February 11, 2022
This wide-ranging, fascinating conversation was initially conducted on The American Bar Foundation’s Rule of Law: World Tour podcast on December 21, 2021. Professor Halliday has since expanded it to include more details of his study of China’s lawyers since 2005, how the work of Chinese lawyers is part of a bigger struggle for basic legal freedoms and how it resonates with lawyers’ roles in other parts of the world, historically and geographically. The original podcast can be found at https://anchor.fm/whoselawisitanyway. – The Editors
Host: Welcome back to Whose Law Is It Anyway, an American Bar Foundation podcast. What is the American Bar Foundation? Check us out at www.AmericanBarFoundation.org to learn more about our research on the intersection of law and society. In episode seven, we are covering the rule of law and exploring its relationship with legal professionals and the public in the United States, China and around the world.
So what is the rule of law? And how does it relate to legal freedoms? What role do judges and lawyers have in upholding and defending these legal freedoms? And how are countries held accountable when these freedoms are violated? To answer these questions and cover this extremely relevant topic, we’ll speak with ABF research professor Terence Halliday and ABF fellow Judge Benes Aldana. Professor Terence Halliday has spent decades as one of the world’s premier sociological experts specializing in the globalization of law, markets, politics, and freedoms.
Anyway, Professor Halliday has authored and edited scores of publications, including Criminal Defense in China and, most recently, Constitution Making and Transnational Legal Order. In addition to his work at the ABF, Terry serves as adjunct professor of sociology at Northwestern University, honorary professor at the Australian National University’s School of Regulation and Global Governance, and Fellow at the Australian National University’s College of Asia and the Pacific. Be sure to stay tuned after our conversation with Terry, where we’ll be speaking with Judge Benes Aldana. And now, let’s talk about the rule of law.
I am here with Terry Halliday. First, I would love, as we do with all of our guests, for you to briefly describe your background and how you came to be at the ABF and any other fun things you’d like to share.
Halliday: It’s great to be with you, Matthew. I am a New Zealander by birth. I grew up in New Zealand and did my bachelor’s and master’s degree there. And then I wanted to do a master’s degree and a doctorate in North America. So I went to the University of Toronto for a year, and I came to the University of Chicago to do my PhD in sociology. And while I was there, I actually started working as a research assistant at the American Bar Foundation. I was working on the Chicago Lawyers Project that Jack Heinz and Edward Laumannn initiated some time in the early 1970s.
I should say parenthetically that my memory of arrival in Chicago was a bit shocking. I was coming in with my wife in a Greyhound bus at dawn going through Gary, Indiana, passing the roaring fire and the smokestacks of the steel mills there, smelling the smog. I was afraid, as people had been telling me in Canada, that I was really entering an inferno.
But in fact, it worked out wonderfully well and Chicago has been my home for almost fifty years except for several years at the Australian National University The Chicago Lawyers Project was very exciting. I was a manager of the original survey of lawyers in Chicago, but I got very interested in the influence, in the power of professions, and lawyers in particular. My overarching question has been: how do lawyers make a difference in public policy or in creating law or in legal and political change? And so the Chicago Lawyers Project and the American Bar Foundation actually set my agenda for the next 45 years right there across the Midway from the Department of Sociology at the University of Chicago.
Host: Tell us a little bit about the work you’re currently doing and why we’re speaking with you today.
Halliday: I’m interested in lawyers’ politics. How do lawyers make a difference within their own countries and across the world? And I’m particularly interested in the way in which lawyers act collectively, the way in which they can join together to make a difference.
So I’ve actually followed that question in two different directions. My early research was in the United States on the influence of lawyers and bar associations. And then that widened out into the study of economic law and human rights law and that widened out yet again to looking not only at the influence of lawyers but other legal occupations, such as judges or prosecutors or military lawyers or legal academics or civil servants who act as lawyers. We call this the legal complex.
And so my work has had really two main tracks. One track has been on globalization of law and markets. And the other track has been on globalization of law and human rights and politics.
