Hong Kong Special Administrative Region and Positivism

Hong Kong Special Administrative area and PositivismCritical Essay on Positivism with Special Reference to theHong Kong Special Administrative RegionS1 incomingTheS2 word positive, as used in jurisprudence, is derived from the Latin word positum, meaning having been laid down. Its foundation consists in the pedigree thesis, separability thesis and the apprehension thesisS3.The positive integrity school has its main pillars, such as Jeremy Bentham, John Austin, H.L.A Hart, Hans Kelson. This essay will study their views with reference to the Hong Kong Special Administrative Region (HKSARS4).1. The pureblooded dissertationEvery society has some form of social order, some way of marking and encouraging approved behaviour, deterring disapproved behaviour, and resolving disputes. The pedigree thesis asserts that well-grounded validity is a function of certain social occurrencesS5.1.1 Bentham and AustinAccording to Bentham and Austin1S6, right is a phenomenon of societies with a sov ereign a determinate person or group who have supreme and absolute de facto power. The laws in that society atomic number 18 a subset of the sovereigns commands general orders that apply to classes of actions and people and that are backed up by threat of force or sanctionS7.. This imperatival theory is positivist, for it identifies the instauration of court-ordered systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral duty to rule or whether his commands are meritorious.Imperatival theory has two otherwise distinctive features, monism and reductivism. The mMonism the theory represents all laws as having a single form, imposing obligations on their subjects, though non on the sovereign himself. The Reductivism the theory on the other hand maintains that the normative language used in describing and stating the law talk of authority, rights, obligations, and so on can all be analyszedS8 without remainder in non-normative terms, ultimately as concatenations of statements about power and obedienceS9.Imperatival theory does not accord with the complexities of the present age. fFor example, in Hong Kong (HK), according to the Basic justice obligate 1,2S10, HKSAR is an inalienable part of the Peoples Republic of China (PRC). Under the system of One Country, Two System, reign of Hong Kong Special Administrative Region (HKSAR) belongs to PRC. PRC delegates power (executive, legislative and final adjudication power) to HK through Basic lawfulness (commands). The Basic Law has the feature of beingness reductivist, as it is concatenationsS11 of statements about power and obedience. Basic Law prowessicle 22 states that Basic Law is not only spinal column on HK, but also binding on PRCs institutions (sovereign),3, therefore it does not haves the feature of monisticS12. In addition, the law is not backed up by threat of force or sanction from PRC. HK citizens agree with the Basic Law beca use they realiseS13 that the law provides various advantages to them all, other than by fear.1.2 Hans KelsenHans Kelsen, as a positivist, presents a normative approach and is concerned with what the law was and not what it ought to be, and sought a science of law free from metaphysical elements (hence a pure theory). In addition, Kelsen retains the imperativalists monism but abandons their reductivismS14.On Kelsens view, law is characteriszed by a basic form and basic norm. The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behaviour (the delict) is performed. On this view, law is an indirect system of guidance it does not tell subjects what to do, it tells officials what to do to its subjects under certain conditions. In HK, if Cap 210 Theft Ordinance s24 creates an umbrage of handling stolen goods which has penalties attached to it and the defendant handles stolen goods then the judge ought to apply the appropriate penal tyS15. For Kelsen, as opposed to Austin, this is not just a case of the official being under a duty, but also having power or discretion in such situation. What we ordinarily regard as the intelligent duty not to handling stolen goods is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for handling stolenS16 goods 4.For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. According to KelsenS17, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers jawred on it by the legislature, which confers those powers in a manner provided by the constitution, which wasS18 itself created in a way provided by an earlier constitution. The very first constitutions authority, says Kelsen, is presupposed.. Kelsens will view is that an HK Ordinance is legally valid bec ause the Basic Law confers members of the Legislative Council5 and the HK Government6 the power to propose new legislation,, in the form of bills, which are considered by the Legislative Council for enactment.7. The Basic Law confers those powers in a manner provided by the Chinese Constitution Article 31,8, which was itself created in a way provided by an earlier constitution, Organic Law.9S19.HoweverS20, it is not easy to identify the basic norm in HK society as Kelsens idea of the nature of the basic norm is unclear. Since basic norm does not have a specific content, and since it is primarily presupposed, its utilisation in the validation of the other norms in the hierarchy can be fraught with obscurities.1.3 H.L.A. HartIf law cannot ultimately be grounded in force, or in lawS21, or in a presupposed norm, on what does its authority rest? H.L.A. Hart comes up with an answer for the above question,questionS22 he resembles Kelsens emphasis on the normative foundations of legal syst ems, but rejects Kelsens view of authority in favour of an empirical one10. