Book Review: The Changing Legal Orders in Hong Kong and Mainland China: Essays on “One Country, Tw

The Chinese Journal of Comparative Law, (2021) pp. 1 20 https://doi.org/10.1093/cjcl/cxab014

Jaakko Husa*

Abstract This essay reviews Albert Chen’s ‘The Changing Legal Orders in Hong Kong and Mainland China: Essays on One Country, Two Systems’ (2021). The aim is to address the most significant points raised by the author of the book and provide a readable and critical synthesis of Chen’s key arguments. The focus is on the background of the tension points between China and Hong Kong that are generated by the One Country, Two Systems policy. The article ends with discussion on the book’s contribution and the possible future of Hong Kong’s common law heritage as a part of China.

In search of balance Hong Kong’s law and its legal culture, especially constitutional law-related dimensions, have been much debated over the years since 1997, not only in the region itself but also in Mainland China and foreign countries. However, global interest has even grown after the 2019 demonstrations, coupled with civil unrest and the subsequent Hong Kong National Security Law (NSL) that stepped into force in July 2020.1 Against this backdrop of topicality, Albert Chen’s collected volume of essays entitled ‘One Country, Two Systems’ is a timely book. It makes the contemporary debates and tensions of this decade understandable by providing detailed background information and an insight of someone who has *

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Jaakko Husa, Professor in Law and Globalization, Faculty of Law, University of Helsinki, Finland.

Email: Jaakko.husa@helsinki.fi Review of The Changing Legal Orders in Hong Kong and Mainland China: Essays on ‘One Country, Two Systems’ by Albert H.Y. Chen (City University of Hong Kong, 2021), xviii þ 420 pp.

Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, GN (E) 72 of 2020. Analysing the process that led to the National Security Law (NSL), see Albert HY Chen, The Changing Legal Orders in Hong Kong and Mainland China: Essays on ‘One Country, Two Systems’ (City University of Hong Kong 2021) 388 91 (‘can be regarded as a major legislative step by the NCP to supplement the provisions of the Basic Law in response to changing circumstances in the HKSAR which were not anticipated when the Basic Law was made in 1990’).

C The Author(s) (2021). Published by Oxford University Press. All rights reserved.

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For permissions, please email: journals.permissions@oup.com

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Constitutional Biography of Hong Kong and Ambiguities of One Country, Two Systems Policy

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Of the Committee, see Eric C Ip, ‘Prototype Constitutional Supervision in China: The Lessons of the Hong Kong Basic Law Committee’ (2015) 10 Asian J Comp L 323.

See Christopher Munn, A Special Standing in the World: The Faculty of Law at The University of Hong Kong, 1969 2019 (Hong Kong University Press 2019). Faculty, ‘staff and alumni contributed widely to the transformation of Hong Kong law from its origins as a sluggish backwater of English law into a flourishing field of activity, where fundamental rights, freedoms and obligations are tested almost daily against the Basic Law—the centrepiece of “one country, two systems” under which Hong Kong maintains its common law system as a special administrative region (SAR) of the People’s Republic of China (PRC)’ (xi).

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been and still is a seer, actor, and knower. To an outside observer, the book provides an inside view to roots in legal history and the political landscape of Hong Kong.

Chen is not only a prolific scholar with extensive knowledge of Hong Kong, Chinese, and comparative Asian constitutional law but also someone who has been taking part in the events since 1997 as a committee member of the Hong Kong Basic Law Committee under China’s National People’s Congress Standing Committee.2 In other words, the book is penned by someone who not only has relevant things to say about the law both of Hong Kong and Mainland China but who also perceives the intricacies of ‘One Country, Two Systems’ from an internal point of view. Chen has had a long career at the University of Hong Kong, where he started as a lecturer in 1984. Moreover, the story of the Faculty of Law at Hong Kong University (established in 1969) is also the history of the law in modern Hong Kong.3 With this in mind, the fact that Chen has travelled with this institution for more than 40 years makes his views notably valuable not only in Hong Kong but also among foreign lawyers, especially comparative legal scholars. On the other side of the coin, an insider’s view may not make it possible to see things that may be evident to an outsider.

The book contains three basic themes that concern the One Country, Two Systems practice, the change of Mainland China’s law and its legal tradition, and constitutionalism in East Asia. All of these themes are discussed and analysed in the book. In the main, the chapters reflect the intellectual character of the author in the sense that his preferred ‘balanced approach’ is applied throughout the book. This means, in practice, that the discussion and argumentation of the book avoids taking an extreme stance on any of the issues that are dealt with.

This feature has consequences, as some scholars might claim that Chen is sitting on the fence without being able to decide on whose side he prefers to be on.

On the one hand, pro-Mainland scholars might suggest that Chen is being over-cautious and gives way too much to unpatriotic common law arguments based on ideas promoted by some in Hong Kong. On the other hand, those who view the growing Mainland impact with deeply embedded and common lawbased suspicion feel that Chen gives way too much to Beijing’s pressure on Hong Kong’s own legal culture. Both of these views appear unfair in the sense that Chen’s analysis seems genuinely driven by intellectual rather than political ambitions. For an outsider reading the book, this balanced approach is a welcome feature as it means that there is no ‘preaching’ in the book. Be that as it may, it would seem that Chen’s views are based on accepting the political reality

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Squaring the circle—one country, two systems The One Country, Two Systems approach has two dimensions. First, it is a fundamental State policy of the PRC concerning the arrangements for Hong Kong’s return to China from the United Kingdom. Second, it is an important legal model embedded in the Basic Law of Hong Kong.7 The arrangement was created under the governance of Deng Xiaoping with a goal of peaceful reunification of China by resolving the sovereignty and governance issues of Hong Kong, Macao, and

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On the distinction between thin and thick notions of the rule of law, see eg Peter Rijpkema, ‘The Rule of Law beyond Thick and Thin’ (2013) 32 Law & Philosophy 793.

Chen (n 1) xii.

Ibid xi.

The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990, Promulgated by Order No. 26 of the President of the People’s Republic of China on 4 April 1990, effective as of 1 July 1997 <http:// www. basiclaw. gov. hk/ pda/ en/ basiclawtext/ cover. html> accessed 20 April 2021.

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of the People’s Republic of China (PRC), which is not the same thing as endorsing that reality, though. Nevertheless, for instance, the assumed approach seems to be inclined to support a thin notion of the rule of law.4 In view of the above, the scholarly identity of Chen is not to take strong sides but, rather, to try to find a harmonious balance. The search for balance expands to relations between Hong Kong and Mainland China as well as to views on the progress made in post-Mao China in the area of legal reforms. This involves appreciating the value of Chinese legal modernization and the transformation from traditional to modern without leaving weaknesses and deficiencies out of the analysis. As far as this author sees it, the search for balance in legal scholarship is resting not on opportunism or intellectual timidity but, rather, on a more overarching idea, according to which there are reasons for ‘a certain degree of cautious optimism regarding the globalisation of constitutional values and the possibility of progress in human history’.5 The optimistic basic tenor is the underlying leitmotif of the book. To that end, there is room for believing that ‘there is much which China can and should learn from Western philosophies of liberalism, Rule of Law, human rights, constitutionalism, and civil society’.6 In this review article, special focus is on constitutional and comparative law points of view. Chen’s key ideas on One Country, Two Systems, Hong Kong law, and Chinese law are identified, discussed, and assessed. The aim of this article is to address the most significant points raised by the author of the book and, by doing so, to provide a readable synthesis of Chen’s views and of those of the present author. The focus is on the background of the tension between China and Hong Kong that are generated by the One Country, Two Systems model. The article ends with a discussion of the book’s contribution and the possible future of Hong Kong’s common law heritage as a part of China.

