Sociological Analysis Of The Junction Between Legal Education And Legal Profession

After reform and opening up, China’s construction of rule of law has obtained great achievement. More and more law, lawyer and suitcases revealed the great achievement of our country in the construction of rule of law, and displayed the successive steps to the rule of law from the microscopic view. This is the good side of China’s construction of rule of law. And still further, judging from the evolution rule of the profession such as judges, prosecutors, lawyers, notaries, grass-roots law workers, judicial assistant officers and barefoot lawyer, this direction has still been continuing. Corresponding to the construction of rule of law in China, China’s legal education, which sent lawyers to China’s construction of rule of law also obtained great achievement. The time when we lack lawyers seriously has gone away.However, under the background of the thriving legal education which can be found evidences from the more and more law schools, more and more legal students and more and more masters of law, doctors of law, there are still some problems in the junction between legal education and legal profession. After the implement of China’s national judicial examination, which is designed for the community of lawyers, both the legal education and the legal service market showed some new problems. Argued from the connecting course of legal education and legal profession,these problems can be described as follows:From the side of law workers, the questions has two aspects: one is the dislocation of the regular lawyer such as judges, prosecutors, and can not realize normal staff alternation in the western areas of China, meanwhile, the gross-root society of the cities and rural areas lack law workers who provide legal service to the particular human group. The other problem is that we lack senior lawyer during the transition of urbanization and globalization course.From the side of legal education, the current standing problems is more and more legal students who are unable to find jobs and can not enter the legal profession.More and more law school revealed the thriving aspects of legal education in China,but meanwhile, during this course, some legal education agents which is not qualified because of different reason also participate in the legal education, this has become threatens of the quality of our legal education, which in turn unable to foster competent legal student who can easily come upon the stage and provide efficient legal service immediately after their education periods.However, speaking from the design of the connecting institution between legal education and legal profession, under the current situation, people usually focus on the national judicial examination institution. This institution is designed for the selection of judges, prosecutors, lawyers and notaries. At the beginning of the implement of this institution, it does have to be charged with some responsibilities for the west problems because its neglect of the unbalanced developing stages of China. Judging from the whole legal service market, the reason why national judicial examination is criticized lies in its unique selection status of lawyers, while the satisfaction of the legal market of China should not be completed all by the lawyers which is selected by the national judicial examination, but need more multilayer law workers.On one side, the legal service market has not been fully satisfied, and on the other, the legal graduates can not able to find jobs, this conflict has become one serious challenge both to China’s legal education and design of the connecting institution between legal education and legal profession. The practical meaning of this dissertation lies in this conflict on the macroscopic scale, and I am trying to seeking the timing and efficient connecting institution between China’s legal education and legal profession by analyzing concrete problems under this macro-conflict.The guiding theory of this dissertation is the social evolution theory, and the researching approach is normalization and un-normalization.The social evolution theory which is also called social Darwinism wasestablished by Oumar Kondé and Edmund Spenser. Simply speaking, Edmund Spenser’s social evolution theory argues that the society is getting better. However,the approach of the social evolution does not follow single-line, but one which is rationalistic. One society always step into peace, democracy from wildness, violence and autarchy judging from collective, macroscopic view, but in the concrete evolution step, the evolution course is always one gradually.Based on this social evolution theory, while one society is always in the evolution course, so should the connection institution between legal education and legal profession should build one that satisfy the need of times. However, one proper design of institution should never detach from the whole trends of the social development. That is to say, the efficient connection between legal education and legal profession is stepping into the normalization direction, which can be described from the four sub-characteristics of state recognition, which featured as formal,normalized, professional and procedural, into the higher and higher degree of social recognition. This trend can be found from the characteristics of the three different domains which include legal education, law workers and connecting institution. The normalization of legal education can be verified from the development of legal education per se, such as the number of law schools, law students, law teachers and the rate of law students and the law students. While the normalization of law workers can be verified from the admittance system, the number, and the structure of their educational