Hong Kong Special Administrative Region and Positivism

Hong Kong exceptional Administrative office and PositivismCritical Essay on Positivism with Special root to theHong Kong Special Administrative RegionS1IntroductionTheS2 word positive, as employ in jurisprudence, is derived from the Latin word positum, meaning having been laid down. Its induction consists in the pedigree dissertation, separability thesis and the courtesy thesisS3.The positive faithfulness indoctrinate has its main pillars, such as Jeremy Bentham, John Austin, H.L.A hart, Hans Kelson. This essay will take in their visual senses with reference to the Hong Kong Special Administrative Region (HKSARS4).1. The Pedigree Thesis each society has some kind of kindly order, some way of crisscross and encouraging approved behaviour, deterring disapproved behaviour, and resolving disputes. The pedigree thesis asserts that heavy grimness is a function of certain social factsS5.1.1 Bentham and AustinAccording to Bentham and Austin1S6, sub judice philosophy is a p henomenon of societies with a sovereign a determinate person or group who puddle supreme and absolute de facto major top executive. The police forces in that society be a subset of the sovereigns commands general orders that apply to classes of actions and people and that argon backed up by bane of force or sanctionS7.. This imperatival surmise is positivist, for it identifies the existence of legal bodys with patterns of command and obedience that bum be ascertained without considering whether the sovereign has a moral right to influence or whether his commands are meritorious.Imperatival theory has twain different distinctive blows, monism and reductivism. The mMonism the theory represents tout ensemble practice of rightfulnesss as having a single form, imposing obligations on their subjects, though non on the sovereign himself. The minimal art the theory on the other hand maintains that the prescriptive language utilize in describing and stating the justness talk of potential, rights, obligations, and so on keister all be analyszedS8 without remainder in non- normative terms, ultimately as concatenations of statements about power and obedienceS9.Imperatival theory does non accord with the complexities of the present time. fFor example, in Hong Kong (HK), gibe to the first-year rectitude bind 1,2S10, HKSAR is an inalienable vocalisation of the Peoples Re man of chinaware (PRC). Under the system of One Country, Two System, sovereignty of Hong Kong Special Administrative Region (HKSAR) belongs to PRC. PRC delegates power (executive, legislative and final adjudication power) to HK by dint of elemental Law (commands). The elemental Law has the feature of cosmos reductivist, as it is concatenationsS11 of statements about power and obedience. staple Law dodgeicle 22 states that Basic Law is non only binding on HK, al one and only(a) also binding on PRCs institutions (sovereign),3, in that locationfore it does non haves t he feature of monisticS12. In addition, the law is non backed up by threat of force or sanction from PRC. HK citizens agree with the Basic Law because 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 knowledge of law broad from metaphysical elements (hence a pure theory). In addition, Kelsen retains the imperativalists monism but abandons their reductivismS14.On Kelsens determine, law is characteriszed by a basic form and basic norm. The form of every law is that of a conditional order, direct 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 chthonian certain conditions. In HK, if Cap 210 Theft Ordinance s24 creates a n offence of discourse stolen high-priceds which has penalties attached to it and the defendant handles stolen goods then the gauge ought to apply the appropriate penaltyS15. For Kelsen, as opposed to Austin, this is not just a shift of the official being downstairs a business, but also having power or discretion in such situation. What we ordinarily regard as the legal 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 consultred on it by the legislative assembly, which confers those powers in a manner provided by the constitution, which wasS18 its elf created in a way provided by an previous constitution. The very first constitutions authority, says Kelsen, is presupposed.. Kelsens will view is that an HK Ordinance is legally valid because 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 in the beginning 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 principally presupposed, its quality in the validation of the other norms in the hierarchy abide be fraught with obscurities.1.3 H.L.A. stagIf 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 effectations of legal systems, but rejects Kelsens view of authority in favour of an empirical one10. For Hart, the authority of law is social. The ultimate measuring stick of validity in a legal system is a social come up that exists only because it is actually practiced. Hart makes use of both types of rule primary and thirdhandS23. Primary rules are those of obligation, which state what essential or mustiness not be make. tThese are duty-imposing rules. Secondary rules are those of recognition, change over and adjudication. tThey are power-conferring rules designed to supplement the primary rules. The secondary rules affect the mental process 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 ch ange, adjudication and recognition.It is an important feature of Harts circular that the rule of recognition is an official custom, and not a exemplification ineluctably shared by the broader community. If the imperativalists picture of the political system was pyramidal power, Harts is to a greater extent like WebersS24 rational bureaucracy.In HK, by looking at the legislation, we can identify m any(prenominal) ordinances as primary rules. Examples are to be found from Cap 200 Crimes Ordinance and Cap 210 Theft Ordinance, etc. HartS25 tells us that these primary rules are directed concerning the free use of violence, theft and pretence 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 a s 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 depicted object Peoples Congress (NPC) authoriszes the HKSAR to make merry legislative 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 nutrition 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 twain types of the rules of changePrivate 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 other 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 process 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 enjoy independent judicial power, including that of final adjudication. In addition, Article 84 of the Basic Law confers the courts to adju dicate incasesS29.2. The Separability Thesis Positivists insist on the importance of the judicial separation of law from morality. This thesis comprising the foundation of legal positivism is the separability thesis. This abstract prep can be interpreted in a number of ways. tThe most common view is that the separability thesis is interpreted as making 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 requite 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 leave a trace 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 Faber12S 33 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 define 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 practical 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 cake of Cruelty to Animals (Amendment) Bill 2006 at the Bills Committee and the judicial review on the age of sexual consent for homosexuals, moral runawayed an important role on legal validity.3. The Discretion Thesis Discretion thesis is the view that judges make new law in deciding cases not fa lling 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 regulated 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 tap of utmost Appeal (CFA) has to decide whether s7 of the Nationa l Flag Ordinance and s7 of the regional Flag Ordinance which criminalise the desecration of the national 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 trade protection 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 common 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 why 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 no rm is unclear. Also, in HK, moral did play an important role on legal validity. Positivism theory can hardly fully explain the current HK legal system.Kelsen, Hans (1945). General scheme 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 segment of the Central Peoples Government and no province, autonomous region, or municipality directly under the Central Govt. may interfere in the personal matters 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 specific 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 sitting of the Fifth National Peoples Congress on Dec 4, 1982 as Chinas Constitution.10 lawful Positivism, First published Fri 3 Jan, 2003, Stanford Encyclopedia of Philosophy.11 Hart, H.L.A., The Concept of Law, Second chance variable (Oxford Clarendon Press, 1994) pp. 181-82.12 Faber, Klaus, Farewell to Legal Positivism The Separation Thesis Unraveling, in George, Robert P., The impropriety of Law Essays on Legal Positivism (Oxford Clarendon Pre ss, 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 content reaching beyond the law for some other sort of standard to guide 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 cite your source for everything you say like this. The fool mu st have the option of checking facts.S4A longer introduction required, elaborate more on what positivism is and what you intend to argue 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 though.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 meagerly the wrong context, perhaps sentence structure needs work.S12Again wrong word, in all likelihood monasticism.S13Good to use the slope 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 source.S33Good, you cite your source here but not elsewhereS34Good.S35Reference.S36Good.