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Rachel E. Stern, Political Reliability and the Chinese Bar Exam, 43 J. L. & Soc. 506 (2016).

The bar exam has rarely been of great interest to legal scholars. Although its format and pass rate vary substantially across countries and jurisdictions, it is often dismissed as merely a qualifying exam aimed at “controlling the production of producers,” as Richard L. Abel argues in his seminal book American Lawyers. Even in Japan, where the bar exam pass rate used to be as low as 2-3%, most discussions contemplating reform have focused on whether or not it is desirable to increase the number of lawyers. Although many law professors have taken the exam—and some, famously, have flunked it—there seems to be little scholarly interest in understanding its content.

This is why Rachel E. Stern’s new study on how China politicized its bar exam is both refreshing and insightful. In the process of researching Chinese law, Stern keenly observed a phenomenon that most other researchers took for granted. In particular, over the past decade, a number of “political questions” have been inserted into the National Judicial Examination—China’s unified bar exam for judges, procurators, and lawyers. These questions are not aimed at testing the test-takers’ legal knowledge or technical expertise but, rather, their understanding of the “socialist rule of law and the correct role of the Chinese Communist Party (CCP)” (P. 507), which are only remotely related to legal issues or the structure of the legal system. Although the political questions account for merely a small percentage of all exam questions, given the exam’s relatively low pass rate (only 11% in 2013), most test-takers still take them seriously.

The answers to many of the political questions appear enigmatic to non-Chinese readers, yet for the would-be Chinese legal professionals who prepared meticulously for the exam, finding the correct answers is not a difficult task. As Stern argues, this involves a process called “preference falsification” by political scientists, that is, an act of “navigating the gap between private beliefs and public expression.” (Pp. 525-26.) For citizens living in post-socialist or other authoritarian regimes, this is “an instinctive strategy for survival” (P. 526) acquired through years of living (and test-taking) experience. Through the bar exam and many other state-controlled exams, Chinese young adults are trained “in the art of orthopraxy,” (P. 527) and they can easily display public loyalty to the Party-state orally and in writing without true inner belief in its legitimacy. As one of Stern’s interviewees put it, “I have my personal opinion, but for the test I will do whatever the correct answer is.” (P. 526.)

Then comes the obvious question: Why put such political questions in a professional qualifying exam if few test-takers truly believe in their answers? Here Stern’s usually clear and convincing analysis gets a little ambiguous. She gives four possible explanations (i.e., to weed, warn, persuade, or train) but then rejects all of them. (Pp. 523-24.) Indeed, given the small percentage of political questions and the fact that most Chinese adults have mastered the “art of orthopraxy” in primary and secondary education long before they stand for the bar, the purpose of inserting this political element into the bar exam seems puzzling. Stern argues that the bar exam is not a warning, persuading or training tool, but “a site of political learning where test-takers refine and practice the implicit rules governing interactions with the state.” (P. 525.)

This is certainly true for the bar exam, but it is also true for many other exams. As Stern points out, similar questions widely exist in the college entrance exam, the civil service exam, and other professional licensing exams in China. Accordingly, finding the “standard answers” to political questions is a highly routinized practice for ordinary Chinese students and citizens. In this sense, inserting political questions into the bar exam is perhaps not as surprising to Chinese test-takers than to outside observers. It is possible that the practice reflected the particular political climate of the late 2000s, when “China’s turn against law” occurred, as Carl Minzner observes in his widely cited article. In that turn, the Chinese government and the CCP explicitly sought to situate the legal system under the more pressing concerns of maintaining social stability and preventing social unrests. Under this political background, making sure that future legal professionals at least understand (if not believe) the Party-state’s policy concerns seem a reasonable explanation for the “political turn” in China’s bar exam. After Xi Jinping’s rise to power in 2012, the CCP has been even more assertive on its role in the legal system and, therefore, the continuing use of political questions in the bar exam is not surprising.

Nevertheless, I agree with Stern that we need to take the political nature of professional qualification seriously, in China and elsewhere. In American Lawyers, Abel documents the history of “character tests” in the United States as a tool to exclude political dissidents from entering the bar. (P. 70.) In comparison to the exclusionary nature of the American-style character tests, the political questions in the Chinese bar exam constitute a subtler way of promoting lawyers’ political loyalty to the regime. Even though test-takers could theoretically give up all the political questions and still pass this exam, in practice most of them are trained to find correct answers to those questions, often through intensive cram courses and repeated practice exams. As a result, what Stern calls “preference falsification” exercises a symbolic function of defining the boundary of acceptable ideology and behavior under China’s political regime.

In this sense, the seemingly technical bar exam becomes an instrument of political control over the legal profession, a form of “soft repression” exercised not only by the state, but also by all the participants of the bar exam preparation. Stern gave a fascinating example of how a bar exam cram school lecturer explained to his class the fundamental logic of political questions in the exam: “memorize this one sentence . . . our Party is always glorious, great, and correct.” (P. 528.) As he continued to elaborate on this point with stories and jokes, the students laughed. But would they also laugh when they saw hundreds of activist lawyers detained in the “709 Crackdown” in 2015? Or when they heard the Supreme People’s Court President publicly denouncing judicial independence as an erroneous “Western concept” in 2017? Beneath the veneer of preference falsification there is a hard truth: The Party always trumps the law. This is the lasting pain of becoming legal professionals in China, and the bar exam is merely one of many symptoms in their careers that confirm it.

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Cite as: Sida Liu, Politicizing the Bar Exam , JOTWELL (September 12, 2017) (reviewing Rachel E. Stern, Political Reliability and the Chinese Bar Exam, 43 J. L. & Soc. 506 (2016)),