scholarly journals Developing an Index of the Rule of Law: Sharing the Experience of Hong Kong

2007 ◽  
Vol 2 ◽  
pp. 1-19 ◽  
Author(s):  
Benny Y.T. Tai

AbstractThe Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

2018 ◽  
Vol 28 (5) ◽  
pp. 573-599
Author(s):  
Alex Batesmith ◽  
Jake Stevens

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.


2019 ◽  
Vol 15 (2) ◽  
pp. 178-196
Author(s):  
Yan-Ho Lai

Purpose Despite the preservation of “One Country, Two Systems” for 50 years under the Sino-British Joint Declaration and Basic Law, changes are palpable due to the emergence of a real contest between liberal and pro-China actors in the legal profession and the legal environment in Hong Kong. After celebrating the twentieth anniversary of Hong Kong’s sovereignty transfer from Britain to China, it is valuable to study how the sovereign power influence the rule of law in its semiautonomous city by non-legal measures. This paper aims to offer a preliminary research on China’s political economic strategy, which is regarded as the “China factor”, in the legal system of Hong Kong, and its political, economic and legal-cultural impacts on the rule of law. Design/methodology/approach This paper argues that China exerts its influence over the legal system of Hong Kong in four domains, including ideology, political elections, legal organization and cross-border political economy. Based on media research and content analysis over published materials of various legal associations and institutions, it is found that China attempts to consolidate its control in Hong Kong by producing alternative legal ideology and discourse of the rule of law and by co-opting the legal profession under China’s united front strategy. Findings While there are liberal lawyers and legal scholars vocally engaging in defense of human rights and the rule of law in Hong Kong, a network of legal profession promoting socialist and authoritarian legal values has become prominent. Hong Kong’s legal culture will continue to be shaped in accordance with authoritarian characteristics and will adversely affect developing the rule of law in this international city. Originality/value This paper contributes to the study of China’s influence over the legal profession of Hong Kong and in general Hong Kong’s jurisdiction by offering an example to the international community that contributes towards understanding how China adopts different strategies to expand political significance beyond its border.


2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.


Author(s):  
Kathryn Hendley

This book has investigated whether the existence of telephone law rendered law irrelevant for Russians in their everyday lives. It has shown that Russians are not as nihilistic as usually assumed, but neither are they free of skepticism when it comes to their legal system. Their attitudes and behavior vary depending on the situation. Their primary reservation about using the courts is not concern over telephone law, but dread of the inevitable red tape and emotional turmoil that accompany litigation. This concluding chapter returns to the theoretical dilemma of how we should conceptualize legal systems like that of Russia in which law can—but does not always—matter. In particular, it considers how a dualistic legal system, in which politicized law exists side by side with law that is enforced and obeyed based on its written terms, should be evaluated in terms of the rule of law. It argues that a rethinking of the very concept of the “rule of law” in Russia is needed.


Author(s):  
Sara Forsdyke

This chapter provides a definition of the contested concept of the rule of law and suggests that it consists of three components: legal supremacy, legal equality and legal certainty. The chapter further argues that the classical Athenian legal system valued all three components of this definition of the rule of law, but also sought to balance the good of legal certainty against a more context specific assessment of equity in particular cases. In making this compromise, the chapter suggests, the Athenians anticipated a tension that continues to exist even in modern legal systems.