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For more details see Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (2nd edn, Hong Kong University Press 1999) 1 33.

For an early analysis, see Agnes J Bundy, ‘The Reunification of China with Hong Kong and Its Implications for Taiwan: An Analysis of the “One Country, Two Systems” Model’ (1989) 19 California Western Intl LJ 271. For more recent (sceptical) discussion, see Sean King, ‘Why “One Country, Two Systems” Can’t Work for Taiwan’ in Tai Wei Lim and Tuan Yuen Kong (eds), Studying Hong Kong: 20 Years of Political, Economic and Social Developments (Word Scientific 2018).

In certain respects, Hong Kong’s legal system may be characterized as a mixed legal system even though the main characteristics are of a common law nature; see Jaakko Husa, ‘MacroComparative Law: Reloaded’ (2018) 131 Tidsskrift for Rettsvitenskap 410.

The Basic Law’s Article 12 provides that the HKSAR ‘shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government’.

See Danny Gittings, Introduction to the Hong Kong Basic Law (2nd edn, Hong Kong University Press 2016) 36 54.

The practice of labelling the Basic Law as a mini-constitution rooted early. See eg Trevor M Morris, ‘Some Problems Regarding the Power of Constitutional Interpretation under Article 158 of the Basic Law of the Hong Kong Special Administrative Region’ (1991) 21 HKLJ 87; Ann D Jordan, ‘Lost in the Translation: Two Legal Cultures, the Common Law Judiciary and the Basic Law of the Hong Kong Special Administrative Region’ (1997) 30 Cornell Intl LJ 335, 348.

Jiang Dong, ‘An Introduction to Chinese Legal Culture’ in SÎren Koch and Jùrn éyrehagen Sunde (eds), Comparing Legal Cultures (2nd edn, Fagbokforlaget 2020) 779.

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Taiwan.8 Hong Kong and Macao follow the model, whereas the issue of Taiwan is still open.9 In essence, the model arises from the idea of limited legal pluralism as it allows two systems to overlap and interact.10 Importantly, this unique legal invention was meant to solve the problem of ruling Hong Kong after 1997 when it became a special administrative region of the PRC (HKSAR).11 The most important legal document ensuring the model is the Basic Law of Hong Kong. From a constitutional point of view, this is the key instrument for the HKSAR.12 Its nature as a piece of legislation is, nevertheless, somewhat curious. Instead of being a genuine constitution, the Basic Law has been described typically as a mini-constitution as it lacks the qualities of genuine State constitutions.13 As a legal instrument, the Basic Law is, just like all legislation, under the authority of the PRC. Importantly, the nature of the Chinese system is different from that of Hong Kong’s common law, which creates not necessarily a conflict but a point of tension. In short, the Chinese system differs from the Western systems as there is no separation of powers because the State power is centralized as the National People’s Congress, ‘which not only enacts legislation but also appoints and supervises the judiciary’.14 The paradoxical One Country, Two Systems arrangement is in the focus of Chen’s book—indeed, it is the narrative thread that runs overtly or tacitly throughout. For Beijing, this model is primarily a policy that was and is designed to integrate Hong Kong with the Mainland. However, in Hong Kong, for many, this model is regarded as a contract guaranteeing a high degree of both legislative and executive autonomy, independence of the judiciary, the common law-ingrained notion of the

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On the tension from the standpoint of legitimating ideology, see Ian Scott, ‘“One Country, Two Systems”: The End of a Legitimating Ideology?’ (2017) 39 Asia Pacific J Public Administration 83.

Chen (n 1) 4 27.

On the background, see Hualing Fu and Richard Cullen, ‘National Security Law in Hong Kong: Quo Vadis—A Study of Article 23 of the Basic Law of Hong Kong’ (2002) 19 Pacific Basin LJ 185. 228 (‘certain expectations about the role of Article 23 were developed, on the Mainland especially, after that time. Nevertheless, the clear legislative intent embodied in Article 23 allows the HKSAR government to define the ambit of Article 23 according to common law principles and rules’).

The Constitution of the People’s Republic of China, Article 67(1) provides that the Standing Committee of the National People’s Congress has the power to ‘interpret the Constitution and supervise its enforcement’.

Against the background of the 2016 events, see eg Jaakko Husa, ‘“Accurately, Completely, and Solemnly”: One Country, Two Systems and an Uneven Constitutional Equilibrium’ (2017) 5 CJCL 231; and PY Lo, ‘Enforcing an Unfortunate, Unnecessary and Unquestionably Binding NPCSC Interpretation: The Hong Kong Judiciary’s Deconstruction of its Construction of the Basic Law’ (2019) 48 HKLJ 399.

If the structure of governance and lack of democracy are left out, then we can say concisely that ‘[t]he British tradition of Rule of Law and the independence of the judiciary provided a strong foundation for Hong Kong’s legal system’. Chen (n 1) 101.

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rule of law, civil liberties, and development towards a democratic system. The tension between these legitimating notions is the driving force behind Chen’s book.15 It should go without saying that that same tension is also a constant stress-creating factor between the PRC and the HKSAR, even though it is, of course, at the same time, a constitutional embodiment of reunification.

Although the model is not very old, it has several layers as it has been in a state of flux throughout its existence. The book divides the story of the HKSAR, the Basic Law, and One Country, Two Systems into four periods by relying on leading cases that have concerned these issues and attracted considerable general and legal interest.16 The years 1997 9 spanned a period of initial trial operation when especially the Court of Final Appeal adjusted itself to the novel constitutional order. The years 2000 02 are described as a period of elaboration and consolidation of the rights regime by the Court of Final Appeal. The following years (2003 04) saw the story of Article 23 explaining the tensions and events concerning the failed attempt to legislate a National Security Bill.17 The years 2005 10 witnessed further consolidation of constitutional rights in Hong Kong as the courts confirmed their role in safeguarding constitutional rights by actively exercising judicial power. Although Chen’s chapter on these periods does not reach this decade, nevertheless it shows the significance not only of Hong Kong’s judicial power but also of the Standing Committee of the National People’s Congress wielding ultimate judicial power.18 Chen’s analysis, originally published in 2011, accurately predicts the troubles that the common law-based system of the HKSAR would later face.19 Unfortunately, the developments of the 2020s may have rendered some of Chen’s views virtually empty.