Host: Fascinating. And one of the terms that came up, as we were discussing questions for you, was the idea of rule of law. And I’m curious, in your opinion, why does that matter in international global law and politics?
Halliday: It certainly matters because it is an expression that is extremely widely used. It has great common currency. Lawyers of course use it and human rights groups use it and politicians use it. So the term itself is very familiar to very many people. The complication is that it also is a very contested concept, and some people define it very narrowly in terms of sort of procedural rights that persons could have in courts, for example.
Other people define it very broadly so that it would encompass social rights and economic rights and political rights. It’s not a term or it’s not a concept with which I work so much given my interest in the influence of lawyers. My colleagues and I focused on a wider concept that we thought was a better way of thinking about what it was that brought lawyers together to exercise influence on legal systems and political society.
So our question was, under what conditions can lawyers act collectively when lawyers themselves may be divided by political party or by religious conviction or by ideologies? Are there any issues on which they can all come together? And we discovered in our research that they could all come together, if they were ever going to come together, around the concept we labeled “political liberalism.” And, for my collaborators and me, political liberalism has three components. One component is basic legal freedoms, which is very close to a narrow version of rule of law. Another component is the creation of a civil society, especially where bar associations, voluntary bar associations, can be free to exist. And the third aspect of political liberalism is what we call a moderate state, which commonly is expressed as the independence of judiciaries, but actually refers more broadly to a division of state powers. So the rule of law matters greatly in international global law and politics.
For my purposes, I think it’s better to situate it inside this wider concept of political liberalism. Because now we have a huge amount of evidence that lawyers—since the 1600s in Europe and for the last several centuries across the entire world—if they’re going to mobilize collectively, these are the kinds of things that they will mobilize around—these three elements of political liberalism.
Host: One of your recent research projects studies political liberalism in China and the role that lawyers and judges there play in upholding human rights. So how did you come to be interested in China specifically?
Halliday: That’s a great question, because, in fact, I had no particular focus on China until one day I was sitting at my office at the American Bar Foundation and I got a phone call from the World Bank. And the person said to me, look, China’s State Council is working on a five-year plan to restructure the economic system and in the five-year plan, they wanted professions to be less controlled by the state and to be more self-regulating. And since you, Terry Halliday, are a specialist in professions, could you tell us the various models of regulating professions in other parts of the world and come to a meeting where we’re going to discuss what features of other countries we could adopt in China?
So I said, yes, and I had a terrific experience. I went with five or six other foreign specialists to Kunming in the south of China. When I got there, I discovered that a Vice-Minister had brought together all of the legislative directors of all of China’s main economic ministries. So the people who actually were writing economic law for all of China were there. And so we were quarantined effectively for a week in this lovely hotel with some senior officials, including the staff director of all financial legislation of the National People’s Congress.
So that was my first introduction to China. And I fell in love with China right then, partly because these conversations were extremely stimulating and partly because I enjoyed the conference participants and the food and Kunming so much. I had been working at that stage for about twenty years, or at least ten years, on corporate bankruptcy law — America’s corporate bankruptcy law legislation in 1976, and then the United Kingdom’s bankruptcy law in the 1980s, and then bankruptcy law being created for the whole world by the United Nations in the early 2000s. I have several books on these reforms.
So since I was already getting known by some of these people in the economic ministries, I was invited by the OECD to advise in a series of meetings on how China could create a bankruptcy law that would help businesses that got into financial difficulty in China. So that was sort of my next phase of involvement.
But my current research comes from another line of work. Since the early 1990s, I had been working with a French sociologist and intellectual, Lucien Karpik, and he also had a great interest in the power and the influence of lawyers. He had written an extraordinary book on the power of lawyers in France from the 1200s to the 1900s. Over twenty years, we brought together academic specialists in about thirty countries across all continents of the world to write studies of the politics of lawyers in different times in different places—Brazil during the military dictatorship, or Singapore and Lee Kuan Yew, or India during the period of emergency, or Egypt during the Mubarak regime.
