Qin (Sky) Ma is a Max Weber Fellow at the European University Institute, where she studies comparative criminal procedure, law and tech, the legal profession, and evidence law. Sky was a Hauser Postdoctoral Global Fellow at NYU School of Law after she received her S.J.D. from UCLA and Ph.D. in Law from Tsinghua University. Her paper, “Agents for and Against Change: The Dual Role of Chinese Defense Lawyers in Judicial Reform,” is forthcoming.
In this interview, she discusses her research into criminal defense lawyers and their role as agents of change in China, as well as more general observations about how lawyers enable or resist authoritarianism in China. To arrive at her conclusions, Ma employed a range of qualitative methods, including 81 in-depth interviews with lawyers and judges, analysis of high-profile cases, and participant observation in courtroom settings.
Could you describe the role of lawyers in enabling authoritarianism or democratic decline in China? How would you describe their resistance?
There is ongoing debate about whether China should be categorized as an authoritarian state, so I will refrain from making definitive judgments on this classification. Over the past four decades, China’s legal profession has evolved significantly, leading to the emergence of diverse and sometimes contradictory roles of lawyers. My research focuses on the role of Chinese criminal defense lawyers and their interaction with the judicial system. Their roles reflect a spectrum of actions shaped by structural constraints, individual motivations, and the legal political environment. I categorize three types of criminal defense lawyers: the reformists, the conservatives, and the passive majority.
Despite the risks—such as harassment, disbarment, or even detention—[reform-oriented] lawyers persist.
Qin (Sky) Ma, Max Weber Fellow, European University Institute
My research reveals that Chinese lawyers are neither unequivocal drivers of reform nor mere enforcers of the status quo. Instead, the role of criminal defense lawyers demonstrates a clear duality. On the one hand, conservative lawyers align themselves with the system, leveraging relationships and legal loopholes for personal or professional gain. Some of them are “judicial brokers.” They rely on informal relations with officials to get a good result in individual cases, but they’re not trying to improve the law because they operate under the table. On the other hand, reformist lawyers act as agents for change, striving for judicial reform and protecting defendants’ rights. They actively resist misbehaviors of judicial officials, prosecutors, and even police officers. The reformist lawyers have a lot of courage. They have made some progress in resisting democratic backsliding, protecting their clients and improving criminal justice within a certain scope. Between these poles, the vast majority of criminal defense lawyers adopt a passive stance, fulfilling only basic responsibilities or engaging in minimal effort. They neither try to build connections with officials to win a case nor fight against judicial authorities. While their compliance indirectly stabilizes the system, the impact of these lawyers, though significant in aggregate, is less deliberate and dynamic.
I find the reform-oriented lawyers most fascinating. While their goals may vary, they all focus on advancing the rule of law. Some are directly driven to promote systemic change, while others focus on ensuring that existing reforms are properly implemented. There are also lawyers who, through their fight for justice in individual cases, indirectly contribute to broader legal reform. For instance, they may focus on enforcing protective measures in the Criminal Procedure Law, such as the presumption of innocence, the right to counsel, and a fair trial, etc. Reform-oriented lawyers also engage in direct confrontation with the unlawful actions of state actors. In some cases, they may use the media to draw public attention and exert pressure on judicial authorities, pushing them to adhere to the law. They make judicial independence and accountability a central part of their advocacy. Despite the risks—such as harassment, disbarment, or even detention—these lawyers persist. They function as agents for change, utilizing the legal system and public discourse as tools to challenge a system that often resists transformation.
What’s the relationship between these groups? How do they interact?
Before conducting fieldwork, I assumed their different legal approaches would lead to poor relationships. However, closer observation revealed unexpected cooperation between them. Reformist lawyers occasionally collaborate with conservative lawyers, including well-connected local bar leaders. In high-stakes cases, reformists may take a bold stance, even clashing with judges during trial. These conservative lawyers intervene at critical moments, mediating tensions, negotiating compromises that allow judges to save face while still securing favorable rulings. This strategical cooperation—where reformists push boundaries and conservatives stabilize relationships—has proven effective in certain cases. But such cooperation is rare. More often, the two groups remain distant, with reformists openly criticizing conservative lawyers. Since conservative lawyers rely heavily on long-term relationships with judicial officials, they consistently seek to please judges and prosecutors while avoiding confrontation. Once this trust is broken, it becomes extremely difficult to rebuild.
These roles are fluid: under pressure, reformist lawyers may retreat into conservatism, while conservative lawyers rarely become reformists due to the often-irreversible loss of trust. The distinction between these roles is further blurred by their indirect and multifaceted strategies. Reformist lawyers constantly face the dilemma of whether to persist in their advocacy at the risk of persecution. A stark example of this occurred during the 709 Crackdown in July 2015, when human rights activists were systematically targeted. Scholars such as Hualing Fu and Eva Pils argue that the government saw these activists and human rights lawyers as a threat to political stability, fearing their activism could spark social unrest and challenge judicial authority. To suppress dissent, authorities used tactics such as imprisonment and disbarment, instilling fear within the legal community. In the aftermath, reformist lawyers became significantly less active, with some retreating into passivity out of self-preservation.