One of the tensions between transplanted common law tradition and its notion of the rule of law arises from the fact that the British style parliamentary system was never introduced in Hong Kong.20 At the same time, the Basic Law ensures

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The Basic Law makes common law’s position clear. Article 8 provides that ‘the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region’; Article 82 provides that ‘the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal’; Article 84 enables the Hong Kong courts to ‘refer to precedents of other common law jurisdictions’; and Article 92 makes it possible to recruit judges from ‘other common law jurisdictions’.

Chen (n 1) 56.

See the Decision of the National People’s Congress on Improving the Electoral System of the Hong Kong Special Administrative Region, enacted on 11 March 2021. The idea is to transform the Hong Kong electoral rules, imposing a restrictive electoral system concerning the election of the Chief Executive and the Legislative Council. The idea is to ensure a system of ‘patriots governing Hong Kong’. See ‘2021 NPC Session: NPC’s Hong Kong Electoral Overhaul Decision Explained’ NPC Observer (11 March 2021) <https:// npcobserver. com/ 2021/ 03/ 11/ 2021npc- session- npcs- hong- kong- electoral- overhaul- decision- explained> accessed 15 April 2021.

Chen (n 1) 58 85.

The composite State is defined ‘as a state that comprises an aggregate or group of constituent units, each category of which is established under it in accordance with different constitutional arrangements’. Guobin Zhu, ‘The Composite State of China under “One Country, Multiple Systems”: Theoretical Construction and Methodological Considerations’ (2012) 10 Intl J Constitutional L 272, 290. Zhu regards the notion of a composite State to be an approach to achieving unity in diversity.

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the role of common law in Hong Kong.21 Against this backdrop, it is not surprising that one of the core conflicts has concerned elections and suffrage, which were left in somewhat unclear status in the Basic Law and the negotiations that led to it. Tension exists between the idea according to which the HKSAR should have a more Western-style democratic voting system (that is, ‘genuine’ universal suffrage) and the view from Beijing according to which ‘the HKSAR Government must be led by patriots loyal to the Central Government’.22 As developments in the 2020s show, Beijing moved in order to resolve the issue by means of legislation.23 Chen’s ‘balanced view’ approach makes the underlying issues visible and provides useful background information, but it does not offer a clear path forward.

One of the chapters where Chen deals with the dilemmas and paradoxes of One Country, Two Systems discusses Hong Kong’s autonomy in theory and in practice.24 Autonomy is understood broadly, referring to a form of governmental power distribution within a sovereign State. Chen asks what the autonomy of Hong Kong means in the context of One Country, Two Systems. Key dimensions of autonomy concern separation of powers, the method of forming the local government, and mechanisms of conflict resolution. According to the consistent mainland view, the PRC is a sovereign unitary State without an actual federative structure. However, because of the two SARs (Macao and Hong Kong), China has been described as a ‘composite State’ by another constitutional law scholar.25 What is clear is that the structure of the PRC and Hong Kong’s place in this structure are laid out in the Basic Law, which establishes a system different from the mainland.

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In fact, there are different views—also depending on the time when views are presented—on the actual degree of judicial autonomy of the Hong Kong judiciary. See eg Steve Tsang, ’Commitment to the Rule of Law and Judicial Independence’ in Steve Tsang (ed), Judicial Independence and the Rule of Law in Hong Kong (HKU Press 2001); Benny YT Tai, ‘Judicial Autonomy in Hong Kong’ (2010) 24 China Information 295; and Han Zhu, ‘Beijing’s “Rule of Law” Strategy for Governing Hong Kong: Legalisation without Democratisation’ (2019) 1 China Perspectives 23.

Chen (n 1) 75.

Ibid 85.

Ibid 88 116.

Ibid 93.

‘Post-colonial Hong Kong has been described as a “city of protests”.’ Ibid 97.

For more detailed discussion on the 2014 movement, see Johannes Chan, ‘Hong Kong’s Umbrella Movement’ (2014) 103 The Round Table 571, 578 (Chan explains that ‘the immediate triggering factor is the NPCSC decision in August to impose a restrictive nomination regime. Deep down, for some of the protesters, there is frustration that they have been campaigning for democracy for over 30 years and they are not prepared to wait any longer’). For a concise overall view,

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In short, the Basic Law entrusts a wide scope of autonomy to the HKSAR in its internal matters on executive, judicial, and legislative areas. Matters concerning foreign relations and defence belong to the PRC. Consequently, more than 95 per cent of laws enacted in the Mainland are not applicable in Hong Kong. What is more, cases litigated in Hong Kong are—in principle—dealt with entirely by HKSAR judicial organs.26 Even here, though, the issue of ‘led by patriots’ turns out to be relevant as Chen explains that Beijing’s understanding of Hong Kong’s autonomy is that ‘the Hong Kong people who hold the key governmental posts in Hong Kong must be people whom Beijing considers acceptable and trustworthy’.27 Along these lines, a typical division of Hong Kong political forces between pro-Beijing and pro-democracy appears like a fundamental watershed.

The problem for Beijing has been that the pro-democracy camp has enjoyed significant support from local civil society and the electorate. There is a problem buried here. In the eyes of the central government, the situation in which the population of an autonomous region starts to support independence is ‘the worst-case scenario’.28 This explains how the 2019 demonstrations and movement were perceived in the Mainland and why.

Chen also discusses the role of social movements and law in post-colonial Hong Kong.29 At the outset, it is clarified that social movements constitute an important form of political participation outside the channels of the electoral system. These movements are about grassroots politics that take shape and place regardless of the top-down model of society’s governance. To that end, it is noted that social movements may also become important for law as the courts may develop new solutions in order to meet the demands of these movements. As a result, ‘the law is itself a medium and arena of social struggle’.30 It is hardly a surprise that these kinds of movements are regarded with suspicion in the PRC, where equivalent movements do not exist.

Now, even though Hong Kong has mainly enjoyed a high degree of social stability in the post-War period, it also has a tradition of collective action in the form of social protest.31 The world-famous—infamous in the Mainland view— Occupy Central Movement in 2014 was a kind of high point of this tradition.32

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see Carmen Tong, ‘A Chronology of Hong Kong’s Umbrella Movement: January 2013 December 2014’ (2019) 51 Educational Philosophy & Theory 194 (lists the key events prior to and during the Umbrella Movement).

Chen (n 1) 116.

Ibid 392.

Ibid 118 29.

See Ewan Smith, ‘The Conception of Legality under Xi Jinping’ in Rogier Cremeers and Susan Trevaskes (eds), Law and the Party in China (CUP 2020) 97.

The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, C491.

Chen (n 1) 124.

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This chapter does not cover the 2019 demonstrations and the following unrest that can be regarded as a continuation, and, to an extent, a boiling over of Hong Kong’s tradition of social protest. In today’s view, no doubt, the high point was the 2019 demonstrations.

