‘Clinical Legal Education’— Observing, Comparing and Analyzing the Differences in Germany and China for each other’s Respective Advantages
| Published date | 01 July 2015 |
| Author | Jan Hendrik Lampe,Jan-Gero Alexander Hannemann |
| DOI | 10.1177/2322005815578551 |
| Date | 01 July 2015 |
| Subject Matter | Essays |
‘Clinical Legal Education’—
Asian Journal of Legal Education
2(2) 157–169
Observing, Comparing and
© 2015 The West Bengal National
University of Juridical Sciences
Analyzing the Differences in
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Germany and China for each
DOI: 10.1177/2322005815578551
http://ale.sagepub.com
other’s Respective Advantages
Jan-Gero Alexander Hannemann1
Jan Hendrik Lampe1
Abstract
‘Clinical Legal Education’ in Germany and China is a new approach towards changing (one might even
say completing) law studies and the curriculum at universities. It provides a lot of opportunities
and benefits for the participating students and thereby for the broader community. Adapted from
US legal clinics, clinical legal education has changed within the last few years both legal systems and
legal education. The surprisingly strong development in Germany and China which could not be
more different shows many interesting aspects on how to build up legal clinics and how to influence
the society within. In both countries education used to be dominated by theory. Practical matters
were not, or at least not for students taken into consideration for a sufficient amount of time.
The authors attempt to compare and analyze the development of clinical legal education and student
legal services in China and Germany.
This analysis provides a broad approach from the historical roots to the development and thereby
influence of the national umbrella organizations and cross-border influences.
One does not only find many similarities, but also discovers a common understanding of legal
clinical education as well as differences that can be used to understand one’s own legal clinic system
and develop it further. This analysis provides the possibility to strengthen the global development of
‘clinical legal education’.
Introduction
A lawyer needs to be familiar with the law. He must have a fundamental and clear comprehensive
understanding of how to solve complex and delicate situations.2 Theory3 in legal education prevails
1 Student, Faculty of Law, University of Goettingen.
2 RobbeRs, IntRoductIon to GeRman Law, Ch 30 Para 55 (5th ed. 2012).
3 Zhen Zhen, Clinical Legal Education in China—Current Situation and its Future of China’s Clinical Legal Education (2008)
123 Paper published at www.mcgeorge.edu/Documents/Zhen%20(english).pdf (last visited 29 January 2015).
Corresponding author:
Jan-Gero Alexander Hannemann, Lenthe Str. 8, 29221 Celle, Germany.
E-mail: JGA.Hannemann@googlemail.com
158
Asian Journal of Legal Education 2(2)
worldwide, whereas practical components which are crucial for work are barely taken into consider-
ation.4 Various aspects such as clinical legal education (‘legal clinics’), simulated court proceedings
(moot court) or client calls (client interviewing) are becoming increasingly important.5
In this article the two authors attempt to compare and analyze the development of student legal
services in China and Germany which has not only many similarities, but also might serve with new
ideas improving other legal clinical programmes cross borders. Legal clinical education is a global
development in the field of legal education. ‘Legal Clinics’ (‘student legal advice’) in China6 and
Germany7 is a young but incredibly fast growing approach, which has its origins in the 1960s in the US.8
The development displays a lot of similarities to the development of moot courts, which are now a solid
basis of promoting a more practical approach in law school. In today’s global world a widespread
network is sometimes the key and most of the time essential.
Therefore it is useful to compare the development in different countries by building and using a
network of ideas to find out the best solution for a problem, promote the idea and support legal clinical
education. This article aims at providing a profound basis for the idea of clinical legal education by
giving a view of two countries in which the idea is growing fast. The fuel that keeps that engine running
is the social worth, on the one hand, and the benefits for the community and students, on the other hand.
The Historical Development and the Status Quo
of ‘Legal Clinics’ in China and Germany
1. ‘Legal Clinics’ in Germany
Today ‘student legal advice’ (German: Studentische Rechtsberatung) in the Federal Republic
of Germany means (first) the practical legal advisory services provided by law students and
(second) a consolidated organization of several students who offer legal advice services, based
on the RDG (Legal Services Act)9 which opened up this opportunity after more than 70 years
of the historically loaded10 and highly controversial11 RBerG (legal Advice Act).
The first tries to establish legal clinics in Germany some of which date back to 1900, when the
first law teachers tried to open universities for law clinics.12 For decades giving legal advice was
4 David J. Herring, Clinical Legal Education: Energy and Transformation 31 UNI. OF TOLEDO L. REV. 621–28, (2000), U. of
Pittsburgh Legal Studies Research.