What do we need to know about the judiciary in China in terms of its relationship to state power, and how it enables or resists authoritarianism or democratic backsliding?
According to the framework in The Faces of Justice and State Authority by Mirjan Damaška, and as highlighted in He Xin’s recent book, The Judicial System of China, the judiciary in China plays a crucial role in policy implementation and governance. Thus, the judiciary is tasked not only with resolving disputes but also with advancing state-driven social goals and values. This dual function results in the judiciary having a complex role: on one hand, its inability to constrain state power can reinforce authoritarianism, while on the other, the need to consider public interest, economic development, social harmony, and government image leads the judiciary to place greater emphasis on public opinion and fairness.
Under pressure, reformist lawyers may retreat into conservatism, while conservative lawyers rarely become reformists due to the often-irreversible loss of trust.
Qin (Sky) Ma
Over the past two decades, judicial independence has significantly improved. In most cases, judges can independently give a ruling. They are not influenced by the executive branch or the party. But in certain sensitive cases, for instance, judges are less independent because they have to consider the social and political effects. Some scholars describe this phenomenon as the dual state—where civil and commercial cases function under rule-based legal principles, while politically sensitive cases are subject to state intervention. Many scholars write that in the civil and commercial field, lawyers are more professionalized and are more effective. The judiciary is also more independent. In criminal and other politically sensitive cases, it’s a different story. The challenge is that the boundaries between these spheres are ambiguous and fluid.
What strategies have lawyers—both those who work on politically sensitive cases like human rights and criminal defense but also business and corporate lawyers—developed to operate in China?
In the civil and corporate bar, the lawyers are highly professional and well-trained. The techniques and strategies don’t differ much compared with large American law firms. These lawyers generally operate within a legal framework that does not require direct engagement with the state in politically sensitive matters. Their focus is on legal and business disputes rather than on challenging the political system. This apolitical approach may reinforce the status quo by avoiding direct confrontation with state power. As such, they do not play a significant role in resisting democratic backsliding or authoritarianism.
In criminal law or administrative law, lawyers routinely engage in cases where state power is directly involved. They need to focus more on building particular strategies for the context in which they’re operating, such as a particular court, province, and type of case. They have to ask if there is political risk and what type of strategy works to protect them and their clients. For instance, I have documented at least seven types of strategies that reformist criminal defense lawyers use to operate in China.
First, they use social media to publicize their cases and gain public support, and in that way, indirectly influence the judiciary. As mentioned before, the judiciary cares about public opinion. If a case has drawn lots of attention, judges will act more cautiously. They will show respect for the law and won’t discard the lawyer’s rights.
The second strategy is collective action, in which lawyers join forces to represent multiple defendants in a case. For instance, in some criminal cases, there might be 20 defendants and up to 40 lawyers working together. In the 2012 Small River (Xiaohe) cases, a group of 120 lawyers teamed up to defend 57 defendants against the accusation of gangster crimes. The case was widely circulated on social media platforms, which attracted national attention. These lawyers collaborate on their strategies, sharing insights and posting updates on the disputes online. By doing so, they enhance and amplify their collective influence.
As lawyers have begun to fight for their rights, we have also started to see lawyers complaining that the bar association has not done enough to safeguard lawyers’ rights.
Qin (Sky) Ma
The third strategy focuses on activating procedural rights. The lawyers file complaints about judicial officials who disobey the law or breach certain procedural rights. The courts can take criminal procedural rights seriously, and if procedural violation is obvious, they will first argue for the proper due process and then push through for substantive justice in the case. Unlike traditional defense lawyers, who often abandon procedural challenges when rejected by judges, reformist lawyers persist, repeatedly raising objections, and if denied, may publicize the dispute online to draw public attention.
The next four types of strategies are more radical. Some reformist lawyers may engage in performance art, write joint petitions, or stage sit-in protests, and in extreme cases, resort to hunger strikes to draw attention to their cases. These actions aim to highlight the misconduct of judicial officials, thereby shifting the narrative. Additionally, lawyers may apply for permits to hold protests, with the application itself serving as a bold act of defiance.
How do lawyers use networks, lawyers’ associations, and other types of relationships to either enable or resist authoritarianism in China?
Let’s start with the bar association, which is multifaceted. Founded in 1986, the All-China Lawyers Association (ACLA) maintains a close relationship with the government. Since the restoration of China’s modern lawyer system in 1979, lawyers transitioned from being state employees to private practitioners, yet both the Ministry of Justice and the ACLA have maintained strong oversight roles over the profession. For a long time, the bar played a passive role, primarily issuing licenses, guiding lawyers, and requiring membership fees. As lawyers have begun to fight for their rights, we have also started to see lawyers complaining that the bar association has not done enough to safeguard lawyers’ rights. There’s tension there.
