It is an article of faith among China-watchers that what China most needs is not democracy but a legal system, preferably one like Britain's. Two years ago, when I was working as a reporter in Beijing, the British government even brought over Cherie Booth to show off the British legal system to the Chinese.
The highlight of British Law Week (as this exercise was called) was a mock court in the basement of a luxury hotel. Rows of Chinese policemen watched as British barristers staged a murder trial to illustrate how presumption of innocence, a jury, cross-examination of witnesses and a western-style judge work in practice. The Germans might be able to teach the Chinese how to build better cars, the Americans better planes, but the British have their justice system to offer.
My own recent experience of British justice bears no relation to this export model. In fact I experienced monumental and callous ineptitude. I encountered the law in perhaps the commonest way-divorce. (The Office of National Statistics recorded 160,502 divorces in the UK in 1998.) Without children, a shared business or large sums of money to divide, our case should have been as straightforward as you could hope. Yet it took four years and cost more than ?100,000. And it is still not over. The arrogance and incompetence of those involved began to resemble the Chinese system we are so eager to reform.
My ex-wife hired a large solicitor's firm known for aggression in divorce cases. These solicitors, charging ?300 an hour for their services, none the less seemed unable to draw up a legal document correctly. By my count, they have produced six important documents to date with often elementary mistakes, ranging from using the wrong forms to leaving out information about savings.
Their mistakes prolonged the process by years and sowed so much confusion, suspicion and ill-feeling that compromise became harder and harder. Some lawyers have suggested to me that this incompetence is the product of a system in which partners in a firm of solicitors, earning six-figure salaries, employ an army of junior people to do most of the work. They are barely supervised and are expected to learn on the job at the expense of their clients. Whatever the reasons, matters reached an impasse, and we went to court.
Although both of us were living abroad and had had to fly in for the occasion, the Oxford court, we discovered on arrival, had failed to schedule a proper hearing. Instead, two barristers negotiated an agreement, and my ex-wife drew up a draft order which was eventually approved and signed by a judge with the approval of four lawyers present. After we had gone home, my ex-wife's barrister, who had drawn up the agreement, called her counterpart on her mobile phone to say that she had made a mistake and wanted to renegotiate. At stake was about ?50,000-a sum smaller than that spent by the lawyers in fighting over it.
Months of letters, threats and hearings followed. When the dispute reached the High Court in April, I discovered that the other side could afford a QC, another barrister, and a team of other lawyers and assistants. They were not being paid by my wife, nor even by her former lawyers, but through an insurance system, the Bar Mutual, which covers all barristers. Bar Mutual and its equivalent for solicitors had swung into action because my wife had hired another lawyer to sue her former barrister for professional negligence. (Until recently, barristers were not even legally responsible for their actions.)
The self-regarding clubbiness of the legal profession was apparent from the start. The judge began by admitting that he knew the barrister accused of negligence quite well, having met her socially and at work on many occasions. He then made a point of asking her which Oxford college she had attended.
After six weeks of deliberation, the judge decided not to make a new point of law. He concluded that the original agreement had been "a mistake" and "a misunderstanding." It was not the fault of the judge who had approved the court order, the two barristers who had negotiated it, or even the various solicitors who had advised and supervised it.
I thought sadly of those who fall foul of Chinese officialdom and are detained. No one is released before signing a comprehensive "confession" and "self-criticism," acknowledging that it was all their own fault. Whereas in China the law is a matter of connections to the right people (guangxi) and who can spend most on bribes, in Britain the system is about, well, "old-boy" networks and who can afford a QC.
China now has only 100,000 lawyers, a tiny number for a population of 1.3 billion. Their status as officials of the state is only beginning to change since the "lawyer's law" of 1997, which made it legal, in theory, to work as a defence lawyer, defending clients against the state. The rule of man, as the Chinese call it, is slowly giving way to the rule of law. But the great power of the state and of corrupt officials still results in the torture of witnesses, imprisonment of lawyers and perversion of justice.
My own case is of course trivial compared to such routine and gross abuses of human rights. Yet seeing the British legal system in action has made me doubt the self-professed superiority of the British legal profession. It has also made me more tolerant of the faltering forward steps of countries such as China, which risk replacing one predatory caste with another.