Chen’s perhaps belated overall point regarding social movements and law in Hong Kong is that Hong Kong is a fruitful case for studying the relationship between social movements and law. As the years 2019 and 2020 proved, the chapter on views, published originally in 2017, turns out to be prophetic: ‘The future is unknown, but it is certain that the story of Hong Kong law and the story of Hong Kong social movements will continue to be intertwined as Hong Kong marches toward its uncertain future under “One Country, Two Systems”’.33 In the epilogue, written in 2020, Chen laments the fact that the social movement of 2019, which started peacefully, backfired, only to prompt ‘the Central Authorities to impose even tighter control of Hong Kong by means of the NSL’.34 The happenings that led to the NSL, Chen describes in a chapter dedicated to this issue as ‘a perfect storm’.35 At the moment, it is not quite clear how the new NSL will affect Hong Kong’s legal system but it seems obvious that there will be considerable consequences. In any case, the road to the NSL seems to have been paved during 2019 even though the events of 2014 were also meaningful in this regard.

Of course, the development has taken place against the backdrop of the Chinese governance model under the leadership of Xi Jinping that regards the rule of law as important but subordinated to the Party leadership.36 In June July 2019, Hong Kong saw huge—the biggest ever—demonstrations against the Extradition Bill.37 The background to the bill concerns a murder in Taiwan committed by a Hongkonger. The problem was that there was no legal basis for extraditing the suspect. However, large parts of the Hong Kong public saw the bill as a pretext for legislation that would result in Hongkongers facing trial in Mainland China. The underlying key feature behind the suspicions was a fear that the Party-led ‘legal system in the mainland is not trusted by many Hong Kong people, who doubt whether it would provide a fair trial’.38 In Chen’s equitable analysis, the Extradition Bill affair highlights the basic HKSAR tension; civil liberties have flourished even though the local governmental power is not accountable to the people of Hong Kong, nor indeed is it democratically elected.

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Confucius and socialist civilian law: between tradition and modernity The chapter that addresses Confucian legal culture and its potential role today builds on an assumption according to which contemporary Chinese legal scholarship cannot disregard traditional Chinese culture.40 Even though the text is originally from 1999, it is not outdated as it is based on a historical view presenting various layers of Confucian legal culture from the first millennium BC to the late 20th century. The historical narrative circles around the key notions of li and fa and explains how ‘Confucianization’ of law took place.41 Moreover, basic Confucian notions including ren (benevolence, empathy) and familial relationships extending to societal relations as well as an inborn negative attitude towards rights and litigation are explained. One of the key observations is comparative, as Chen sketches Confucian legal culture: Perhaps the most striking contrast between the histories of Chinese and Western civilisations is that in China. . .political authority over a vast territory and a correspondingly huge population was unified and concentrated in an imperial bureaucracy—and politically significant counteracting forces such as a powerful church, an hereditary land owning aristocracy with administrative and military capacity, or urban commercial capital with a significant degree of political autonomy were non-existent.42

In practice, the emperor not only used legislative power but also was the legislative power as such. Interestingly, though, and despite difficulties and problems, Chen deems that Chinese and Western legal traditions are not incommensurable.

This view is well established in modern comparative study of law.43 In any case, 20 years ago Chen thought that human rights, liberal democracy, constitutionalism, and the rule of law could be combined. It is unclear if this optimism is still viable in the political and intellectual climate of the 2020s, where Xi Jinping’s

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For more detailed discussion, see Cora Chan, ‘Can Hong Kong Remain a Liberal Enclave within China? Analysis of the Hong Kong National Security Law’ (2021) Public L 271 <https:// papers. ssrn. com/ sol3/ papers. cfm?abstract_ id¼ 3802681> accessed 20 April 2021. Chan argues that it is crucial how Hong Kong courts will react and, in turn, how Beijing will react to what the Hong Kong courts will do.

Chen (n 1) 34 165.

See also Bui Ngoc Son, ‘Confucian Constitutionalism: Classical Foundations’ (2012) 37 Australian J Legal Philosophy 61 (focusing on constitutional interpretation of li). In a broader legal historical view, see John O Haley, Law’s Political Foundations: Rivers, Rifles, Rice, and Religion (Edward Elgar Publishing 2016) ch 3 (explaining how law remained a secondary instrument of social control enhancing the birth of a centralized form of governance in China).

Chen (n 1) 151.

See eg H Patrick Glenn, ‘Are Legal Traditions Incommensurable?’ (2001) 49(1) American J Comparative L 133.

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Arguably, the NSL has changed the situation, especially in terms of such civil liberties as freedom of speech, the press, and assembly.39

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For an up-to-date discussion, see Delia Lin and Susan Trevaskes, ‘Creating a Virtuous Leviathan: The Party, Law, and Socialist Core Values’ (2019) 6 Asian JL & Society 1 (explaining how the Chinese Communist Party seeks to govern law-making and enforcement in a comprehensive manner based on the idea that the Party’s leadership needs to be implemented throughout governance of the country in ‘accordance with the law’).

Chen (n 1) 168 92.

For more detailed views see Jiang Qing, A Confucian Constitutional Order: How China’s Ancient Past Can Shape its Political Future, trans Edmund Ryden (Princeton University Press 2013).

See also David Ownby, ‘Kang Xiaoguang: Social Science, Civil Society, and Confucian Religion’ (2009) 4 China Perspectives <http:// www. researchgate. net/ publication/ 40916429_ Kang_ Xiaoguang_ Social_ Science_ Civil_ Society_ and_ Confucian_ Religion> accessed 20 April 2021.

For more detailed analysis, see Chun-chieh Huang, Xu Fuguan in the Context of East Asian Confucianisms, trans Diana Arghirescu (University of Hawaii Press 2019).

Chen (n 1) 192.

Ibid 194 202.

‘In doing so, it would be possible to rehabilitate the virtues and insights of Confucianism and other precious elements in the rich and great Chinese cultural tradition’: ibid 202.

See eg LeÝla Choukroune, ‘The Language of Rights and the Politics of Law: Perspectives on China’s Last Legal Ditch Struggle’ (2016) 29 Intl J Semiotics L 779.