And this was absolutely fascinating because we could see how lawyers could mobilize, what impact they could have. But what I had never done myself is first-hand empirical research on the politics of lawyers outside the US. And so I said to myself: Well, here I am in China. I’ve met all of these extremely interesting people and I’ve got some strong local connections. Why don’t I develop a research project on the ways in which Chinese criminal defense lawyers or human rights lawyers fight for basic legal freedoms, fight for political liberalism in China. So that’s what I’ve been doing since about 2005 to the present.
Host: Can you sketch out some features of that research project?
Halliday: Sure. I was very fortunate to recruit a superb doctoral student in sociology at the University of Chicago as a research assistant. Sida Liu, a graduate of China’s prestigious Peking University in Beijing, quickly became my collaborator and we began a fifteen year series of studies and writings up to the present.
We got a major grant from the National Science Foundation in the US and embarked on a wide-ranging study of criminal defense lawyers and the reform of criminal procedure law in China. Given the great sensitivity about human rights issues we decided that studying criminal defense work and criminal procedure law was a safer way to conduct research. It turned out to be a good choice because we got wonderful cooperation from lawyers and law professors and officials across China.
We studied the criminal defense bar for 10 years—from 2005 to 2015. We interviewed hundreds of lawyers in several provinces, analyzed thousands of news articles, conducted a survey in small towns and more remote counties where we didn’t have direct connections. We asked what sorts of cases had they worked on recently? What were the difficulties and dangers they faced in their work. How did they adapt to challenges they faced? What did they think about changes in the Criminal Procedure Law? What were their legal and political values?
Host: Were you surprised by any of your research findings?
Halliday: Yes, we were. This is one of the great pluses of doing sociological research. You never know what will crop up! We discovered that law on the books seemed to be improving but for every two steps forward there might be two or three steps back. Law in practice often didn’t line up with law on the books.
We found that many of the leading defense and rights lawyers had suffered a great deal so we sought to understand how they maintained their courage when they suffered attacks, arrests, disappearances, even torture, in addition to being harassed or not permitted to practice or losing their practice licenses. These lawyers pointed to the importance of solidarity amongst themselves, how they got together for meals or joined together in cases or kept in touch through social media communities they created. Several of the most prominent lawyers tried to build strong ties with lawyers and politicians overseas. For instance, several of them met with President George W. Bush in the White House. Others spoke to the European Parliament. Many were featured in overseas lawyers’ human rights organizations and bar associations, such as the City Bar of New York.
One quite unexpected finding that fascinated me was the discovery that at one stage maybe 40% of China’s leading human rights lawyers were Protestant Christians. A law professor in Hong Kong told me about this and when I started to explore it I discovered that one of my translators had a boyfriend who was a leading younger Christian rights lawyer, so he introduced me to many others. This became a kind of mini-research project in itself. I got to know these lawyers over several years, frequently meeting them for meals or coffee or tea. They had a strong view that the Bible’s teachings on justice and equality and freedom and fairness spurred them to fight for people harmed by China’s unjust criminal justice system.
Sida Liu and I wrote about all these research findings in our book, Criminal Justice in China: The Politics of Lawyers at Work.
Host: What about the big picture? Did your China research show any similarities to all of the other country studies you and your colleagues had been doing?
Halliday: That’s a great question. Yes, we discovered that maybe 15-20% of the criminal lawyers aligned remarkably closely with the values of lawyers struggling for political liberalism in other times and places. They saw their daily work as part of a bigger struggle, a fight for basic legal freedoms, for civil society, for a moderate state in China. In a way they were fighting the same fight that French lawyers had fought before the French Revolution or Brazilian lawyers fought for during the military dictatorship or Kenyan lawyers were fighting for against their authoritarian government.
We even found that some of the techniques used by China’s lawyers in this struggles were similar to those in places they had never heard about, e.g., demonstrations on the steps of courts or using media to put public pressure on judges for a fair trial. Malaysian lawyers did this. So did Pakistani lawyers.