2015 ◽  
Vol 1 (2) ◽  
pp. 39
Author(s):  
Samedin Mehmeti

The state apparatus represents one of the fundamental elements of the development of contemporary society. While the right and law represents a basic understanding of the existence of the state power that performs in order to preserve a balance between the action which is accepted by society and other behaviors that by law are prohibited. The state actions principally are based on the rule of law, namely the legal system accepted or elected by people. Studying different legal systems, it shows that there are similarities more than the differences between them. Despite very different legal cultures, processing methods and institutions, different legal systems exhibit convergence in the treatment of different legal issues. As a result of these processes, many of the differences between common law and civil law now look more like nuances rather than as major differences. The differences are mostly pronounced in the styles of using legal argument, methodology, content and legal norms etc. Various legal systems, using different tools, aimed at the same purpose, and similar results are often taken from different justifications. Often it happens in practice that, despite the use of diverse tools and methods, they arrive at the same solutions or similar ones and it certainly that should not be surprising. So it can rightly be concluded that despite many changes, legal systems aim at achieving the same objective. While generally the target of the state is always and in any system the implementation of norms and rules set in advance, what the contemporary world tends to be considered as respect for the rule of law. In general, the objective of the state authorities in every system is the implementation of the norms and rules set in advance, that concept in the contemporary world tends to be considered as respect for the rule of law. Since Kosovo was part of the former Yugoslav federation and practically until the end of the war of 1999, in the absence of state sovereignty and subjectivity, people of Kosovo were not in a position to choose, like other sovereign nations which legal system will be applied on their lives. Without the will of the citizens, in Kosovo was applied a type of Continental legal system, with certain specific elements that were mostly common in other countries of former Eastern European Communist bloc. In the first years after liberation, until new legislation was passed through the legislative system, it was continued with the older system, through some minor changes. While at a later stage after the adoption of the new legislation, was introduced a large scale reform to the exciting system through the application of the combination of elements of Anglo-Saxon system, this reform which is to this day is in process as well.


2015 ◽  
Vol 2 (1) ◽  
pp. 39
Author(s):  
Samedin Mehmeti

The state apparatus represents one of the fundamental elements of the development of contemporary society. While the right and law represents a basic understanding of the existence of the state power that performs in order to preserve a balance between the action which is accepted by society and other behaviors that by law are prohibited. The state actions principally are based on the rule of law, namely the legal system accepted or elected by people. Studying different legal systems, it shows that there are similarities more than the differences between them. Despite very different legal cultures, processing methods and institutions, different legal systems exhibit convergence in the treatment of different legal issues. As a result of these processes, many of the differences between common law and civil law now look more like nuances rather than as major differences. The differences are mostly pronounced in the styles of using legal argument, methodology, content and legal norms etc. Various legal systems, using different tools, aimed at the same purpose, and similar results are often taken from different justifications. Often it happens in practice that, despite the use of diverse tools and methods, they arrive at the same solutions or similar ones and it certainly that should not be surprising. So it can rightly be concluded that despite many changes, legal systems aim at achieving the same objective. While generally the target of the state is always and in any system the implementation of norms and rules set in advance, what the contemporary world tends to be considered as respect for the rule of law. In general, the objective of the state authorities in every system is the implementation of the norms and rules set in advance, that concept in the contemporary world tends to be considered as respect for the rule of law. Since Kosovo was part of the former Yugoslav federation and practically until the end of the war of 1999, in the absence of state sovereignty and subjectivity, people of Kosovo were not in a position to choose, like other sovereign nations which legal system will be applied on their lives. Without the will of the citizens, in Kosovo was applied a type of Continental legal system, with certain specific elements that were mostly common in other countries of former Eastern European Communist bloc. In the first years after liberation, until new legislation was passed through the legislative system, it was continued with the older system, through some minor changes. While at a later stage after the adoption of the new legislation, was introduced a large scale reform to the exciting system through the application of the combination of elements of Anglo-Saxon system, this reform which is to this day is in process as well.


2019 ◽  
Vol 3 (1) ◽  
pp. 1
Author(s):  
Achmad Hariri

Pancasila legal system in Indonesia does not seem to have found a final formulation, it is still abstracted from the dominant legal system, namely civil law / rechstaat. In the 1945 Constitution it is clear that Indonesia promulgates as a legal state, although there is no implicit explanation of the legal system which is adopted (rechstaat, the rule of law or the Pancasila legal system), on the other hand Pancasila becomes the ideology and basis of the state, therefore there needs to be a formulation of the Indonesian legal system by deconstructing (reading; dismantling) the Pancasila ideology, so that the Pancasila is not only an ideology, but also as a legal system adopted in Indonesia. Pancasila can be placed in a prismatic postulate, where Pancasila is placed as a counterweight between existing legal systems, the Pancasila legal system can be used as an alternative legal system originating from noble values, legal systems relevant to plural societies are legal pluralism, namely common law configurations who uphold substantive justice, civil law that knows procedural justice, and the Pancasila legal system that upholds social justice. so that the substance of prismatic Pancasila law can be realized, namely justice as its purpose.


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