Hong Kong Legal System PDF 2024

Hong Kong Legal System By Dr. Martin Lai (2024)  Topic 2 Common Law vs Civil Law  Diff. meaning of “Common Law” John Forrest Dillon (1831 – 1914) from the U.S. “The expression, "the common law," is used in various senses: (a) sometimes in distinction from statute law; (b) s...

Hong Kong Legal System By Dr. Martin Lai (2024)  Topic 2 Common Law vs Civil Law  Diff. meaning of “Common Law” John Forrest Dillon (1831 – 1914) from the U.S. “The expression, "the common law," is used in various senses: (a) sometimes in distinction from statute law; (b) sometimes in distinction from equity law; (c) sometimes in distinction from the Roman or civil law […]” common Law civil Law common law Statute law common law equity  Importance of Common Law John Forrest Dillon (1831 – 1914) from the U.S. “I deal with the fact as it exists, which is that the common law is the basis of the laws of every state and territory of the union, with comparatively unimportant and gradually waning exceptions. And a most fortunate circumstance it is, that, divided as our territory is into so many states, each supreme within the limits of its power, a common and uniform general system of jurisprudence underlies and pervades them all; and this quite aside from the excellences of that system, concerning which I shall presently speak. My present point is this: That the mere fact that one and the same system of jurisprudence exists in all of the states, is of itself of vast importance, since it is a most powerful agency in promoting commercial, social, and intellectual intercourse, and in cementing the national unity” Map of Different Legal Systems Code of Hammurabi One of the oldest and most complete set of codified laws Proclaimed by Hammurabi, the 6th king in the Babylonian dynasty  King Hammurabi reigned from 1792 – 1750 B.C.  Ruled in central Mesopotamia (present- day Iraq) King Hammurabi Source: Realm of History Code of Hammurabi Cover different areas of law If someone does X, then Y will happen  “If a man knocks out the teeth of his equal, his teeth shall be knocked out.” Quite harsh  “If any one is committing a robbery and is caught, then he shall be put to death.” Seems to be case law Source: Realm of History  The Origin of Civil Law jus civile – the civil law of the Roman Republic and the Roman Empire Politics of ancient Rome Western AD 395 – 476 Roman Roman Republic Roman Empire Kingdom 509 – 27 BC 27 BC – AD 395 753 – 509 BC Eastern AD 395 – 1453  Roman Republic Roman Republic (509 B.C. – 27 B.C.) About 455 B.C., appointed a commission of 10 men (Decemviri) to draft a code of law binding on all Romans – Aimed to better represent the interests of lower-ranked people and reduce the undue influence on Roman law of the higher-ranked people – Enforced by two magistrates – A compilation of numerous statues  filled ten bronze tablets Lower-ranked Romans unimpressed with the result  appointed a second commission of 10 men in 450 B.C.  added two bronze tablets. 10 + 2 bronze tablets = The Twelve Tables (450 B.C.) – To resolve disputes between higher-ranked and lower-ranked Romans A new approach to law: – Written laws passed by government – All citizens might be treated equally before these laws  Roman Republic By the end of Roman Republic (27 B.C.) Jurists: – Upper classes – Interested in the law – Not government officials; not judges – Provided counsel about the law as a public service Free of charge (~pro bono service) Gain influence Gain popularity – Mean a “legal expert” – Gained prominence within the legal system  Roman Empire Transited from Roman Republic to Roman Empire Expansion of Roman Empire: – more trade & people – created the need for a private law regime – the rise of Roman jurists Civil law = (Roman) citizen law  Two types of civil judges Judiciary was nonprofessional – Praetor (i.e. Magistrate) Elected for a 1-year term Conduct pretrial hearing  define the issues of the controversy Praetor’s edicts  Annual public proclamation to state the principles by which the praetor intended to administer his office  the primary source of private law  Control remedies available to litigants – Judex (i.e. judge for the trial) Selected on an ad hoc basis by the litigants for the purpose of presiding over their trial Given authority by the praetor to decide only that case Both praetor and judex turned to the jurists for advice  Functions of jurists Jurists: – Assisted the praetor in drafting the Edict Shaped the law Important for the development of Jus gentium (i.e., Equity law of Rome) – Applying to cases between foreigners and Roman citizen – Prepared responsa for praetors and judices A document Responses to specific questions of law Important for the development of a comprehensive jurisprudence  Value of judges’ decisions Lack of regard for the value of decisions in individual cases: – Decided by the praetor Appointed for 1 year Played a limited role His decisions in particular cases were insignificant – Decided by the judex Appointed for only a particular case No continuity in litigation Could not develop legal principles through resolving various cases A split in the judicial process: Praetor for pretrial; judex for trial No continuity in litigation Could not develop legal principles through resolving various cases Elevated the importance of the jurists and their written opinions  Treatise Praetors got lazy: – At first: issue a new Edict annually – Later: simply add some changes and additions to Edict issued last year Very lengthy Uneven texture and content – Such practice ended around the reign of Emperor Hadrian (117-138 AD) Jurists turned to write treatise (i.e., scholarly legal publication)  Patented jurists Certain jurists patented by Caesar Augustus Singled out for recognition Patented jurists’ opinions more influential Acquired the power of rule making Patented jurists’ opinions binding on the emperor Assumed the role of imperial advisers  Institutes Gaius, a jurist of the Roman Empire – Published the Institutes in the 2nd century AD. – An extensive collection of legal principles and rules of private law – Analogized to modern “hornbooks” – Contributed