So we discovered that China struggles had an underlying commonality with those in Latin America, Africa, Europe in earlier centuries, in India and Singapore, and in other places in the 21st century, such as Poland and Myanmar and Hong Kong.
Host: And in about 2015, your project was forced to shift because China’s government cracked down on activist lawyers. So how did that impact your ability to continue the research to this present day?
Halliday: You’re describing what people call the 709 Crackdown—the crackdown that happened on the 9th of July, 2015. This was a tremendous shock not only to people inside China, but to people outside China, because hundreds of lawyers across most of China’s provinces were detained and many of them were disappeared for days and for weeks and some even for months.
So suddenly people that I’d known for years disappeared. And in fact, what made it even more poignant and shocking for me is that I had been meeting with several of these people just days earlier in Beijing. To suddenly wake up one morning and find that a distinguished woman lawyer, Wang Yu, had been seized by twenty black masked security police in the middle of the night and disappeared was terribly sobering.
After the 709 Crackdown I felt I couldn’t continue my research inside China, at least on the mainland, because it was potentially dangerous for these people who had been detained. After all, they’ve been associated with me, a foreigner, potentially a suspicious person, for a number of years. And maybe it was dangerous for me, too, because the government was behaving a bit unpredictably. It hadn’t seized any Americans, but it was acting in ways that looked as if it might. And it eventually did. So, after discussions with my collaborator, Sida Liu, now a professor at the University of Toronto—we decided to shift our research from inside China to outside China. In other words, we decided to see how does the rest of the world influence what’s going on with basic legal freedoms, with human rights, with political liberalism, inside China.
We began a research project on international human rights organizations, on the United Nations Human Rights Council, on religious organizations, on the role of states like the United States or the United Kingdom or the European Union, and in the kinds of ways they mobilized. How did they act in order to get China to be compliant with international human rights standards, especially those related to legal practice and lawyers? What kinds of pressures do they bring to bear? Do they write public letters to Xi Jinping? Do they produce critical reports on torture and treatment of the Muslims and the Uyghurs in northwest China? That’s a project that’s continued to the present, it’s a project that I can do without being in China. But it also is a great way of seeing how the world has reacted to the increasing brutality and repression of the Chinese Communist Party, which of course controls China’s government.
Host: Now, you mentioned basic legal freedoms. Can you give us a few examples of what those are and why they matter so much?
Halliday: We think of basic legal freedoms involving civil rights—kinds of core civil rights that lawyers are used to thinking about, like freedom from arbitrary arrest and execution, or freedom from torture, or freedom from indefinite custody, or the ability to be represented by a lawyer of your own choice, or having procedural rights at trial, like seeing the evidence being used against you, or being able to test that evidence or being able to bring witnesses to support your case. So basic legal freedoms includes those core civil rights.
They also include core political rights. From the beginning, lawyers have been arguing for some freedom of speech or freedom of association or freedom of movement. In the early days, they did not argue for freedom to vote, because many lawyers were opposed to extending the suffrage to all people, but certainly these core political rights have been essential for centuries.
And then there are property rights — do you have the ability to own property and to hold onto it without it being arbitrarily taken from you? And all of these sets of issues have been enormously controversial in China, because all of these rights have been abused in various ways. Tens, possibly, hundreds of millions of Chinese have experienced unfair land takings which has led to deep grievances against the Party-state and involved many rights and defense lawyers.
So you ask why basic legal freedoms matter. They matter because they’re absolutely fundamental for the protection of vulnerable individuals from arbitrary rulers or from powerful states. After all, if the king doesn’t like you, who can stand up to the king? Who can tell a Stalin or a Mao Zedong or a Xi Jinping that they can’t throw their enemies into prison on a whim or they can’t send them off to a concentration camp? Or they can’t execute them and throw their bodies in a ditch? So if we don’t have these basic legal freedoms, then we don’t have many other freedoms. And one thing that I would just emphasize again, and very importantly, almost all lawyers can agree on these basic legal freedoms when they don’t agree on anything else. For instance, in the United States during the 1950s, during the Communist Red Scare and the McCarthy hearings in Congress, conservative and liberal lawyers across the country were split. Some people believed that you should be finding communists under the bed and other people believed this was a witch hunt.
