The Legal System Lecture I: The Idea of Law and Legal Systems A legal system A body of rules and

d principles, processes, institutions, and personnel/actors Primary concern = the creation and regulation of law Process of administration of justice Assumption No unifying entity holding the legal system together All actors & systems (institutions, procedures & personnel) are shaped by values The legal system reflects the values a society holds Law is involved with economic/political issues in HK Affect public interest/rights of the public No longer confined to criminal disputes e.g. National education curricula consultation/appropriateness? To what extent should the public be consulted? International treaties countries will not violate certain values previously agreed upon as worth protecting i.e. countries will frame their laws in a way that abide by these international commitments Judges in HK also look to other jurisdictions Refer to case law/legislation applied in other countries International norms, local laws for the publics interest etc. How to reconcile all that? Legal system is more than just administering justice its also a reflection of values System with a unifying objective? Why do we need a legal system? Structure Fairness Religious values are different different punishment People given power to impose punishment should be legitimized Equality everyone is treated equally for the same violation Why cant we just leave everyone under the governance of social/religious values? Need something that unifies/binds different people in society together Social cohesion

What are the functions of the various rules we have in society? Maintain order in society Set boundaries/limit as to what behaviors are acceptable Protect against certain kinds of harm Resolve conflicts There are other ways to resolve conflicts why do we need to turn to the law? E.g. you can fight for what you believe is yours Law can give us what we expect what we believe is suitable for us i.e. a special shawl specific performance Laws functions Social cohesion Provide order/security - Otherwise people might take the law into their own hands Protect/uphold important social/moral/religious values Protect rights and interests Govern relationships between state & citizen and between citizens inter se. Peaceful dispute resolution Justice/fairness Punishment Does the law content matter, or is it sufficient that the law is equal for everyone? People will not accept bad laws people should feel satisfied with the values the system represents Otherwise people will go outside of the law Who decides the content of law? Does it matter who decides it? Elected representatives to enact laws representatives can serve as the bridge between people and the government Why representatives: so that they have legitimacy, as they are elected due to their representation of the same set of values espoused by the public? To be efficient: select representatives you have confidence in to do the job on your behalf Is democracy the most effective way of ensuring representation? Risk of ignoring the opinions of minorities Then how should elections be structured so that the voices of minorities are heard? And what kinds of minorities are referred to? Would you set up a different elective body for each issue? Set up other means to examine how such minorities feel about a certain law/issue what do you think? Who decides when to set up committees on minorities issues? Is there a risk that some opinions are excluded if a certain official is chosen to represent such minorities?

Underlying theme which links everything up to form the legal system as it is today? Rights as dichotomous Right <-> duties If A has the right to free speech, then B has the duty not to interfere with As free speech Formal definitions of law A legal system should be fluid/malleable Modeled to reflect changes/development of modern society Law always undergoes change Law presupposes the existence of some kind of society it presumes that there is a community/society of people A rule, if violated, will cause penalty/brought to justice A social value is legal if one is punished upon violation of said value What is the common theme that underlies all such definitions of law? A set of rules enacted by a socially recognized body Punishment Degree of certainty/predictability the law is written down somewhere Objectives of law Maintains social order Creates a structure of authority/government Organization of society & organization of social behavior, activities, relationships & disputes Prevents undesirable behavior Provides framework in which to live our lives Communicates & reinforces social values (indirect effect of law) Regulation of relationship between state & individual and vis--vis other individuals Resolves disputes peacefully Consequences of a society without law? Thomas Hobbes: Social Contract theory In the human state, there is chaos/mayhem Giving up certain freedoms/rights so that the state can protect my other rights But no one actually agreed to these laws? The law only reflects the ideology of SOME of its people But overtime, people may embrace the ideologies espoused by the law because the law communicates societal values The law is much more than just a set of rules

