Legal hybridity in Hong Kong and Macau.

AuthorCastellucci, Ignazio
PositionIntroduction through VI. Testing the Chinese SARs' Case Against Palmer's Analytical Grid on "Legal Mixity" and Refining the Grid, p. 665-714 - Symposium: Mixed Jurisdictions

The article aims to compare the case of the two Chinese Special Administrative Regions (SARs) of Hong Kong and Macau against the theoretical grid developed by Vernon V. Palmer to describe the "classical" civil law-common law mixed jurisdictions. The results of the research include an acknowledgement of the progressive hybridization of the legal systems of Hong Kong and Macau, hailing from the English common law and the Portuguese civil law tradition, respectively, by infiltration of legal models and ideologies from Mainland China.

The research also leads to a critical revision and refinement of the methodology and tools developed by Palmer in order to make them applicable to a wider range of processes of legal hybridization beyond "classical" mixes, and to a better appreciation of how transitional political and institutional phases play a critical role in legal "mixity" or hybridity.

Cet article a pour but de comparer les cas des deux regions administratives speciales (RAS) de Hong Kong et de Macao avec la grille theorique developpee par Vernon V. Palmer afin de decrire les juridictions mixtes > droit civil-common law. Les resultats incluent une reconnaissance de l'hybridation progressive des systemes juridiques de Hong Kong et de Macao, originaires de la common law anglaise et de la tradition civiliste portugaise respectivement, par l'infiltration des modeles juridiques et des ideologies de la Chine continentale.

La recherche amene egalement une revision critique et un affinement de la methodologie et des outils developpes par Palmer afin de les rendre applicable a un plus large eventail d'hybridation allant au-dela des melanges > et a une meilleure appreciation de comment les phases de transition politiques et institutionnelles jouent un role critique dans la > ou l'hybridite.

Introduction I. Theoretical Frame and Methodology A. Vernon Palmer's Theoretical Findings B. Application of Palmer's Grid to the Case of the Chinese SARs II. China and Its Two SARs: Institutional Superimposition III. Legal Infiltrations: Interpreting the Basic Laws A. The Interpretive Mechanism B. Ng Ka Ling C. Subsequent Interpretation of the Basic Law by the NPCSC D. The Congo Case E. Identifying Principles and Rules Being Infiltrated F. The Unequal Duality of Vision IV. Delegalization: The Closer Economic Partnership Arrangement V. Hybridization: The "Soft" Way A. Macau and Its Lower Resistance to Legal Infiltrations from Mainland China B. General Differences Between the Two SARs C. Article 23 of the Basic Laws D. Legal Education in Macau E. Cultural Changes F. The Administrative Formant VI. Testing the Chinese SARs' Case against Palmer's Analytical Grid on "Legal Mixity" and Refining the Grid A. The Test for "Obvious Amount" B. The Test of "Critical" Features C. The Test of Subjective Perception of "Mixity" D. Refinement of Palmer's Grid VII. Testing the Tools for Research on "Mixity" Against China: More Lessons to be Drawn A. Modern Mixed Jurisdictions B. Importing Foreign Legal Models C. Subjective Perception D. New Categories "I do not think we fully understand them."

--Vernon V. Palmer

Introduction

A serious collective effort has been produced in recent years by the comparative legal scholars' community to produce advances in out understanding of mixed jurisdictions. Despite the candid admission of one of the champions of the field (quoted in the epigraph to this article), (1) out knowledge in this subject has certainly improved in the last decade or so. The geographic area of research on "mixity" has been enlarged far beyond the relatively small number of "classical" mixed legal systems, to involve other jurisdictions featuring obvious interactions and/or contaminations of different legal cultures. (2)

It has been recognised that "mixed"--beyond the "classic" use to designate jurisdictions featuring both civil law and common law elements (3)--can fruitfully be associated with another term featuring a similar but wider scientific meaning, that of "hybrid": (4) "[t]he work of mixed jurists, of legal historians, and of some comparativists has led us to the recognition of the 'universal fact' of legal hybridity." (5) Focus has now shifted from classifications and nomenclature to methodological issues, in order to better understand not only the features of this or that jurisdiction, but also, or especially, hybridity in general. "Mixing" forces at work are being scrutinised in a growing number of jurisdictions, as well as patterns and/or strategies of mingling amongst the different components of a given "hybrid" product. (6)