But what they could agree on is that it’s really shameful, it’s really wrong to accuse people without revealing the evidence that you’ve got or to destroy people in public in a congressional hearing without legal representation, or not to give people a right of reply. Lawyers across the political spectrum could say there are certain kinds of fundamentals that are crucial to a legal system like ours. And on those things, we can stand together. And so it’s that common ground that my research has been looking for across the world and also in China.
Host: Yeah. And so with the light that your work has sort of shone on China, what lessons does it offer for us in the U.S. — you know, specifically me? Truly, what lessons does it offer for us in the U.S. and other parts of the world? And how concerned should we be about reported attacks on the rule of law or political liberalism in the U.S.?
Halliday: One of the experiences of working in China and seeing the dreadful repression and brutality that the regime and security apparatus uses against its own people — it leads you to realize that where democracy or the rule of law has been implemented is a kind of a miracle.
Here you have a single law in a rule of law society or a single judge that can stop the most powerful ruler from acting. The ruler can be held accountable. The massive power of the state can be stopped from hurting a poor or a weak individual. And we found that it’s taken centuries, it’s very difficult to develop this institutional order. Unfortunately we have also seen in recent years that it’s relatively easy to undermine. The United States is no exception and that should be a warning to the world.
I think one of the lessons that we should be learning in countries that purport to have democracy of the rule of law is that every one of these countries must be constantly ready to fight for it, to renew it. Otherwise, it will shrivel and die. We have a very precious thing in the United States. And if there’s one thing my research on China teaches me, it’s that in the U.S. we should be very, very careful and very scrupulous in defending this precious thing that we’ve built up over a long period of time. Yes, it is inadequate to this day and needs constant improvement. There have been terrible reversals and faults along the way, even civil war. Yet despite its deep flaws, it is still something that at this moment stops complete arbitrary power being exercised by rulers against anybody they don’t like.
Host: Yeah, these thoughts have been keeping me up a little bit at night lately, I must admit. These things, you know, when you grow up and you think, oh hey, the light bulb just turns on, I don’t have to think about why that happens. And if you expand that into the larger social things that are going on, isn’t it a little scary, Terry?
Halliday: I think it’s particularly shocking in countries like the United States or the United Kingdom that have had democracies and rule of law of some sort for centuries and then suddenly you see these reversals.
I was part of a conference a couple of weeks ago in Poland — remotely, I should say — and that conference was essentially about the reversal of the rule of law in central and eastern Europe, and countries that have tried to develop a rule of law system since 1989, when the Soviets withdrew, and the countries became some sort of democracy. But in countries like Poland and Hungary, rule of law is really under heavy threat. And that’s a problem for those countries. They have only had this version of the rule of law for the last twenty or thirty years. But if we in the United States, after a couple of hundred years, can still find our basic legal institutions under such assault, it demonstrates that we need to be extraordinarily vigilant and not simply take for granted what we have.
Host: Yeah, and I think in the U.S. we often think about activism in order to protect these things or other things, you know, needs to take place inside our country to make change. But your work seems to argue that international coalitions are needed, at least in some cases. When do you think that is needed and why?
Halliday: The current United Nations event in Glasgow on climate change is a good illustration. There are some challenges that cannot be met unless countries across regions and across the world will come together. These issues require agreement on international standards and then adhering to those international standards.
Coming out of the incredible tragedy of World War II, we saw a new kind of an international order was created with the United Nations and the Universal Declaration of Human Rights. That was solidified by a number of international alliances that expanded over the last seventy years. There’s real moral force when a number of countries sharing the same ideals can come together. They can share information, they can inspire each other, they can even compete in a friendly sort of a way to do the right thing. But the fact of the international coalition is a form of buttressing whatever a country has within itself. So if a country within itself runs into difficulty, like the United States, having moral suasion applied to it by its allies — by Canada or by the United Kingdom or by France or Germany, Australia, or New Zealand — that can be powerful. And each country can then be exercising some kind of influence on the other. So international coalitions are not only crucial for military power, they are also crucial for ethical and moral and legal standards, like the rule of law or political liberalism.
