China's restrictions on barefoot lawyers could backfire

In April 2005, the blind activist Chen Guangcheng led a group of families to a courthouse in rural China. After suffering unlawful detentions and forced sterilisations under the government's one-child policy campaign, they planned to sue the township mayor. A judge initially refused to accept the case. But Chen and the villagers argued there was no legal basis to reject it and insisted it be accepted. The judge relented and the lawsuit proceeded.

Chen recounts this story in his new autobiography, The Barefoot Lawyer. He is the most famous member of a group of mostly self-taught individuals providing low-cost or free legal services, despite lacking any licence to do so. The book's release coincides with a heated debate about the appropriate role for barefoot lawyers in China's developing legal system, which was sparked by recent legislative amendments that will restrict their work.

During the past 20 years, Chinese law made it very easy to use barefoot lawyers and their role in the legal services market grew. A litigant could choose any other citizen to represent him so long as the court approved; such approval was routinely granted.

Proponents of barefoot lawyers note that they provide at least some form of legal representation to the many citizens who are unable to hire lawyers or obtain other help. For, while the number of Chinese lawyers has grown significantly, they are highly concentrated in urban areas. And even when rural residents can find lawyers, their fees may be prohibitively expensive.

Barefoot lawyers also play a significant role in administrative litigation - that is, when a citizen sues the government. In various localities, barefoot lawyers represent plaintiffs in up to a third of all such cases. These claims often contest government land seizures, fines and taxes, environmental pollution, or local corruption.

Lawyers are reluctant to take these "high risk, low reward" cases. Plaintiffs are often seeking to change the government's behaviour, not recover monetary damages. Lawyers also fear retaliation by the local government, such as revocation of their law licence. Legal aid is generally unavailable in sensitive cases because the local government controls that system. A barefoot lawyer is sometimes the only option.

But barefoot lawyers also have their critics. Some party officials warn that their rights protection activities threaten social stability. Judges have argued they inadequately represent parties due to their lack of legal expertise and employ disruptive tactics in court. Even worse, barefoot lawyers may simply cheat parties out of their money. Licensed lawyers, echoing these arguments, have also lobbied for limiting this perceived source of competition.