The tremendous growth in the number and sophistication of Chinese lawyers in the past two decades highlights the importance of legal practice to social and economic development, and also the need to ensure lawyers are able to perform their role effectively.
In the English-speaking common law jurisdictions, the legal profession has developed over several centuries and its importance is reflected in the terminology that lawyers use to describe legal practice and the legal profession. This article will examine terminology and its influence on the way lawyers operate and are perceived by society. The professional oaths that lawyers are required to take in order to engage in legal practice will also be examined.
Traditionally, the term “profession” in English was used to describe the three “learned professions”: theology, medicine and law. These professions were distinguished from other occupations on the basis that their members were required to complete specialised training and made their livelihood through the provision of expert advice and services to others, usually to the exclusion of other business activities.
The learned professions were also distinguished from other occupations on the basis of importance. Lawyers were vital to achieving a just society that was governed by the principle of rule of law, under which everyone was equal before the law. Doctors were vital to healing people and saving lives. And theologians or priests were vital to maintaining religious faith and saving souls.
In traditional Chinese society, teachers probably came closest to the concept of a learned profession because of the respect they received and also their important role as custodians of knowledge. The character for teacher or master appears in the word for lawyer, conveying the concept of lawyers as custodians of legal knowledge.
The word “profession” comes from the Latin word profession, which originally referred to a religious oath that was taken by members of a religious community to “profess” their beliefs and confirm their faith.
Similarly, the concept of taking an oath was adopted by the medical profession with the Hippocratic Oath, and also by the legal profession, with members usually required to take an oath before being admitted to practise law.
In England, between the 16th and 19th centuries, lawyers were required to swear an oath of allegiance to the monarch, or “crown”, and also an oath of supremacy to the Church of England.
The requirement to swear these oaths was abolished in 1860, partly because of doubts about their effectiveness and also as a result of the difficulty that they created for lawyers who believed in religions other than the Church of England.
Interestingly, the oath of allegiance to the crown still survives in some common law jurisdictions, including certain states of Australia.
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Andrew Godwin
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia.