background and the rate of their solved disputes from the professions such as judges, prosecutors, lawyers, notaries, gross-root judicature office, gross-root law workers and the barefoot lawyers. While the normalization of the connecting institution can be verified from the admittance system, which is becoming more and more formal, normalized, professional and procedural, of professions such as judges, prosecutors, lawyers and notaries, and can also be verified form the control system of the gross-root law workers from the state to the local.However, all these changes are deduced from the analysis of different periods,and this is only the trend, that is to say, under the trend, the evolution path is stillgradual one.This dissertation proceeds under the guiding ideology of the gradual social evolution theory, and go on deep arguments from the perspective of normalization and un-normalization. This perspective is enlightened by the definition of the article“Normalization and Un-Normalization On the Path of Construction of Rule of Law”by professor Zhu Jingwen, in this article, professor Zhu argues that “on the construction of rule of law, there is also the distinction between normalization and un-normalization. Their differences lie in the difference between the legal norms which are enacted by the state and the customs affirmed, protected in reality, lie in the ruling of the courts and the mediation of the neighborhood committee, lie in the university legal education and amateurish legal trainings, popularize elementary knowledge of law. The normalization of construction of rule of law has four distinct characteristics, the first is formal, which means it has the state recognition, the second is normalized, which means it has strict legal provisions, the third is procedural, which means the acquirement and exertion of substantial rights must include legal procedures such as legislative procedural, judicial procedural, judicial examination and national academic degree examination. The four is professional,which means it has staff who are specified in law practice, these staff has accepted professional legal education and they are ‘the regular army’ for construction of rule of law. Meanwhile the un-normalization during the course of rule of law usually lack the formal recognition and so the authority, their status often lack strict legal provisions, these provisions are often vague even if they exist, and often mixed the substantial provisions with procedural provisions, these professions usually do not need professional legal workers and so the professional legal education. Compared with un-normalization, the normalization of construction of rule of law certainly has the virtues of clear and definite norms, more scientific and more efficient, and so efficiently restricts the partial attitude to the executers of the law. However, as it is hard to grasp and professional, it often cause people feel mystic, and commons is not easy to get closing because the un-familiar with legal language; besides, the complicated procedural often make common person feel be controlled by others.Sometimes, because of the strict legal procedural and bureaucratism, one simple case can not be resoled in short time. Because of all the reasons above, although the normalized legal system does have many virtues, people would rather choose un-normalized way for problem-resolving. The biggest disadvantage of un-normalization is its low legal level, sometime there are not definite legal rule for problem resolving, ‘accord with the affection but not the law’ is one of the features of this way. However, this way is come from the masses, and is familiar with the ordinary people”. In fact, the arguments of the normalization by Professor Zhu is both from state scale and the social scale,and this also applied to the connection between legal education and legal profession.General speaking, during the course of staff supply for the legalization of China’s rule of law, the normalization and un-normalization also exist. The full occupy of the legal service market by the regular army of the legal profession is one aim and possible developing direction for our construction of rule of law. However this course can never be finished soon, so we should use and sometime encourage quasi-normalized, and un-normalized means timely and properly, and this is also why there are still quasi-normalized and un-normalized law workers in China now. Also,analyzing legal education by this perspective, we can see its reply to the calls of legal profession. And the multiple level of legal education, the popularizing legal knowledge is the supplementary means for formal legal education.Under the direction of normalization of connecting institution of China’s legal education, there are also problems. Just as the argument above, these problems also ask for attention to legal education, legal service market and the connecting institution.Specifically speaking, on the side of legal education, these problems can be described as un-normalized legal education agents and its unbalanced distributing,unbalanced distributing of law teachers and the job-choosing direction of the law students. While in the real legal need market, this problems is also revealed by the shortage of judicial staff in the western areas, the examples of this shortage in Yunnan, Ningxia, Xinjiang, Guangxi, Qinghai, Sichuan, Shanxi, and Gansu directlyreveal the west problem in the legal service market. Meanwhile, the restriction of the gross-root law worker and law student who do not want to do this job, and the real situation of the barefoot lawyer in the rural areas revealed the practical shortage problems in the gross-root legal service market. Contrary to the shortage of lawyer in the west, law students’ attitude for working in the west areas who study