Rule-centered paradigm (isolated from social context) Dispute-resolution system but sometimes also resolved through informal means Focuses on courts, lawyers, judges Describes rules that create & control these institutions and how they work in practice Overlook non-state agencies and ADR Isolated from the context Law is not a narrow institution that merely dispenses justice Law in action: realist approach Focus on the process Facts always unclear relevance Witnesses giving conflicting versions Breakdown of compartmentalization of law What the law says and what the police is actually doing, how the parties behave and how the judges adjudicate Rely on socio-legal studies Contextual approach Focus on the legal, social and political context Why the legal system is what it is Emphasis on the context, values and purposes How individual rulings/acts by individuals achieve the objectives of the law Where does the law come from? God? The natural order of things? Monarch (the divine right of kings) Spirit of the people as represented in a document such as a constitution As represented by leaders voted into government by the people From custom of social usage e.g. murder is wrong Identifying a rule Socially constructed common sense rules of everyday life Custom and expected behavior Govern things that have become important based on experience Developed within individual communities/religious groups Come from nature food, carbon emissions, electricity Natural instinct of survival Political traditions e.g. separation of powers ensure power is not concentrated in any one branch

When some rules bear similarity to law (e.g. religion), wouldnt they also qualify as law? Is religion a type of law? Not everyone may subscribe to the same religious order but everyone subscribes to social order Religion: authority comes from a divine body which people can choose to believe in or not, whereas for law, it comes from a recognized authority that is made legitimate by the fact that people cannot choose to subscribe to it they are made to do so BUT for some religions, you might not have a choice if you were born into it Religion gives higher standards for us to aspire to, but law is the basics? Not as rigorous (?) Should/does religion influence the content of law? Is law really neutral? Historically, law was derived out of religious values the Church and the state were one front many, many centuries ago even after they were separated, religious values continued to remain in the legal framework e.g. Sundays Law and morality Is law about morality? Does law always have moral content? Law indirectly/subtly reflect moral values they send messages that may entail moral content e.g. the right to remuneration for the amount of work done Should law reflect morals/religious values? But we may not share the same values The law however finds a way to reconcile differences How does law arrive at this acceptable compromise of different cultural values? If law does not reflect the values society espouses, then the law will not be respected, hence failing in its objective to unify the people/achieve social cohesion E.g. the case of Ms W a transsexual woman fighting for the right to marry, which is a right granted under the constitution, denied said right Biological gender recognized, hence her action failed - Why? The idea that it is natural - Laws only apply to people in their natural state it does not recognize that man can play with nature/tailor their genders - Sanctioning same-sex marriage = denying/defying the natural order of things, whereby a male and female should procreate Should the law punish immoral behavior or should law recognize that everyone has different morals? E.g. incest we arent naturally designed to do so How to compromise?

Does the law shape morality or does morality shape the law? What is justice? How can we achieve/expect justice when everyone has different value systems/moral or religious judgments? Do we have a duty to obey a law that is recognized as morally bad? Do we have the duty to follow all laws? How far should we go? Should we just follow whatever is on paper when we know that people might not always be enacting the best laws? How do we compromise? Is it adequate to simply entrust representatives with the power to enact laws? Identifying the law look at the source of that law Legislative act Creates a statue/enacts a law Laid down in accordance with a formal procedure by an institution whose privilege of making law is recognized and accepted by the community Through judicial activity Case law = decisions made by judges Non-statutory rules and principles formulated & enforced by judges

Legal institutions Legislative institutions enact law Judicial institutions settle disputes Executive institutions protect citizens by enforcing the law and develop policy Legal Personnel What is justice? Equality (before the law), regardless of sex, gender, religion etc. Retribution Certainty fairness is expected Accountability describes the societal code of conduct i.e. you get what you deserve However, more recently the idea of rehabilitation has also been embedded in the idea of justice, as opposed to mere retribution Justice and law As long as the process through which you seek justice is fair, the outcome is likely to be just Distributive principle sometimes in society, social/economic inequality exists, and inequality demands different applications to people from different backgrounds Readjust historical imbalances such that people can be treated equally - inequality to ensure equality

Substantive law vs Procedural law

Classifications of the law International law (Convention Against All Forms of Racial Discrimination) Constitution (i.e. the Basic Law) - Enacted laws superior to case law if inconsistent Further classifications: National law (passed by NPCSC of PRC) Domestic or municipal law (ordinances in HK) Decisional law: case law or common law, overrides customary law Customary law (custom/convention) Civil law vs Criminal law

Religious law Canon law Four features of the common law/civil law system Adversarial/in?