Host: It’s sort of serendipitous that we’re having this talk, because it has been in my mind a lot lately about, you know like, why does our country and other countries who think alike sort of have an influence to determine what may be better for other countries that don’t necessarily agree?
Halliday: Yes, well that reaches to some really fundamental questions about whether there are universal moral or ethical standards. We don’t believe that people should be tortured, although even the US tortured people during the Iraq War. But does that mean we should just shrug our shoulders if other countries torture people? I’m not shrugging my shoulders when China’s Communist Party and its security apparatus tortures my friends. So I think there are certain kinds of legal universals that are institutionalized in the UN that we have to adhere to. But if you say: Can Iraqi society be made into a clone of American society? Of course not, that’s a complete folly. There needs to be some kind of adaptation to the circumstances of Iraq, to the great religious divide that they have in Iraq and so on.
Host: Thank you for going on that tangent with me. You’ve also studied the ways global institutions like the United Nations create law for world trade and shape national markets. How have these findings contributed to the understanding of the international rule of law?
Halliday: Global forums like the United Nations have multiple functions. It’s true, they write new laws for the world. I’ve been studying corporate bankruptcy rules for the world or rules for the world on carrying goods across oceans. International forums provide places that bring together states and non-governmental organizations. They offer a place where peripheral or marginal or poor countries can have a voice. And they also heighten the potential importance of legal orders or of legal rules — rules to govern markets, or to govern migration, or to provide protections for vulnerable people, like children or women or minorities or religious believers.
My research with Susan Block-Lieb on global lawmaking for markets worldwide showed, for instance, that the United Nations does throw open its arenas to the entire world. We also found, however, that the actual legal rules that are developed by the UN to govern markets and bankruptcy law or secure transactions law or maritime law — these laws are actually written by a tiny number of people. Twelve people, twenty people, fifty people are the key people, the insiders, an inner circle writes these laws.
Who are these people? Well, they’re overwhelmingly from rich countries in the Global North, from the thirty or forty rich countries of the OECD. So our book on global lawmaking makes recommendations that essentially would reinforce values of the rule of law for the world as a whole in order to make global lawmaking more equitable.
This means that international law needs to be good for the Global South — the Majority World, as some people call it — as well as for the Global North. We make recommendations that would harness the creativity of countries that are sometimes called weak or peripheral countries. We make recommendations of how you could improve the quality of consultations and rulemaking and how you could actually add legitimacy to the UN and to UN lawmakers so that rules developed at the global level will be adapted and adopted locally.
All of these are ways of essentially underwriting the international rule of law, but if that’s to be underwritten, it has to be done in a fair and a just way, and it’s not being done as fairly and as justly now as it should be. So our research is pointing not only to that lack of fairness or relative injustice, but trying to suggest ways in which it could be made more just and more fair.
Host: So now for a big question we ask all of our researchers: what does the future look like based on what you’ve learned?
Halliday: The future is always veiled and I certainly don’t believe in straight line theories of history, which are quite common in certain domains. A straight line theory of history says in effect that in whatever direction we’re heading in, we’re going to continue to head in that direction. China is going to become bigger and bigger and more and more powerful, and eventually dominate the world. There are going to be setbacks in the future. We’ve seen setbacks recently to American democracy. There are going to be collapses. We saw that with the Soviet Union and the Soviet Bloc in 1989. There could be an internal implosion in China. The Communist Party has harmed hundreds of millions of people over the last seventy years of its rule and it seems to be harming more and more of them by the day.
So we simply don’t know where things are going. But I think that my research on lawyers and the legal complex shows that there are always going to be some groups who fight for freedoms, for basic legal freedoms, for an open civil society, for a state that is moderated by and constrained by law. And lawyers frequently are going to be in the vanguard of those people fighting for freedoms. I think that’s almost a historical constant. Doesn’t always happen, but it happens often enough that it’s a very strong hypothesis about what you can expect in the future.
