a government-built platform, physical or virtual. The three will include legal aid, mediation, and legal advice, and “X” will be something that lawyers can do according to the local circumstances. There are two components. One is public-facing legal services, which means providing legal services on issues related to people's livelihood, local governance, and stability. The government-facing public legal service is mainly inviting lawyers and legal scholars to provide legal advice to the party and government committees. There are paid, full-time positions. They hire from the legal market or universities. The third is dispute resolution through contracting out, where law firms and lawyers are invited to enter into agreements [with the government]. Under these agreements, lawyers are tasked with resolving disputes in specific communities or providing mediation services annexed to labor arbitration commissions of the courts. The final example is duty lawyers to be stationed in detention centers, which this institution [the U.S.-Asia Law Institute] has studied closely for many years.
One parallel aspect, which is very significant but is normally not regarded as part of the public legal service, is the expansion of public interest litigation, controlled by the procuracy. China has expanded public interest litigation, but it's mostly dominated by the state. According to the Supreme People's Procuratorate, for example, in 2023, procuratorates initiated over 95% of public interest litigation in China. Basically they won almost every case in court. The implication will be that civil society organizations and lawyers who independently pursue public interest law will likely retreat further into the shadows.
The professional story
Finally let me spend just a few minutes on the professional story. As a general rule, since 2019, a lawyer should provide legal aid, as defined by the government, in not less than two cases per year or legal services of not less than 50 hours. There are, of course, significant local variations. The Chinese concept is both narrow and broad. It's narrow in the sense that the government exclusively determines what counts as legal aid services. If the task is not on the list, or if you are not invited by the government, it is not regarded as legal aid services in the sense of government procurement of services. But it is also very broad in the sense that ordinary legal services out of court are potentially limitless. In one province, for example, they include “legal propaganda” (普法). By the way, propaganda is a positive term in the Chinese language. That includes providing legal services around significant dates such as March 8, Women's Day; March 15, Consumer Protection Day; and December 4, Constitution Day. Lawyers go to villages, go to schools, go to the streets to offer legal services. One important example is to persuade lawyers in the south and eastern regions to spend a year or two in the western regions. It has been very popular, there are lots of people going to Tibet for one year serving as legal aid lawyers or government advisers. That has become a highlight of the public legal services.
The question is why lawyers are happy and rush to provide government legal services. There are two reasons. One is because legal aid in China is paid. In the past few years, the payment has become quite meaningful. In southern China for example, in one particular city, if you handle one case, you are paid 3,000 CNY. Not too bad, right? Given the salary of an entry-level lawyer, it’s probably about 8,000 CNY per month, so if you handle three cases, it’s more than one month's salary.
The flip side is that China now has too many lawyers. You may be surprised to learn that over 60% of Chinese lawyers entered into the profession after 2017. The meaning is that China's legal profession may be collapsing on its own success, creating a generation of young, inexperienced, and grossly underpaid lawyers who are quite desperate, responding to the call of the party to participate in legal aid services.
There is also a strong ideological dimension. The party has called on lawyers to participate and it has become a political necessity to be part of the larger public legal services. But the expansion of paid legal aid creates two problems. One is how the decision is made. Not everybody is eligible. They need to apply. The process of determining who can be a legal aid lawyer is opaque, to say the least. There will be lots of allegations if you are not picked. … The more significant one, of course, is political censorship. As the Legal Aid Law said very expressly, the government admits legal aid lawyers according to their merits, both professional and political. Political reliability is a key requirement. You cannot be a government-facing lawyer giving advice to party committees and the govenrment unless you are regarded as politically reliable. As one local regulation says, Communist Party members will be preferred.
Pro bono serves [the state’s] political agenda. If that trend continues … the legal profession will soon be re-embedded in the state.
So, in conclusion, I would say that with attractive payment, the range of legal aid schemes, political vetting of participating lawyers, and the management of legal aid through contracting and other accountability mechanisms, the government can control the framing of disputes and the direction of the legal process, ensuring effective and managed resolution of disputes, so that the legal system will not produce shocks. In that sense, pro bono serves its political agenda. If that trend continues, the caveat is subject to the capacity of the government to continue paying the lawyers, the legal profession will soon be re-embedded in the state.
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Q: Your thesis contradicts something that has been a popular notion outside of China, in the way that scholars of China have told a story … that China under Xi Jinping has turned away from law. The story you are telling is much more complicated than that. I want to invite you to comment on that. Also, you said that the 1996 Lawyers' Law freed the legal profession from being state workers and allowed them some autonomy. I want to push back on that a little bit, because at the time in the 1990s we didn’t experience it as a liberation. It didn’t feel that free at the time. Are you overstating it a little bit?
Fu: In the past ten to fifteen years, China at the same time turned away from law but also turned towards law, it depends on the policy area. That I would call a dual state argument. You have very clear prerogative sphere where the party dominates. Probably law tends to be more silent in those areas. In the area of national security and anti-corruption, I think the government and party has significantly turned away from traditional rule-based governance. But then in other areas such as private law rights — think about the Chinese Civil Code, people say it’s a masterpiece of Chinese legislation — definitely China has turned towards law. So you can see this clear bifurcation. If you touch national security, it is basically lawless. But if you touch torts, you will say it is a wonderful legal system.