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governance and what one might coin ‘the Western camp’ seem to be drifting further apart.44 Discussion on Confucianism continues with addressing three modern thinkers and their relation to notions of democracy.45 First, Jiang Qing’s ideas on developing a Chinese political order not based on democratic legitimacy are reviewed, concluding that Jiang—in effect—proposes substituting Communism with Confucianism.46 Kang Xiaoguang, in turn, advocates re-Sinicization of Chinese governance by restoring Confucianism as the foundation of the State.47 Xu Fuguan differs from Jiang and Kang as he did not reject liberal democracy including rights and freedoms.48 In fact, Xu welcomes Western liberal democracy, arguing that there is no specifically Chinese form of democracy. Chen regards Xu’s neo-Confucianism as more consistent than those of the two others, as Xu is able to incorporate democracy and avoids putting too much weight on the idea of a ruling virtuous elite. Once again, Chen proves to be siding with optimism as he concluded (in 2011) that ‘when Confucian culture revives and China democratises’ it becomes possible to ‘put the Confucian principles of benevolent governance and rule by virtue into practice’.49 The optimistic undertone, so characteristic of Chen’s scholarship, continues in the following short chapter on the relationship between Chinese cultural tradition and modern human rights.50 The essential argument is that adoption of modern human rights by the Chinese tradition is to be viewed as a positive development even if these rights were to be interpreted from the viewpoint of Confucian principles.51 In this context, ‘Chinese’, here understood as Chinese traditional culture, means that modern human rights would be adopted in a manner that enables inclusion of the fundamental strengths of Chinese cultural tradition—most importantly, ethics. One can, however, ask if recent years have brought about a change in Chinese thinking on law, rights, and legal reform.52 Moreover, one should perhaps also ask how Chinese tradition and Chinese

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Chen (n 1) 204 36.

Young Nam Cho, ‘“Governing the Country According to the Law”: China’s Rule of Law Policy as Political Reform’ (2014) 21 J Intl & Area Studies 21.

Chen (n 1) 230.

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governance of today actually relate to each other: what has been taken on board and what has been rejected.

As the relevant chapter makes clear, it is not evident at all how Chinese cultural tradition has contributed to legal thought and development in the PRC.53 During the period 1949 56, Soviet law and legal thinking had a considerable impact, whereas the following period (1957 76) saw suspicion and prejudice of both legal rights and trained jurists. Change came in the next period (1977 81) that witnessed the reform policy of Deng. This included important legal components in the form of ‘socialist legality’. The wounds of the Cultural Revolution were also healed in the area of law, as the following period contained enactment of the 1982 Constitution, further promoting the idea of legality. In Chen’s narrative, 1989 saw a revival of leftist ideology and suspicion of liberal legal thought.

From 1992 to 2008, the ‘socialist market economy’ was built and developed by means of legal reforms. In the early 21st century, the idea of ‘ruling the country according to law’ was established. Law became an important tool for the Chinese Communist Party (CCP) in the form of ‘socialist rule of law’. Of course, although Chen’s focus is on law, the idea of ‘ruling the country according to law’ is not only a legal doctrine. It is a consequential tool for the CCP to bring about political reform, which also concerns the important relationship between local and central levels of governance in China—formal, centrally produced laws are a means of ensuring that the political vision of the CCP effectively spreads to the whole country.54 Years later, Deng wrought major legal developments in public law, the judicial system, the legal profession, and legal education in general. Sources of reference for legislative drafting were expanded to include European civil law tradition (including Taiwan’s transplanted civil law ingredients), common law, and international law. Chen highlights the inborne tension of mainland law, as it is clear that the PRC has taken huge steps in legal modernization. Notwithstanding, many problems and defects remain. It is also made clear that globalization and the need to modernize the Chinese legal system result in a situation where there are no alternatives to developing law by making it compatible with business. As a result, Western law is no longer rejected for cultural reasons. Nevertheless, the result is a unique combination: ‘China is not the Rechtstaat, but the socialist Rechtsstaat, not Rule of Law, but socialist Rule of Law. Thus, embracing the Rule of Law does not mean giving up or diminishing the leadership of the CCP.’55 Overall, in Chen’s account, the PRC legal system seems somewhat paradoxical as it is at the same time developing, socialist, and culturally Chinese. Regardless, the supremacy of the CCP is an elemental part of the fabric of Chinese law and official legal thinking. Consequently, it has been suggested that the CCP has designed a unique understanding of rule of law that differs from liberal views,

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57

58

59 60

61

Ding Xiaodong, ‘Law According to the Chinese Communist Party: Constitutionalism and Socialist Rule of Law’ (2017) 43 Modern China 322.

H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (4th edn, OUP 2014) 349. Interestingly, in the Chinese translation of Glenn’s book, ‘pushing and shoving’ of legislation by the Communist Party turns into legislative ‘restrictions’ set by the Chinese Communist Party; for more detailed discussion see Samuli SeppÌnen, ‘After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law’ (2020) 68 Am J Comp L 186, 210 11.

Larry CatÄ Backer, ‘The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism’ (2009) 16 J Chinese & Comp L 101.

Chen (n 1) 238 63.

For more detailed discussion see Mariana Pargendler, ‘The Rise and Decline of Legal Families’ (2012) 60 Am J Comp L 1043; Jaakko Husa, ‘The Future of Legal Families’ in Oxford Handbooks Online (2016) <http:// www. oxfordhandbooks. com/ view/ 10. 1093/ oxfordhb/ 9780199935352. 001. 0001/ oxfordhb- 9780199935352-e- 26> accessed 20 April 2021.

See eg Gabor Hamza, ‘General Trends of Codification of Civil (Private) Law in Central and Eastern Europe’ (1998 1999) 39 40 Annales Universitatis Scientiarum Budapestinensis de Rolando Eotvos Nominatae: Sectio Iuridica 13.

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which are regarded as self-contradictory or even meaningless.56 In practice, this has various consequences. For example, discouraging citizens from becoming litigants and using the judicial system to fight for their rights seems like part and parcel of PRC law. Yet, the novel ‘socialist legislation looks in many instances just like Western legislation’, although it is also—as Patrick Glenn puts it— ‘subject to the pushing and shoving of the communist party’.57 Another way of looking at this is to argue that China’s notion of rule-of-law constitutionalism, conceived as unique, is best characterized as State-party constitutionalism.58 Albeit, it is far from clear how State-party constitutionalism actually fits within the Confucian tradition as depicted by Chen.

For the above-mentioned reasons, the place of Chinese law in the comparative study of law is an interesting question, which Chen tackles.59 Normally, Western comparative law starts out with two central constructs: common law and civil law. Common law, which is essentially an uncodified form of law, emerged in medieval England and spread as it was applied in the British colonies and other territories—including in Hong Kong—across the globe. Civil law, which is largely a codified form of law, developed in continental Europe during the Middle Ages and spread across continents as it was applied in the colonies of the European imperial powers. Whereas common law is based on a long and ongoing tradition of precedents set by the higher courts, civil law is essentially based on Roman law models. These constructs are still in wide use—indeed, they have been key components of Western comparative law’s intellectual fabric since the 19th century. Socialist law was one of the major legal families in the 20th century but is not considered as important a legal family as common law and civil law.60 However, for discussion on Chinese law the notion of the socialist legal family still carries relevance from the standpoint of comparative law analysis.61 Importantly, socialist law in many ways resembles civil law regardless of the fact that, substance-wise, socialist and civil law also have significant

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Once we are able to understand legal systems as ‘layered complexities’ with ‘plural legal formants’, we can realise the inadequacy, for instance, of using the orthodox classification scheme and simply identifying China’s legal system as a member of either the Civil Law or Socialist family of legal systems.65

Difficulties concerning the placement by comparative law of modern Chinese law are visible in the chapter that deals with the evolving system of property rights in China.66 From a comparative law point of view, property law is of particular interest here as it shows significant differences between mainland law and Hong Kong law. Due to the focus of this review article, detailed property law points are not discussed in the following.