Host: And you’ve shared your work widely with both the public and policy makers and have had real impact. So what, if anything, can our listeners do individually to help support protection of basic legal freedoms in China or beyond anywhere else in the world?
Halliday: The most important step to take is to be informed. And I can talk more about that, if you’d like.
Host: Yes, please.
Halliday: I think that people need to learn better about the situation in other parts of the world, especially the situation that relates to lawyers and the law. Because after all, these are the people that we’re particularly concerned about in our research.
Let me come back, if you like, a little bit later to say how you might do that. The one thing that I’d like to see is that the individual concerns that particular lawyers in the United States might have get translated into collective action.
For example, I’d want to see bar associations, human rights committees or their international law committees get engaged on China like the City Bar of New York does. Or I would like to see bar associations across America support the annual lawyers’ human rights events on China, which is publicized by China Change, a nonprofit based in Washington. It has a wonderful website, and it tends to focus on lawyers.
I’d like to see a U.S.-wide network of bar associations that are ready to act on particular human rights cases, signing petitions or writing letters to China’s leaders, writing up ads in local media outlets, putting pressure on China’s Communist Party-controlled bar associations. There are many forms of collective action that could be taken by the U.S. bar. Some bar associations are already doing that. For instance, the American Bar Association gave disappeared lawyer, Wang Yu, its first international human rights prize and this drew international attention to her and all the persecuted lawyers of the 709 Crackdown and since then. I’d love to see that sort of action spread across many bar associations in the US.
Host: This one is not on our list so if you don’t want to answer, you do not have to. [laughs] I always like to do that, but do you have advice for how people can stay informed and take action without it being overwhelming for them? The sort of, you know, dread of the awful things happening in the world and feeling like they’re one person and what difference can they really make?
Halliday: I think that it’s very helpful to have regular news sources that, on the one hand, don’t overwhelm, but on the other hand, do as you say — namely, just to keep people attuned to what’s happening in other places. For example, to support lawyers in China there are some practical things that any of us could do that wouldn’t be overwhelming, but I think would lift our consciousness about our fellow lawyers in China. My Twitter account is devoted only to human rights and only to lawyers and basic legal freedoms in China. And frequently I share my tweets with the ABA fellows or with the American Bar Association news. But if you follow me @hallidayterry on Twitter, that’s one way of keeping up.
Another way is signing up for notices for congressional hearings by the Congressional Executive Committee on China. This is an extraordinary organization where both Congress and the executive branch of US government work together on China. And they have hearings every few weeks on issues in China. And even just receiving an email of upcoming hearings, that one email announcing what they’re dealing with, is a small way of tweaking or of sensitizing us to big issues that are on the table right at this moment.
I’ve already mentioned China Change, which has an emailing list where one can sign up. It focuses on lawyers and I find it a very impressive organization. There’s an international organization in the Netherlands called Lawyers for Lawyers that focuses on lawyers worldwide, but also on China, and they too have a mailing list. In the US one can follow Human Rights in China (HRIC) or China Human Rights Defenders (CHRD) on their websites or on Twitter. Human Rights Watch, with which I’m associated, has done terrific work, too, covering China, alongside Amnesty International.
Some organizations focus on particular religious groups. For example, there’s a group in the United Kingdom called Christian Solidarity Worldwide that’s been quite vocal on China, because quite a number of China’s rights lawyers are Christians. ChinaAid in the US has a similar profile on rule of law with a particular concern with religious freedom and has been active in some notable cases of persecuted rights lawyers in China
Host: Well thank you, we’ve reached the end of our questions. And so now, I like to just ask: is there anything I should have asked? Is there anything else you’d like to share, add, as we begin to close our time together?