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is a social rule that exists only because it is actually practiced. Hart makes use of two types of rule primary and secondaryS23. Primary rules are those of obligation, which state what must or must not be done. tThese are duty-imposing rules. Secondary rules are those of comprehension, change and adjudication. tThey are power-conferring rules designed to supplement the primary rules. The secondary rules repair the operation of the primary rules. People obey the primary rules under the legal system and the administrators of the system would also have to accept the rules of change, adjudication and experience.It is an important feature of Harts nib that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists picture of the political system was pyramidal power, Harts is much similar WebersS24 rational bureaucracy.In HK, by looking at the legislation, we can identify many ordinances as primary rules. Examples are to be found from Cap cc Crimes Ordinance and Cap 210 Theft Ordinance, etc. HartS25 tells us that these primary rules are needed concerning the free use of violence, theft and deception to which citizens are tempted but which they must, in general, repress if they are to coexist in close proximity to each other.The rule of recognition, classified as a secondary rule, is the ultimate rule which determines the existence and validity of other rules in a legal systemS26. The rule of recognition resolves the problem of uncertainty as to the legality and validity of rules. HKs rule of recognition can be found in the General Principles Chapter One of the Basic Law. For example, in the chapter, Article 2 of the Basic Law mentions that the National Peoples Congress (NPC) authoriszes the HKSAR to lie with legis lative power. Article 2 states that HKSAR shall safeguard the rights and freedoms of HK people. Article 8 states The laws previously in force in HK shall be maintainedS27. Article 11 states that legislative and legal systems, and the relevant policies, shall be based on the provisions of the Basic Law. No law enacted by the legislature of the HKSAR shall contravene the Law. Another type of secondary rules, the rules of change, enables changes to be made in the legal obligations which people may have under the duty-imposing primary rules of a legal system. There are two types of the rules of change mystic rules of change these rules enable changes to be made in the legal relationships between private persons, for example, the rules of contract law and Cap 26 Sale of Goods Ordinance. Such rules confer power rather than imposing duties on HK residents in their private capacity.Public rules of change these rules give public legislative officials the power to change the primary and oth er rules of a legal system. In HK, the main part of this rule lies at Article 73 of the Basic Law where it states that the Legislative Council has the power to amend laws in accordance with the provisions of the Basic Law and legal proceduresS28. The last type of secondary rules, the rules of adjudication confer power on judicial officials to carry out the transit of adjudication where a law has been breached or a dispute has risen. In HK, the rules of adjudication can be found in Article 2 of the Basic Law which states that the NPC authoriszes the HKSAR to roll in the hay independent judicial power, including that of final adjudication. In addition, Article 84 of the Basic Law confers the courts to adjudicate casesS29.2. The Separability dissertation Positivists insist on the importance of the separation of law from morality. This thesis comprising the foundation of legal positivism is the separability thesis. This abstract formulation can be interpreted in a number of ways. tThe most honey oil view is that the separability thesis is interpreted as qualification only an object-level claim about the existence conditions for legal validityS30. As H.L.AS31. Hart describes it, the separability thesis is no more than the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.11. According to Kelsens Pure theory of LawS32, all elements impure or extraneous to law had to be split off, to croak a remnant of material which is essentially legal. Accordingly, all natural law, moral, religious, social, and other accretions that are not strictly law had to be eliminated.More recently, Klaus Faber12S33 interprets it as making a meta-level claim that the definition of law must be entirely free of moral notions. This interpretation implies that any reference to moral considerations in be the related notions of law, legal validity, and legal system is inconsistent with the separability thesis.Based on these views, we can come to a conclusion that the object-level interpretation of the separability thesis denies that there are moral constraints on legal validity, it implies the existence of a doable legal system in which there are no moral constraints on legal validity.In HK, it is beyond doubt that moral considerations bear on legal validity. Ffor example, in the discussion of Prevention of Cruelty to Animals (Amendment) Bill 2006 at the Bills Committee and the judicial review on the age of sexual consent for homosexuals, moral played an important role on legal validity.3. The Discretion Thesis Discretion thesis is the view that judges make new law in deciding cases not falling clearly under a legal rule. A judge cannot decide a case that does not fall clearly under a valid rule by interpreting or applying the law he/she must decide the case by creating or promulgating a law that did not exist prior to the adjudication.13S34The discretion thesis does not belong to positivisms theoretical core, but many positivists regard the discretion thesis as a contingent claim that is true of some, but not all, possible legal systems. For example, HartS35 believes