5 See Ingeborg Puppe ZIS 2008, 1.
6 Zhen, supra note 3 at 122.
7 Andreas Bücker & William A. Woodruff: Clinical Legal Education—eine Option für die deutsche Juristenausbildung?
JZ Bd. 63 (2008), 22, 1068–76.
8 Roy Stuckey, Teaching with Purpose: Defining and Achieving Desired Outcomes in Clinical Law Courses 13 CLInIcaL L. Rev.
807, 812 (2007); Bücker & Woodruff, supra note 7.
9 About the history, see Rücker, Rechtsberatung, Diss. Bayreuth, 2007.
10 The RBerG was ruled to be not in line with the German constitution in two cases: BVerfG, Beschl. v. 29.07.2004 – 1 BvR 737/00;
NJW 2004, 2662; JZ 2004, 1122; MDR 2004, 1447; EWiR 2004, 1047; BVerfG, Beschl. v. 16.02.2006 – 2 BvR 951/04; NJW 2006,
1502.
11 ‘Gesetz über außergerichtliche Rechtsdienstleistungen’ since 12 December 2007, BGB1 I 2007, 2840. In effect since 1 July
2008.
12 Georg Frommhold, Juristische Kliniken, IN deutsche JuRIsten-ZeItunG, Jg. 5, 1900, S. 448–50.
Hannemann and Lampe 159
strictly restricted. It was only allowed to lawyers who had a special permission,13 automatically
excluding law students from giving legal advice. These strict rules and regulations caused a
severe number of complaints and law cases against the government. One of the reasons were the
impact against the constitutions guaranteeing the general freedom of acting (Art.2I GG).
Therefore, the law was soon ruled as a violation of the constitution by the high court.14 It was
based on these circumstances that the government had to rewrite the law and empower a new
version. On 1st July 2008 the ‘Rechtsdienstleistungsgesetz’ (RDG)15 came into effect which
lowered the rules and regulations concerning the ability and requirements to give pro-bono legal
advice as stated in § 6 RDG.16 Students are now allowed to give pro-bono legal advice, which
was the first step towards the establishment of legal education in Germany. Since then legal
clinics in Germany have witnessed a rapid growth. Even though the initial years showed little
growth the idea soon became viral and spread all over Germany. Between 2011 and late 2014
the number of legal clinics in Germany has risen up to 70. Some of them are already well
established and some are in the process of founding. The recent numbers and developments have
shown that more and more universities are picking up the idea and are supporting legal clinics
by integrating them into the university structure. However legal clinics are still not allowed to
act in court.
The most important ethical guidelines for students attending a ‘legal services’ can be found in
§ 6 RDG. The provision of legal services (legal advice in individual cases) is open for almost
everyone as long as it is provided pro bono.17 In addition, however, it is according to § 6 II RDG
necessary to be under the observation of a qualified person (min. 2nd State Examination).18
2. ‘Legal clinics’ in China
The traditional Chinese legal education has a long tradition and dates back to the first unified
written law (Da Qing Lu) in the early ‘Qing Dynasty’.19 The education in China has always
been dominated by the theory which had lead to a culture of rote learning. This has caused a
lack of practical knowledge and the phenomena of students being prepared only in theory.20
Until 1978 there was no professional legal training21 which is why there are only reliable data
for the subsequent period.22 This situation resulted in the fact that by this year there were only
13 Patentanwälte, Steuerberater, Notare und weitere Personen mit besonderer Erlaubnis Rechtsberatung (Patent Attorneys,
accountants, notaries and other persons with special permission on legal advice).
14 BVerfG, Beschluss v. 29.07.2004 – 1 BvR 737/00, NJW 2004, 2662 (unentgeltliche Rechtsberatung I/Kramer I); BVerfG,
Beschluss v. 16.02.2006 – 2 BvR 951/04, NJW 2006, 1502 (unentgeltliche Rechtsberatung II/Kramer II).
15 Gesetz über außergerichtliche Rechtsdienstleistungen (Law about extrajudicial legal services) vom (from) 12.12.2007, BGBl.
I 2007, 2840.
16 Vgl. Prümm, Handbuch Studentische Rechtsberatung StuR an der HWR Berlin (Textbook about the Legal Clinical StuR at
HWR Berlin), 2011, S.11.
17 German-Parliament print (BT-Drucksache) 16/3655, 57.
18 Bücker & Woodruff, supra note 7; Hans-Friedrich Müller Pro-Bono-Beratung nach dem neuen Rechtsdienstleistungsgesetz
(Pro-Bono-Legal Advice on the base of the new legal...
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