Halliday: There are some changes that could be made, some initiatives that could be taken by the organized bar in the United States that might make a big difference. Bar associations in the U.S. could use their prestige and their authority more than they have been, I think, to hold China accountable to global standards, to UN treaties, to UN human rights standards. They could be pressing China to protect lawyers, telling China to stop doing harm to lawyers, taking away their licenses, silencing them, detaining and torturing them, even indirectly executing them. I think bar associations in the U.S. could be pushing China to become more like a rule of law society, to uphold basic legal freedoms, to open up civil society so you can really have independent bar associations — which China presently doesn’t have — or to free the judiciary from control by the Chinese Communist Party.
So my takeaway message would be, on the one hand, be informed about what’s happening with lawyers on human rights worldwide, but particularly on China. And then take that increased information and mobilize through bar associations in order to have what I think could be a tangible impact on public opinion and possibly even on China’s leaders about the ways in which they treat lawyers and the legal professions inside China.
Host: You’re just bringing up so much for me in a way that hasn’t happened before, so congrats to you. But has your research given you any insights as to why China operates the way it does — why there’s such a hesitancy towards opening those things up and why that crackdown happened the way it did? And again, I’m so uneducated about these matters, but, sort of, why is China so strict and why are they denying these sort of basic legal freedoms in this way?
Halliday: Well, it is a vast country, 1.3 or 1.4 billion people, nobody really knows because China almost always fudges its numbers, with lots of different nationalities and a fair amount of diversity. And, insofar as the Chinese Communist Party was permeated with Marxist ideology, its way of ordering its own people was to do it coercively — ironically in the name of the people — but in ways that ultimately saw the deaths of somewhere between what scholars tell us are thirty to fifty million people inside China since 1949.
I’m interested in your question, particularly as it relates to lawyers. I wrote an op-ed in the Wall Street Journal entitled “Why China Fears Lawyers.” And one of the reasons that China fears lawyers is that lawyers have another standard by which to evaluate the country — not simply the ideology of the Chinese Communist Party, but a rule of law standard, a standard of political liberalism that’s worldwide and that’s centuries deep.
And so they can bring a critical view of what’s happening in China in a way that the leaders of China’s Communist Party don’t want. It threatens their control. The leaders of China are afraid of their own people. They won’t allow them to have a vote, for example. They’re afraid of women. They’re afraid of certain religious groups — Muslims and Tibetan Buddhists and even Christians. They’re afraid of labor unions, and so on and so on. The list goes on and on. And the only way that their government seems to believe it can deal with the problem is through coercion in one form or other, either soft coercion or hard coercion. And it’s using a combination of both.
Those of us outside China who are committed to rule of law and political liberalism, to civil society and freedoms of association and speech and religion, need to stand shoulder to shoulder with the hundreds of millions inside China who long for rule of law, who want the Chinese Communist Party gone, who want to join other nations where people can vote their leaders in and out of power and know the weak and most vulnerable are protected by law, constitutionalism and democratic ideals.
Host: Thank you to Terry Halliday for sharing his experience with this important issue.
Also by Terence Halliday on China Change:
HOPE: A MESSAGE TO CHINA’S DEFENSE LAWYERS, Address at the 5th China Human Rights Lawyers Day on July 9, 2021.
Five years after the ‘709’ crackdown on China’s human rights lawyers, their voices must be heard, Terence C. Halliday and Eva Pils, July 8, 2020.
709 Crackdown Three Years on: Keynote Address on the Second China Human Rights Lawyers’ Day, July 8, 2018, New York City, Terence Halliday, July 9, 2018.
Gregory Shaffer, Tom Ginsburg and Terence Halliday (Eds). 2019. Constitution-Making And Transnational Legal Order, Cambridge University Press
Susan Block-Lieb and Terence Halliday. 2017. Global Lawmakers: International Organizations In The Crafting Of World Markets. Cambridge University Press.
Sida Liu and Terence C. Halliday. 2016. Criminal Defense in China: The Politics of Lawyers at Work. Cambridge University Press.
Terence C. Halliday and Gregory Shaffer (eds). 2015. Transnational Legal Orders. Cambridge University Press.
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