A notable shift occurred in the 2012 North Sea (Beihai) case, when the bar association publicly expressed support for criminal defense lawyers facing rights violations. Driven by reformist lawyers, the bar association began to pivot toward defending lawyers’ rights, especially between 2012 and 2014. This shift, however, was rare. Despite these changes, the bar remains closely tied to the government and is more likely to control lawyers than protect them. After 2015, the bar’s role in managing lawyers became even more restrictive.
Beyond formal associations like the bar association, informal networks also play a significant role, particularly among criminal defense lawyers. These networks are crucial in either enabling or resisting authoritarianism.
For reformist lawyers, informal connections among lawyers, law professors, and journalists facilitate their resistance to authoritarianism. Lawyers often build relationships through practice, and social media has further empowered rights lawyers to connect with colleagues across the country. These relationships enhance their capacity for collective action and increase their flexibility in responding to challenges.
These informal relationships are important for those enabling democratic backsliding or authoritarianism, especially in the group of lawyers I call middlemen or judicial brokers. Those lawyers are harder to study because they don’t want people to know about their practices, but there are at least three aspects of this group of lawyers that are interesting. The first is that some of them previously worked in the government, so they have personal relationships they maintain from people who work in the system. The interpersonal relationships come in when, for instance, some lawyers know the judge, and the judge will, within their discretion, provide better sentencing or treatment to the lawyers’ clients. Second, there are certain cases where the corruption is exposed, and judges are prosecuted and even sentenced into prison. The third situation is more subtle. The lawyer may not even mention the case directly but relies on the long-term, trusted relationship with the judge, who understands the exchange of benefits within that relationship and consequently provides a more favorable outcome, either within their discretion or by exceeding legal boundaries.
What can lawyers in other countries learn from the experiences of lawyers in China in both resisting and enabling government power?
The experiences of China’s defense lawyers, especially reform-oriented practitioners, provide invaluable insights. Despite operating in a highly restrictive environment, these lawyers have achieved some success in pushing for judicial reform, a phenomenon worthy of close study. Their experiences yield five key lessons for lawyers elsewhere combating democratic backsliding or resisting authoritarianism:
First, self-preservation is paramount. In environments where political control over the judiciary is strong, lawyers may need to adopt a depoliticized approach. This strategy allows lawyers to continue practicing law, albeit in a more constrained manner, without drawing undue political attention.
Second, enforce existing rights within the current legal framework. In China, there are legal protections for the rights of defendants and lawyers. However, judicial officials do not always adhere to these laws in practice. The key is to work within the system, focusing on what can be achieved within the boundaries of existing laws rather than demanding radical reforms that could provoke backlash.
Third, advocate for gradual, incremental reform rather than abrupt political changes. In China, and in many other countries with strong political control, sudden political shifts are often either risky or nearly impossible. Lawyers in these environments may need to prioritize incremental change, focusing on achievable steps that slowly improve the system rather than aiming for transformative change all at once. For instance, the reformist lawyers have leveraged social media to publicize courtroom proceedings, thereby indirectly contributing to the establishment of the three major judicial publicity systems, especially the China’s Court Trial Live Broadcast website.
In today’s digital age, social media platforms offer a powerful tool for raising awareness, mobilizing support, and applying pressure on the authorities.
Qin (Sky) Ma
Fourth, collaborate with peers and allies. Lawyers can build alliances with fellow legal professionals, reform advocates within the system, the media, and legal scholars. Many scholars aim to create a more democratic legal system, and cooperation with the media can help raise public awareness and build broader support for reforms.
Lastly, leverage public opinion and social media. In today’s digital age, social media platforms offer a powerful tool for raising awareness, mobilizing support, and applying pressure on the authorities. Lawyers in restrictive environments can use these platforms to shed light on injustices, rally public opinion, and influence the legal and political landscape.
These strategies, forged in one of the most challenging legal environments, can serve as valuable lessons for lawyers worldwide seeking to fight against democratic backsliding or authoritarianism. Yet their implementation demands careful contextualization to local legal realities
In sum, the implications of the dual roles of Chinese criminal defense lawyers are profound and multifaceted. Reformist lawyers’ contributions to procedural justice and legal awareness highlight the potential for positive change within the existing framework. However, the persistence of collusion-oriented practices underscores the systemic challenges that continue to hinder broader legal reform. These opposing forces reflect the contested and ambiguous nature of China’s legal evolution, where progress and regression coexist, shaping a complex and uneven pathway for the rule of law.
Qin (Sky) Ma is a Max Weber Fellow at the European University Institute.