One of the fields arousing comparative scholars' curiosity in recent years is certainly Chinese law--its legal tradition, legislation, legal ideology, and developments. Chinese law has become the subject of substantial legal research under innumerable points of view; an enormous mass of scholarship has been produced. We certainly know a lot more about China and its legal environment than we used to know, say, twenty years ago. (7) However, the legal mixing or hybridisation process taking place in China--mentioned by comparative and Chinese law scholars almost matter-of-factly but in very general terms only--has not yet been analysed by many, with respect to the actual hybridisation strategies and "ways".

This paper has, thus, a dual purpose. The first one: combining the two mentioned discourses, I will consider the case of China and its two Special Administrative Regions (SARs), Hong Kong and Macau. Of course it would be very interesting to analyze extensively the many legal and constitutional implications of the institutional setting of the two Chinese SARs. It would, however, be far beyond the reach of this essay which is focused on the hybridization dynamics there, while also expanding and innovating our knowledge about Chinese law and its satellites. The second purpose consists of an attempt to identify, in more general terms, elements of relevance for the research on legal hybridity and the process generating it, and to expand and refine the methodological toolbox for the purpose. (8)

These introductory notes are aimed at identifying the main objectives of the research. In the next section the theoretical frame and the methodology followed will be stated. The subsequent analysis will develop starting with the change in the institutional setting of the two regions of Hong Kong and Macau. This change produced an enormous amount of debate and research in the legal, constitutional, economic, political, and social fields: the profile of institutional change highlighted in this essay is related to how institutional changes of that level are, almost by definition, introducing some degree of superimposition of values and legal hybridisation.

Phenomena of legal infiltration from Mainland China through legal and institutional mechanisms will then be described with relation to Hong Kong. A short mention, but still important in the view of this author, of the mechanism for dispute resolution in economic cooperation between the Mainland and each SAR, within the frame of the CEPA agreements, will permit an appreciation of how an important economic territory has been de-legalised as a consequence of the new political setting. Finally, other "softer" ways of legal hybridisation will be identified, mostly in relation to Macau.

The data exposed will then be assessed according to the chosen methodological gauge. The tool itself will be discussed, eventually, against the data collected here and previous consolidated "mixity" knowledge--in a circular process, to some extent, of adaptation between tool features and matter description, as is often the case in applied sciences and technology--leading to some final and more general submissions on legal "mixity", hybridity, and on the methodology to research them.

  1. Theoretical Frame and Methodology

    1. Vernon Palmer's Theoretical Findings

      Having to start from some firm methodological ground, the "classical theory" of mixed legal systems elaborated by Vernon Palmer probably represents--if originally related to the more limited environment of "classical" mixed jurisdictions--the only effort so far to provide a concrete classificatory grid to identify the common features typical of "mixed" common law-civil law legal systems around the world. (9)

      These common elements include, in short: (a) The coexistence of both civil law and common law traditions, each with their typical features, identifiable in the system in an obviously relevant amount. (b) The historic superimposition of a common law framework to a pre-existing civil law environment in critical areas, especially in relation to the role, structure and functioning of the judiciary and to the value of case law, but also more generally in relation with the areas of public law, criminal law, economic law, and institutional architecture. The older civil law rules stand, more or less, for the regulation of private matters. (c) An element of a subjective nature, (10) described as the perception and/or feeling of lawyers and scholars of the relevant jurisdiction of their belonging to a "mixed" system. This subjective test partially overlaps with what Patrick Glenn calls a legal "tradition": (11) a combination of historical facts and subjective readings, feelings and visions of the relevant people, transforming brute historical events into a cultural heritage and a factor of identity, (12) which in turn contributes, objectively, to "form" (13) a legal system and shape its character and "style". (14)

    2. Application of Palmer's Grid to the Case of the Chinese SARs

      Palmer's theory (and/or its application to a wider, different environment from its original one) may satisfy some and, perhaps, dissatisfy others. Palmer himself seems very active in testing and expanding the boundaries of his device. (15) Still, it is probably the only firmly established analytical instrument so far--usable until proven wrong or superseded by a...

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