62 63

64

65

66

See John Quigley, ‘Socialist Law and the Civil Law Tradition’ (1989) 37 Am J Comp L 781.

Even if one would not go as far as Legrand and argue that common law and civil law lawyers cannot really understand each other as they have different legal mentality, there are significant differences stemming from unique historical paths. See Pierre Legrand, ‘European Legal Systems are not Converging’ (1996) 45 ICLQ 52.

SeppÌnen (n 57) 217 notes that ‘[w]hereas a foreign description of Chinese civil litigation might be focused on cultural questions—perhaps the remnants of China’s Confucian culture make the courts favour conciliation over litigation—a Chinese legal scholar may well find the study of concrete procedural rules a worthier pursuit’.

Chen (n 1) 262. In fact, Chen criticizes Mattei’s idea to place Chinese law in the rule of traditional law.

Ibid 266 301.

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differences.62 For comparative law scholarship, these differences seem relevant as they highlight the fact that common law and civil law are still different legal traditions.63 Alongside the issue of where to place modern Chinese law, Chen pays special attention to the role and importance of Soviet law. In the 1950s, Soviet law had a special role as its key ideas were followed by China. Even today, the impact of Soviet law is visible—in particular, in the 1982 Constitution: rejection of the separation of powers and concentrated supreme power are Soviet constitutional doctrines. The years from the late 1950s to the late 1970s were not good for the development of the PRC legal system, but a return to developing law from there on has wrought large-scale modernization of Chinese law. Moreover, besides Soviet-style civilian law, there are also important influences and legal transplants from Continental European civil law and even common law. In addition, globalization has brought about—as registered by Chen more than 20 years ago—reception of novel legal ideas in many areas of law; examples include investment, finance, banking, arbitration, and others. Consequently, placing modern Chinese law in the old comparative law framework is not a problem-free task. What is more, the interests of Western legal scholars and Chinese legal scholars may be quite different from one another—a difference reflected in the ways scholars classify modern Chinese law.64 Along similar lines, Chen is well aware of the embedded limits of comparative law’s value to the discussion— against the backdrop of Ugo Mattei’s well-known attempt from 1997—on classification of Chinese law:

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68

69 70

In particular, the amendment of 2004 is of importance as it provides that ‘[t]he lawful private property of citizens shall be inviolable. The State shall protect in accordance with law citizen’s private property rights.’

Tom Allen, ‘The Right to Property in Asia’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Asia (Edward Elgar 2014) 250, 251.

Chen (n 1) 300.

Ibid 304 31. Of Zhu, see also Samuli SeppÌnen, Ideological Conflict and the Rule of Law in Contemporary China (CUP 2016) 91 9 (discusses Zhu’s scholarship against the Chinese rule of law discourse).

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The chapter on the evolution of property rights in China explains and analyses the transformation from the 1980s to the 2000s. Generally speaking, this period is a time when private economic activity started to gain more attention alongside public economic activity and socialist law-inspired (doubtful) views on private property rights. The 1982 Constitution, with numerous later amendments, has been at the centre of these developments, leading to a gradual strengthening of the concept of private property.67 It is shown that German civil law ideas, in particular, have played an important role in transplanting property law-related rules and doctrines. The year 2007 was the high point of property rights development, with the enactment of the Law on Property. As described by another scholar, ‘[u]ntil then, constitutional guarantees were something of an empty vessel, awaiting content from the development of private law’.68 Chen goes on to explain that over the past 40 years China’s economic reform and its socialist market economy, blending State and private economy, have been ‘accompanied by significant legal developments related to property rights’.69 From a comparative point of view, two kinds of trends are involved.

The first is a convergence between Chinese law and continental European civil law. The second is a convergence between PRC law and Taiwanese law, which are united by their connection with continental civil law transplants. Yet it is recalled that notable differences still exist between modern Chinese law and that of Europe and Taiwan. That said, however, the differences have become less striking than they used to be. Simply, if and when property rights are regarded as the cornerstone of a socialist market economy, then that brings the legal systems of the PRC and the West closer to one another. For Hong Kong, such growing proximity seems like a favourable move although, on the other hand, it seems to blur the distinction between two systems within the same country in the area of property law.

The last chapter on Chinese law and legal culture presents, analyses, and criticizes the thoughts of famous Chinese socio-legal scholar Zhu Suli.70 For readers who are unfamiliar with Zhu’s scholarship, this chapter is fruitful as it opens to an interesting scholarly view on the law of the PRC and theoretically grounded and original legal theory. For Chen, Zhu’s scholarship functions as a way to address the underlying core question: Is it possible or desirable for China to come closer to Western legal ideas? For the future of the One Country, Two Systems model this is an important issue and justifies extensive discussion on Zhu.

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Zhu points out that the spontaneous order and customary practices that emerge from the rational choice of countless individuals cannot be easily dictated by the State’s legislative decrees. While most Chinese jurists advocate the Rule of Law, judicial independence, and the protection of people’s right on an abstract and philosophical level, Zhu calls attention to the social reality of people.’71

As Chinese scholarship on law and the legal reality of the PRC prove to be more complicated than one would assume at first glance, it makes sense to contemplate Asian constitutionalism in a broader manner. How do China and its SAR stand out in a broader Asian view? This move makes sense for Chen because through comparison it becomes possible to better grasp Chinese development and its possible future, as China is one of the Asian countries that seeks to modernize its legal system and, as a result, is struggling with issues such as constitutionalization of politics.

Constitutionalism in East Asia During recent years, constitutionalism has become a popular theme in comparative constitutional law and constitutional theory.72 The attempt to globalize constitutionalism is not, however, without problems.73 For instance, Chinese or Russian views on globalization of law are different from those of the USA or the European Union. Regardless, it is clear that constitutionalism is an important issue for Hong Kong as it is interpreted in the context of the overarching One Country, Two Systems model. Another scholar has pointed out that because One Country, Two Systems was not construed by the founders as a conclusive solution for Hong Kong, it means that competing interpretations, including originalism and living constitutionalism, are subject to discussion and are tested with 71

72

73

Chen (n 1) 328. SeppÌnen (ibid) 96 notes succinctly that ‘[f]or Zhu, rule of law is an ideological question’.

See eg Antje Wiener and others, ‘Global Constitutionalism: Human Rights, Democracy, and the Rule of Law’ (2012) 1 Global Constitutionalism 1 (first editorial).

See eg Jaakko Husa, ‘Global Constitutionalism: Some Critical Remarks’ (2017) 47(1) HKLJ 73.

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By addressing contrasts between Zhu’s ideas and those of his intellectual adversaries, it becomes possible to highlight the basic tension that concerns Chinese law— namely, the collision between tradition and modernity in the area of law. There are two important things to learn from this chapter. First, it shows that Chinese legal scholarship is not a monolith that contains only State-directed views in total unison.

