Common law system and ideology

Influence of external forces on legal system, they interact in the law making processes and affect what is morally right or wrong, law is not the only tool responsible for maintain social order, people have private life and other systems (social control, culture, religions…) to guide people’s life and behaviours LAW: Certainty, predictability, there should be an authorities to refer to, neutrality, but law is not necessarily represent a neutral stance in some issues, it represent some hidden values and choices about morality, politics, social characteristics…

W’s case: religion – recognize her = recognize same sex marriage We respect the law that represents us. But in HK, the legal system is of little representation although it seems to be representing different parties. Law as an institution to uphold values we share as a society, law has a moral, cultural, religious content, because of historical reasons. Private sphere VS Public Sphere, should law interfere private sphere? Morality of obeying bad law: we may obey law even though we do not agree to them because the fear of sanction, so it requires strict obedience, but they should not violate their morality anyway.

Edward Snowden, he violates the law at personal cost to serve the public good, but he adheres to values that should be respected How can we change and reform the law? -Go to the legislature -Apply for judicial review, because the law in its present stage is not perfect, like W apply for judicial review to argue for broader definition of women Batman: Vigilante or Criminal? Everyone should be under protection of the law, if there is a vigilante who takes the law into his own hand, there is not a check of balance of power, he may abuse the power of law enforcement which he is not entitled to Dexter Morgan:

Identify the murderers, catch them and kill them, he never kill innocents and make sure there’s enough evidence before killing, he thinks he’s saving future lives by killing the murderers Justice is administered in response to your actions, it is not accurate for anyone outside the legal system to administer justice because we don’t know what kind of punishment he may have on the injustice, we value procedural justice, a separation of power between the legislature who produces the law and the legislator who executes the law.

The law can never fulfill the interests of everyone, the minority’s interests are always undermined as the law only reflects the needs and interest of the majority A judicial review of right of abode in HK Law Reform Commission, they make recommendations and send to the Legco, but not much are revised. Because the Legco may only take into account their personal interests and avoid to consider law reform which may affect their re-election. RULE OF LAW: Objectives of study Rule of Law (certain, predictable) VS Rule of Man (arbitrary) Rule of Law VS Rule by Law 1.

Formal / Procedural – follow/apply legal procedural rules in decision making 2. Substantive- decision making is accompanied with values or virtues, reflecting sense of just or fair outcome The two go hand in hand to bring about justice Is good government one where the rulers are good because they govern in accordance with established laws, or one where the laws are good because the rulers are wise? Wise rulers may have personal characteristics, good laws may deliver just outcomes because of procedural justice, but the law may not predict all circumstances, it may require a wise ruler to adjust according to the situation WE WANT BOTH!

Good LAWS + WISE GOVT Plato Law as a science or a scientific tool Using the tool, would be able to govern well But legislative science – all written law only Presupposes Good Laws Aristotle Respect for the law Objective: Free of personal moral or religious influences Militate against the indiscrimination of the law, need people to help fill in the justice gaps The age of constitutionalism: The need to check the balance of power against the highest law Constitution Written or unwritten How a country should be run Allocate powers of governing bodies.

Accounts for power of each branch and their interrelationship Limit of power of government by law This led to Separation of Powers Judiciary: Ensures government acts within confines of law Provides remedies for the aggrieved when government transgresses the law Dicey’s Rule of law: (? Too formalistic) Equality before the law – Equal application of the law Problem: any unjust and unbalance of power? Same chance of succeeding equally? Apply of power by prescribed manner Absence of arbitrating power – anything that does not come from law is arbitrary Supremacy of the law – against arbitrary exercise of power Eg.

Writ of Habeas Corpus “worth a 100 Bills of Rights” Dicey Problem? Modern day legislation encroaches upon fundamental rights, not just daners of ecercise of arbitrary power Highlights significance of Constitution What about the need for flexibility / discretion? Control and supervises the administrative power -> lead to judicial review Joseph Raz’s Rul of Law See RL as a means to control exercise of discretion Recognises need for government of Men, as well as Laws, ie, need the ruler to exercise reason and discretion and to follow the law in order to arrice at a just decision.

RL should therefore guide exercise of discretion Also saw RL as a negating principle, acting to minimize arbitrary exercise of power Broader idea of Rule of Law Law must be capable of guiding individual behavior Prospective rather than retrospective – predictability and certainty Stable, open, clear laws Clear rules and procedures for enactment of law Independence of judiciary to guarantee just decision without influence Natural justice rules: right to be heard, open and fair hearing to all Power of judicial review Courts should be easily accessible Roberto Unger’s Rule of Law.

Legal autonomy substantice: the law as self referential, an end in itself, not mere means to end Institutional: legal institutions separate from other state institions Max Weber’s (economic context) Goal: to examine and explain strauture of western capitalist spciety and the role of law in it Law: formally rational system 20th century: free market > planned economy, increased state activity in economic sphere > altered the form and function of the law Rule of Law Government according to the law Government conduct subject to the law Procedural and substantive rule of law are both required.

No bribes, no corruption and people abide by the law > people will have confidence in the system ( micro ) > achieve macro order of the system Separation of powers The 3 powers should remain separate and independent of each other Checks and balances to guard against abuse Virtues that are promoted in Rule of Law: Fairness, equality… The Rule of Law Supremacy of the Law Government by Law Reviewability of Executive Action Non-Retrospective Application of Law Certainty Equality before the Law Exercise of Discretion Substantive Equality Constitutional Guarantees Flexibility Rule of Law – a political ideology?