The second answer, yes. When the Lawyers' Law was passed, nobody was excited. In my view, it is only looking back 30 years, 40 years after that you start to see the significance. … Yes, [lawyers] have to renew their license. Yes, for some people, the practice certificate was not renewed. But for the vast majority of lawyers, it has become a routine; they never encounter difficulties. For them, it has become tremendously autonomous.
The issue for me is always not whether the Chinese legal profession is under too tight control. It is too tight and too loose. If you look at the lawyers’ regulation, it is not near what the American bar can do to their lawyers. … I tend to argue that they control in the areas where they shouldn’t control, but they don’t control in the areas where they should have more significant and meaningful control. Quality control and ethics, for example. Those are the issues where it’s really a wild West. In that sense, lawyers are very free. If you talk about politics, yes, it is tightly, tightly controlled.
Q: How far do you expect this [trend] will go? Are you suggesting that the private law firms will gradually be taken over in some sense, a bit like the tech companies that now have to give golden shares to state-owned enterprises?
Fu: Organizationally, probably law firms will mostly stay as private partnerships. But China has its first government law firm now. They set up a firm to do public interest services. It could be a pilot for a new scheme of government hands-on management. I saw the advertisement for lawyers for a government firm for the first time since 1996. But that probably is a long shot. I think the main concern is not the institutional identity. I think the main thing is in your work, when you go to court, when you frame the issues, the government would have a say. So labor disputes are just labor disputes. Forget about unionizing, forget about strikes. That is political. Let’s just be technical lawyers. If you are going to defend Falun Gong [members], don’t talk about freedom of religion. Just talk about criminal procedures, whether the police forgot to sign [a piece of paper].
Q: There is no strategic litigation then.
That is the beauty of legality. It individualizes grievances. Grievances are collective but the legal process individualizes it. If you are one of the persons who are discriminated against, you want to have a free lawyer and possibly you will win. But if you step back, there is a larger issue, there is always a structural issue. … In that sense, China is not turning away from legality or law, but there is a limit to what legality can achieve in social justice or re-distributive justice.
Q: At the local level, who polices the boundaries to make sure the young lawyers who are handling these cases don't go too far, that a labor dispute doesn’t become something broader? Is it the firms? Is it the agencies who provide the money for the contracting out? Is it the bureaus of justice? Is it public security?
Fu: I think there has been an evolution of responsibilities. If you go back fifteen years ago, it was predominantly public security. When Zhang Jun (张军) became minister of justice, there was a shift from public security to the Ministry of Justice. That is why they started disbarring lawyers, because that is in their power. Security can only detain you, they cannot disbar you. In the past ten years there have been a lot of cases of suspension. But now everyone wants to push the burden to someone else. Now they are pushing it to the Chinese Bar Association, the bar association is pushing it to the law firms, and the law firms are pushing it to the partners. Everybody is pushing it to the next person on the food chain to do more because it is a hard job. It is not easy to rein in those die-hard lawyers, for example.
Q: Is there any empirical data on how satisfied claimants are with the results of legal aid-facilitated litigation? Is there any way of evaluating the extent to which the determination of cases tracks Chinese law, as opposed to mediation between the parties, which is not necessarily constrained by legal rules?
Fu: If you read some of the contracts between the government and law firms, “You take care of that village. I'll give you 5,000 CNY per year and every dispute in that village is your responsibility.” Their requirement is basically: stop disputing, don’t go to the courts, settle by internal methods. That requires some field study. Anthropologists would have a significant role to play to see how that is done at the grassroots level. To what degree [mediations] are not voluntary or are not legal is an empirical question that can be studied.
The other question is about the results. The difficulty relates to the quality of legal aid cases. That also worries the government a lot. They are spending so much money and they are not quite sure of the quality of the service. But it is difficult to monitor legal aid because they are individual cases. … It is very difficult for outsiders to monitor the insiders. They have lots of forms, but they tick boxes.
Q: The Ministry of Justice early on set up legal aid centers in every province, all the way down to the township level. But these are usually staffed by non-lawyers who then farm out the cases to private lawyers in law firms. If you used lawyers who work at the legal aid centers, you could train them and supervise them. Why do they continue with this farmed-out model when it makes it harder to supervise?
Fu: If you look at different Chinese cities, there are different models. In some cities there are more staff lawyers. It would be an interesting research topic to look at why they differ. They do have staff lawyers but increasingly they are farming out because they want to bring more lawyers on board. Probably partly they are dissatisfied with what staff lawyers can do, given the huge demand and given what the government wants to do. As Xi Jinping said: to send equity and justice to the heart of every litigant. That requires lots of lawyers to participate in the process.
Q: Since COVID-19, the economy has continued to struggle. To what extent can local government still set aside money for the procurement of legal services?
Fu: It is a concern. I heard from lawyers that sometimes they are getting an IOU note now. Some governments used to pay a lot and now they can reduce the fee per case. …
But the platform has been built. In a way, it’s quite efficient and effective in the Chinese setting. As long as there's some narrative of rule-based governance, and socialist rule of law continues to be promoted and developed, I think it will continue. The Chinese system is well known for a sort of preventive justice, if I may put that way. It's not remedial justice. If you want to prevent disputes at the earliest possible stage, you need a monitor. You need deep-level engagement. You need to send down lawyers to the community. That's what they're doing. So in that sense it will continue, but also evolve.
The baseline of my argument is it will be a government-controlled system. You are serving the interest of those people [who receive legal aid] but under the macro political design. That is the core argument I want to make.