Second, it opens up an important and intellectually fascinating train of thought that diverges from the rule-of-law oriented legal modernization majority view. It seems evident that Chen is impressed by Zhu’s scholarship; however, he does not remain blind to its defects. In particular, Chen criticizes historical materialism, which has been the base of Zhu’s scholarship, as a self-evident truth. It is also noted that even though Zhu draws much from Michel Foucault, he is unable or unwilling to deploy Foucaldian critique when it comes to the CCP. Perhaps most importantly, by discussing an intriguing mainland socio-legal scholar, Chen opens a view on a kind of a legal pluralism in the living law of the PRC:

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75 76

77

78

79

Yunxin Tu, ‘The Question of 2047: Constitutional Fate of “One Country, Two Systems” in Hong Kong’ (2020) 21 German LJ 1481, 1483.

Chen (n 1) 336 62.

See Backer (n 58). For a more detailed discussion, see Jiang Shigong, ‘Chinese-Style Constitutionalism: On Backer’s Chinese Party-State Constitutionalism’ (2014) 40 Modern China 133; Larry CatÄ Backer, ‘Jiang Shigong 强世功 on ‘Written and Unwritten Constitutions’ and Their Relevance to Chinese Constitutionalism’ (2014) 40 Modern China 119.

See Ling Li, ‘“Rule of Law” in a Party-State: A Conceptual Interpretive Framework of the Constitutional Reality of China’ (2015) 2 Asian J L & Society 93.

See Vito Breda, ‘Introduction’ in Vito Breda (ed), Legal Transplants in East Asia and Oceania (CUP 2019) 1.

Chen (n 1) 362.

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changing societal circumstances.74 It is against this background—the transforming realities of China and Hong Kong—that Chen’s views on Asian constitutionalism may be discussed.

To begin with, Chen’s basic assumption is that constitutional matters in East Asia (East and Southeast Asia) are a fruitful object of study for comparative constitutional law, constitutional theory, and politics. The chapter on constitutionalism in East Asia is built on this foundational assumption.75 First, types of regime are discussed; then, synthesized mapping of constitutions and regimes is constructed. There are five types: (i) the developed democracies of Japan, South Korea, and Taiwan; (ii) the unstable democracies of the Philippines, Thailand, and Indonesia; (iii) the semidemocracies of Malaysia and Singapore; (iv) the authoritarian regimes of the PRC and Vietnam; and (v) totalitarian North Korea. Curiously, it is not clear where Hong Kong is placed as it is mentioned in the context of group a even though not actually placed in that group. Moreover, Singapore is also mentioned in the context of group a even though it is actually placed in group (iii).

In discussion on China and Vietnam, Chen relies on—but also criticizes— Larry CatÄ Backer’s theory of ‘state-party constitutionalism’.76 Yet, it is suspected that Backer’s theory is unable to legitimize the party-State itself even though it makes the constitutional system of the PRC easier to classify and understand in terms of comparative constitutional law and theory. Regardless, political reforms in the PRC since the 1980s have not separated the power of the CCP and the State.77 For Chen’s narrative, this state of affairs is not the key point as he argues that even though constitutionalism is transplanted from its birthplace in the West, it is nonetheless growing up in the receiving systems of East Asia. Much of the use of transplants has not been intended to build democracy or the rule of law as seen in the West but rather to enhance economic growth.78 This factor has an impact on the way in which legal transplants of constitutional value will behave in the future and how the adapting systems will transform them in the process. It is no surprise, then, that the ‘constitutional future of this part of the world promises to be an exciting and challenging one’.79 As the world has seen, recent years have proved that this prediction holds water. Even though the last couple of years have been particularly constitutionally eventful in Hong Kong concerning the One Country, Two Systems model, we can see that challenges have been more far widespread than Chen envisaged when the chapter

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The development of constitutionalism in non-Western parts of the world such as Asia has been a process of legal transplant, as constitutionalism originated in the Western world. . .the achievement of constitutionalism since the end of the Second World War, and particularly since the 1980s, has been considerable and significant.83

Clearly, much depends on the specific viewpoint from which one observes constitutionalism. Against the backdrop of so-called global constitutionalism, Asian forms of constitutionalism may look like attacks on (Western) constitutional values. To that end, adding free market approach and globally oriented economic strategies to authoritarian rule may seem like reducing and mutilating the values of constitutionalism.84 For the reader, it is evident that Chen often struggles with steering between the Scylla and the Charybdis. As a result, his scholarship metaphorically reflects the paradoxical tension that is built into the fabric of the 80 81

82 83 84

Ibid 364 84.

This chapter, perhaps more than other chapters, underlines distinctly the relevance of context and history: ‘The degree to which constitutionalism is realised in a particular country or jurisdiction depends on the relevant historical and ideological contexts, the nature of political and social circumstances and needs of the state and society concerned’: Chen (n 1) 368.

Quotes Chen (n 1) 377, 381.

Ibid 382 3.

See Konrad Lachmayer, ‘Counter-developments to Global Constitutionalism’ in Martin Belov (ed), Global Constitutionalism and Its Challenges to Westphalian Constitutional Law (Hart Publishing 2018) 81, 96.

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was originally published in 2017. In this sense, some of the ideas that were relevant just few years ago seem to have lost part of their relevance in the situation of the 2020s.

The following chapter on East Asian constitutionalism explains the change from the 1960s and 1970s from hybrid constitutionalism and authoritarianism to a more developed and complex Asian mode of constitutionalism.80 Importantly, even though this mode of constitutionalism is based on legal transplants, as a political-constitutional practice it is still distinct from the liberal constitutionalism of the West.

Chen explains and provides a contextual background for East Asian constitutional transformation.81 Hong Kong started with a political system with colonial-style centralized rule, Taiwan with authoritarian one-party rule, South Korea with strongman rule, much like Indonesia, and Thailand with a military dictatorship. Five decades have changed these five systems. Hong Kong had developed (by 2020) some form of liberal constitutionalism, Taiwan had moved to liberal constitutionalism flanked by liberalization and democratization, South Korea had transformed into ‘one of the strongholds of liberal constitutionalism in Asia’, and Indonesia developed its own version of liberal constitutionalism, whereas Thailand was illustrating ‘the inherent limitations of constitutional democracy’.82 These developments also illustrate how the legal transplant, even though thoroughly discussed and heavily criticized, has been useful as a tool for developing East Asian political and legal systems:

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Discussion When the drafting of the Basic Law took place, two legal cultural views collided. As a historian notes, ‘[t]he vocabulary of constitutional discourse differed widely between Beijing and London’.85 Despite remarkable legal development in the mainland, this difference still exists, and the Basic Law’s attempt to marry Hong Kong’s colonial-type system and common law with the PRC system has not been fully successful. The One Country, Two Systems model was, from the very beginning, standing on shaky ground in the sense that it rests on events in the mainland. Many of the underlying constitutional and political tensions problems are inbuilt in the Basic Law’s fabric. Marrying different legal cultures is a difficult thing to do, as legal history and comparative law scholarship prove.86 Chen’s book confirms the existence of some of the key difficulties involved.