significantly to the evolution of written law of Rome  Institutes Excerpts from the Institutes:  Corpus Juris Civilis (“Body of Civil Law”) There were many other prolific jurists between 1st century BC and middle of 3rd century AD – E.g., Ulpian, Papinian and Paul AD 529 – 534: – Justinian, Eastern emperor – Ordered to reduce these manifold texts to systematic codification – Corpus Juris Civilis, comprising the: Gaius’s Institutes Digest (writings of classical jurists) Codex (early imperial legislation) Novellae (Justinian’s legislation) Corpus Juris Civilis became the essential building block for the civil law system  Europe after Rome Over 600 years after the fall of Western Roman Empire Justinian’s codification remained in force in parts of Western Europe A revival in the study of Roman Law University of Bologna - 1st university established in Western Europe (~AD 1088) Taught both roman law and canon law – Fun fact: Bachelor of Laws (LLB) ; Master of Laws (LLM) Roman law was re-interpreted and modified to suit the requirements of the time  Europe after Rome 18th century: called for more concise codes E.g. Napoleonic Code enacted in France in 1804 – Exported to colonies E.g. Bürgerliches Gesetzbuch (BGB) (i.e., Civil Code) enacted in Germany in 1900 Influenced many countries (e.g., China, Japan, Greece)  Common Law vs Civil Law Common Law: – E.g., England, former British colonies, the United States, and most of Canada French Civil Law: – E.g., Belgium and Luxembourg, the Canadian province of Quebec, Italy, Spain, and their former colonies German Civil Law: – E.g., Austria, Switzerland, Portugal, Greece, Turkey, Japan, South Korea, and Taiwan Scandinavian Civil Law: – E.g., Sweden, Denmark, Norway, and Iceland Chinese (Civil) Law: – Civil law + socialist law  Common Law vs Civil Law Difference 1: Codification Common law is generally uncodified – Has scattered statues – No comprehensive compilation of legal rules – Relies on precedents – Documented in yearbooks and reports Civil law is codified – Has comprehensive, continuously updated legal codes – Substantive law: What acts are illegal – Procedural law: How to determine whether a particular action constitutes an illegal act – Penal law: What penalties  Common Law vs Civil Law Difference 2: Building blocks of common law are cases – Focus on what judges say – More pragmatic – Less theoretical Building blocks of civil law are texts – Focus on what the codes declare – Less pragmatic – More theoretical  Common Law vs Civil Law Difference 3: Court decisions Common law  Doctrine of Precedent – Cases with substantially similar facts – Higher courts’ decisions binding on lower courts – Constancy, predictability and objectivity Civil law  No Doctrine of Precedent – Judicial decisions did not accord importance Corpus Juris Civilis: “ “decisions should be rendered in accordance, not with examples, but with the law”. – In practice?  Common Law vs Civil Law Difference 4: Role of judges & use of jury Common law: – Adversarial system – Judges act like “moderator” – Jury decide facts of the case – Judge determines the law – Judges have an enormous role in shaping the (common) law Civil law: – Judges act like “investigators” – Judges establish the facts of the case and apply the law – No jury – Judge’s decision is less important in shaping the (civil) law  Common Law vs Civil Law Difference 5: Role of lawyers Common law: – Judges serve as a moderator – Need to present to judge, and sometimes the jury – Examine witnesses – Judges have greater flexibility on deciding remedy – Common law lawyers play a central role in litigation Civil law: – Judges act as investigators – Judges take the lead in proceedings (e.g. bring charges, establish fact through witness examination) – Still represent the interests of their clients – Oral argument and in-court presentations less important – Civil lawyers play a less central role in litigation  Common Law vs Civil Law Difference 6: Role of legal scholarships Common law: – Case law – Statutes Civil law: – Statutes Not just Common Law and Civil Law  Religious Law (e.g., Muslim Law) Islam – orginated in Saudi Arabia in 7th century CE Muslim is an adherent of Islam The 2nd largest religion in the world Muslim Law / Islamic Law: known to be originated from the divine (i.e., not man-made) Submission to the will of the one god, Allah Traditional Islamic law: Sharia (i.e., the way) – Originated from Allah – Derived from Prophet Mohammed’s principles The holy book of Islam: Quran – Prohibit consumption of pork – “He has only forbidden you what dies of itself, and blood, and flesh of swine, and that over which any other (name) than (that of) Allah has been invoked; but whoever is driven to necessity, not desiring, nor exceeding the limit, no sin shall be upon him; surely Allah is Forgiving, Merciful.” — Qurʼan, Sura 2 (Al-Baqara), ayat 173  Customary Law Customs, with a degree of legality Beyond mere usage or habit Still play an important role, especially in mixed legal systems Some customary laws discriminate (e.g. gives women less power than men) Example (Customary inheritance law): – The oldest son inherits the control of the family property, and makes the decisions about the property. The wife does not inherit the family property, although she may use it. E.g., in several African countries, India, mainland China, and Hong Kong.  Mixed Legal System E.g., South Africa – Dutch jurists drew on Roman Law in their writing  Roman-Dutch Law – Roman-Dutch Law exported to the Cape Colony in 17th and 18th centuries – Arrival of English common law in the 19th century – Mixed system: Roman-Dutch Law + English common law “Like a jewel in brooch, the Roman-Dutch law in South Africa today glitters in a setting that was made in England. Even if it were true (which is not) that the whole of South African private law and criminal law had remained pure Roman-Dutch law, the South African legal system as a whole would still be a hybrid one, in which civil and common law elements jostle with each other”  References Stefan Lo et al., The Hong Kong Legal System (2nd ed. 2020) Raymond Wachs, Law: A Very Short Introduction (2008)