law school in law school of Xinjiang and Shanxi is positive. The west problem and the fross-root,rural areas problems ask for attention to the connecting institution. Meanwhile,during the concrete implementation of legal education, there are also reasons why law students do not have the practical abilities. If seen from the construction of legal profession community, we should also pay attention to the specific domain of legal education. Based on the results of analysis of questionnaire of law school in the north,east, west, south and the middle areas of China, there are still problems existing in the fostering system for disciplining and practical abilities.The main selection institution of judicial staff is the national judicial examination. The value of this institution should be affirmed, but need be normalized step by step. Meanwhile, because of the insufficient estimation of the un-equilibrium of our situation during its implement, so come up the shortage problem of formal legal profession. The biggest problem of the national judicial examination may be the insufficient care of the unbalanced legal need in different domain of China during its beginning, this phenomenal lies in its unique but not gradual way for dealing problems. In the old lawyers’ qualification examination system, the possibility for flowing between judges, prosecutors and lawyers is very low as this is one practical restrictive system. Although the national judicial examination takes measures such as classification of ABC for dealing with the problem, the practical results are not as good as enough. There are the problems in the national judicial examination which is as the connecting system. However, for the whole legal need, the national judicial examination should not be blamed so much. The different legal service during the transition period determined that the need of alternative dispute resolution mechanism for the legal market. Judging from the future effects of the connection between legal education and legal profession, “rule by norm” should be the first aim,the fully normalized lawyer should never a mission can accomplished immediately,.For these provide legal service to the special group, timely and properly encourage and allow should be the attitude of the state who wants to realize the state control over every aspects of the society.So is the legal education during the transition period, the outer problems of higher education’s popularizing course should be paid attention, and so its mission for efficient connection of it per se with legal profession. However, we should never fogot the direction, for the path of connection institution, the gradual, and specific model should be adopted. In nowadays when the highlight of the politico-legal departments absorb law student has passed away, the best way should we take may be the attention to the whole legal service market, and the smooth admittance for west law student entering politico-legal departments in the west. That is to say, the connecting institution should care the unbalanced situation of China’s reality.Attention should also be paid to the un-equilibrium between areas, and the different domains in the particular areas and social spaces.Under the impossible situation of realizing full normalization, the multilevel model should be adopted for connection between legal education and legal profession, and gradually realized the aim that social disputes be settled “in the shadow of the law” by way of “substitution of agents”. This way can first realized the reforming projects for the quasi-normalized and un-normalized law workers, and then adopting different state-control models to realize the effect of social control by“norms”, and finally accomplished the scientific connection mission which is the final aim. Meanwhile, under this aim, we should construct the legal education, legal profession and the connecting institution, and make it adapted with the need of our time. Specific speaking as follows:For legal education, the first thing is to transform education ideology, especially for the undergraduate students, we should put the fostering of legal elite during the course of education to practice and then back to education responding to the need of legal service. The scientific stratification of law schools, the perfection of admittance system, the normalization of teaching methods should all be normalized gradually torealized the whole aim of normalization. But, during this course, we should clearly recognize that, there are still some problems can not be settled only by normalized legal education. The existence of other forms of legal education may still exist in quite a long time, the normalization of legal education should take gradual steps to realize the mission.For the legal profession, the multiple level of legal need which China faced during the transition period cause the control measures of normalization should also take the multiple measures. In the specific time-space, allow or even encourage some law worker to practice law and realize their normalization by way of substitution of agent should be our choice.For the connecting institution, the real legal need and legal education should be taken into account. The multiple, balanced connecting system which is fit for the need of reality should be built. This thus asks for sufficient care for the specific areas,and the specific social space, and by different design of connecting system for different time, districts and profession can we realize the balanced distributing effects or the legal need.We do have reasons to believe that, by reforming the legal education, the legal profession and the connecting institution, the ideal of normalization of legal education, the legal profession and the connecting institution is not one aim that can never be realized!...