The most recently written part of Chen’s book—the Epilogue—presents and discusses more recent developments such as the 2020 National Security Legislation and the rule of law in the new situation.87 Whatever one makes of the situation today, evidently the issues of the rule of law and One Country, Two Systems are more complex than they would appear to be at first glance.

Accordingly, issues arise such as discussion of ‘partial rule of law’, ‘socialist constitutionalism’—both of these viewed critically by Chen—and accepting the political reality of the PRC as a basis for constitutional theory and analysis. Much of this may be difficult to absorb for the common law-ingrained legal profession and legal academia of Hong Kong. Then again, perhaps common law itself has changed so it can also accommodate Asian variants.88 Transformation into an Asian common law is, however, a tall order, even though English has become a sort of lingua franca among Asian legal scholars.89 Overall, even though the collection of texts is not as coherent as a genuine monograph would be, this volume exhibits one remarkable strength: it explains

85 86

87 88

89

Frank Welsh, A History of Hong Kong (2nd edn, Harper Collins 1997) 530.

These difficulties are well known in the context of so-called mixed legal systems. For a discussion of Hong Kong as a mixed legal system in the making, see Jaakko Husa, ‘Language of Law and Invasive Legal Species: Endemic Systems, Colonisation, and Viability of Mixed Law’ (2020) 9 Global J Comp L 129, 161 7.

Chen (n 1) 386 411.

See Kwai Hang Ng and Brynna Jacobson, ‘How Global is the Common Law? A Comparative Study of Asian Common Law Systems—Hong Kong, Malaysia, and Singapore’ (2017) 12 Asian J Comp L 209.

See Gary F Bell, ‘The Civil Law, the Common Law, and the English Language: Challenges and Opportunities in Asia’ (2019) 14(S1) Asian J Comp L 29.

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One Country, Two Systems model. From a comparative law point of view, this tension is an interesting discussion point as it shows where the collisions between legal cultural views situate.

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90

91

92

Ignited by what Chief Executive Carrie Lam said in a press conference on 1 September.

‘Statement of the Hong Kong Bar Association (“HKBA”) about the Separation of Powers Principle’ (2 September 2020), followed by Teresa Cheng, ‘Why Separation of Powers has no Place in Hong Kong’s Political Structure’ South China Morning Post (9 September 2020) <http:// www. scmp. com/ comment/ opinion/ article/ 3100695/ why- separation- powers- has- noplace- hong- kongs- political- structure> accessed 20 April 2021.

Chen (2021) 398 407, uses the notions of ‘rule by law’ and ‘rule of law’ as the basis of discussion referring to Peerenboom’s well-known work; see Randall Peerenboom, China’s Long March toward Rule of Law (CUP 2002).

Chen is, of course, not the only scholar in this situation. See SeppÌnen (n 70) 181 (speaks of Chinese legal scholars and jurists broadly).

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the underlying tensions and path dependence concerning the situation today.

Many of the book’s chapters may seem outdated and there is repetition here and there, but the value of these chapters lies elsewhere rather than being up to date. The real value lies in how sub-surface factors are rendered comprehensible instead of registering and commenting on the most recent events, legislation, and case law. By reading The Changing Legal Orders in Hong Kong and Mainland China, it becomes easier to grasp the constitutional and political clashes that One Country, Two Systems almost inevitably stirs. Against this background, debates and discussions on Hong Kong’s constitutional law and legal system are easier for outsiders to comprehend. For instance, the debate on separation of powers and whether or not it is a part of the HKSAR system is clearly embedded in constitutional paradoxes: why the Hong Kong Secretary for Justice argues that separation of powers has no place in Hong Kong’s political structure and why the Hong Kong Bar Association needs to issue a statement arguing otherwise.90 All this would seem overly political, but Chen’s book makes it clear that there is more than meets the eye.

In a sense, the game of constitutional politics has been going on since the 1980s and shows no signs of cooling down. Then again, because of the changes in China’s constitutional policy wrought by Xi Jinping, it makes sense to ask if the rule of law is no longer a useful framework for studying and evaluating contemporary Chinese law.91 For the HKSAR, this is a vital issue. It seems that Chen is at the crossroads of conflicting intellectual traditions and ideological goals, which makes a balancing act difficult.92 From a more critical perspective, the reader may feel that he is a bit too cautious and shies away from taking a firm stand. Having said that, Chen’s legal scholarship is about finding a balance and encouraging dialogue, not taking firm stands and shutting doors.

Transplanted common law heritage, Socialist civilian law, new-Confucianism, globalization, and social movements all add their own twist to the constitutional biography of Hong Kong. Importantly, Chen’s book is a contextual biography of a living creature known as One Country, Two Systems. This book is not a constitutional autopsy of a dead system or a biography of a dwindling legal construction. It remains to be seen what the current decade brings to the life of this creature and whether it becomes more legal history than anything else. If Albert Chen’s carefully balanced and reticent optimism is anything to go by, then this curious legal creature will continue its life. At the same time, the course of its life has become more difficult

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93 94

Chen (n 1) 410.

On constitutionalism and the rule of law in Singapore, see Kevin YL Tan, The Constitution of Singapore: A Contextual Analysis (Hart Publishing 2015) 53 62.

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to predict. Then again, if you blend in legal cultural ingredients that are so different, what else is there to expect? Changes in the law are nevertheless always to be expected, as ‘it is inevitable in legal orders, as it is in all human affairs’.93 It remains to be seen what the NSL means for the One Country, Two Systems model. It is for future scholars to record if the NSL was such a constitutional game-changer, as it appears to be. Notwithstanding, the number of those arrested on the basis of the NSL is steadily growing as this is being written. Proliferating charges on subversion show where the crux of the tension lies; undermining the authority of the central government does go together with the State-party constitutionalism and the accompanying Mainland view on the rule of law not even under the scheme of One Country, Two Systems.

It is notoriously difficult to predict the future, but if one uses Chen’s book as a basis for making a future projection, then it seems that he is leaning at least implicitly towards a Singaporean model in a broad sense. In practice, this would entail a thin notion of the rule of law that can be anchored to the mercantile past and not on a thick notion of the rule of law. In this reading, the capitalist system would still be based on the courts independently enforcing law between the contracting parties but placing less weight on democracy and political rights. The overall stress would lie on legality and stability.94 Consequently, common law survives in many areas of law, but public law becomes more or less ‘mainlandized’. Presumably, this would fit relatively well with the Confucian legal thought that underlines consensus, not conflict. It is, nonetheless, a different question if this Confucian train of thought will be accepted by the majority of the Hong Kong legal profession and legal scholars. As a whole, the book seems to suggest, indirectly at least, that there is no real alternative for Hong Kong. Hence, Chen’s solution appears to be to encourage dialogue, not conflict, between Hong Kong’s common law and the State-party constitutionalism of China.