that there will inevitably arise cases that do not fall clearly under a rule, but concedes a rule of recognition could deny judges discretion to make law in such cases by requiring judges to disclaim jurisdiction or to refer the points not modulate by the existing law to the legislature to decide14.In HK, an example can be found in the case of HKSAR v Ng Kung Siu Others15 (decided on 15 December 1999) (Ng Kung Siu). In this case, the Court of Final Appeal (CFA) has to decide whether s7 of the National Flag Ordinance and s7 of the Regional Flag Ordinance which criminalise the desecration of the matter flag and the regional flag are inconsistent with the guarantee of the freedom of expression (Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 39 of the Basic Law). The court finally decided that Freedom of expression is not absolute and subject to certain restrictions (a) respect of the rights or reputation of others (b) the rampart of national security or of public order (ordre public), or of public health or morals. Further, it created or promulgated a law by stating that it is customary ground that the burden of proof rests on the Government to justify any restrictionS36.4. ConclusionFrom the above discussion, we can see that Positivisms Imperatival theory cannot explain wherefore HK citizens agree with the Basic Law. In addition, it is not possible to identify the basic norm in HK society as Kelsens idea of the nature of the basic norm is unclear. Also, in HK, moral did play an important role on legal validity. Positivism theory can hardly fully explain the electric current HK legal system.Kelsen, Hans (1945). General Theory of Law and State, trans. A. Wedberg, repr. 1961. New York Russell and Russell, p. 61Footnotes1 Austin, John, The Province of Jurisprudence Determined (Cambridge Cambridge University Press, 1995) p166.2 Article 1 of the Basic Law The Hong Kong Special Administrative Region is an inalienable part of the Peoples Republic of China.3 Article 22 of the Basic Law states No department of the Central Peoples Government and no province, independent region, or municipality directly under the Central Govt. may interfere in the affairs which the HK SAR administers on its own in accordance with the Law.4 Kelsen, Hans (1945). General Theory of Law and State, trans. A. Wedberg, repr. 1961. New York Russell and Russell, p.61.5 Article 74 of the Basic Law.6 Article 62 of the Basic Law.7 Article 73 of the Basic Law.8 Chinese Constitution (CC) Article 31 CC will not apply to HK directly, except CC Art 31 from which HK Basic Law was derived. the state may establish special admin regions when necessary. The systems to be instituted in special admin regions shall be prescribed by law enacted by the NPC in light of specific conditions. (therefore BL apply to HK, without any other explicit endorsement from NPC). Art 31 for HK, Macao and Taiwan.9 Organic Law of the National Peoples Congress of the Peoples Republic of China was adopted by the Fifth Session of the Fifth National Peoples Congress on Dec 4, 1982 as Chinas Constitution.10 Legal Positivism, First published Fri 3 Jan, 2003, Stanford Encyclopedia of Philosophy.11 Hart, H.L.A., The Concept of Law, Second Edition (Oxford Clarendon Press, 1994) pp. 181-82.12 Faber, Klaus, Farewell to Legal Positivism The Separation Thesis Unraveling, in George, Robert P., The Autonomy of Law Essays on Legal Positivism (Oxford Clarendon Press, 1996), 119-162.13 Dworkin, Ronald M., Taking Rights Seriously (Cambridge Harvard University Press, 1977), p.17. Ronald Dworkin describes this thesis as follows The set of these valid legal rules is exhaustive of the law, so that if someones case is not clearly covered by such a rule . . . then that case cannot be decided by applying the law. It must be decided by some official, like a judge, exercising his discretion, which means reaching beyond the law for some other sort of standard to address him in manufacturing a fresh legal rule or supplementing an old one.14 Hart, H.L.A., The Concept of Law, Second Edition (Oxford Clarendon Press, 1994), p. 272.15 Ng Kung-siu Anor v HKSAR 1999 1 HKLRD 783, 2 HKC 10 (Court of Appeal) and HKSAR v Ng Kung-siu Anor 1999 3 HKLRD 907, 2000 1 HKC 117 (Court of Final Appeal).S1You must have a title, it acts as a focus for the first page.S2Indented paragraphs look better.S3You must citation your generator for everything you say like this. The marker must have the option of checking facts.S4A longer introduction required, elaborate more on what positivism is and what you intend to indicate for.S5OK, true enough, but you must cite your source.S6Good use of footnotes, excellent. See end for my notes on what to put in a footnote th ough.S7goodS8Dont use American spellingsS9Good, but you need to cite a source.S10The footnote should always come after the punctuation.S11Consider re-writing, good to use words like this, but used in slightly the wrong context, perhaps sentence structure necessarily work.S12Again wrong word, probably monasticism.S13Good to use the English spelling here when you did not earlier.S14Cite your source.S15Are you intending to imply that this does not happen on occasion?S16Good.S17You must cite the reference.S18Looks untidy having two whiches like this in the same sentence.S19This paragraph contains good information, but the English needs cleaning up a little, it does not read well.S20Should not start a paragraph with however.S21or in law doesnt make a lot of sense.S22Cite your source.S23Source.S24Cite weberS25Where? cite a reference.S26Good.S27If you are quoting, use quotation marks , not .S28GoodS29Again, good.S30Good.S31No need to use his initials, Hart will suffice.S32Cite your sour ce.S33Good, you cite your source here but not elsewhereS34Good.S35Reference.S36Good.