Critical Essay on Positivism with Special Reference to the Hong Kong Special Administrative Region[S1]
Introduction
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The[S2] word ‘positive’, as used in jurisprudence, is derived from the Latin word positum, meaning “having been laid down”. Its foundation consists in the pedigree thesis, separability thesis and the discretion thesis[S3].
The positive law school has its main pillars, such as Jeremy Bentham, John Austin, H.L.A Hart, Hans Kelson. This essay will study their views with reference to the Hong Kong Special Administrative Region (HKSAR[S4]).
1. The Pedigree Thesis
Every society has some form of social order, some way of marking and encouraging approved behaviour, deterring disapproved behaviour, and resolving disputes. The pedigree thesis asserts that legal validity is a function of certain social facts[S5].
1.1 Bentham and Austin:
According to Bentham and Austin[1][S6], law is a phenomenon of societies with a sovereign;: a determinate person or group who have supreme and absolute de facto power. The laws in that society are a subset of the sovereign’s commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction[S7].”. This imperatival theory is positivist, for it identifies the existence of legal systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether his commands are meritorious.
Imperatival theory has two other distinctive features, monism and reductivism. The mMonism: the theory represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign himself. The Reductivism: the theory on the other hand maintains that the normative language used in describing and stating the law ––– talk of authority, rights, obligations, and so on –– can all be analyszed[S8] without remainder in non-normative terms, ultimately as concatenations of statements about power and obedience[S9].
Imperatival theory does not accord with the complexities of the present time:. fFor example, in Hong Kong (HK), according to the Basic Law Article 1,[2][S10], HKSAR is an inalienable part of the People’s Republic of China (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 through Basic Law (‘commands’). The Basic Law has the feature of being reductivist, as it is concatenations[S11] of statements about power and obedience. Basic Law Article 22 states that Basic Law is not only binding on HK, but also binding on PRC’s institutions (sovereign),[3], therefore it does not haves the feature of monistic[S12]. In addition, the law is not backed up by threat of force or “sanction” from PRC. HK citizens agree with the Basic Law because they realise[S13] that the law provides various advantages to them all, other than by fear.
1.2 Hans Kelsen:
Hans 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 science of law free from metaphysical elements (hence a pure theory). In addition, Kelsen retains the imperativalists’ monism but abandons their reductivism[S14].
On Kelsen’s view, law is characteriszed by a basic form and basic norm. The form of every law is that of a conditional order, directed 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 under certain conditions. In HK, if Cap 210 Theft Ordinance s24 creates an offence of handling stolen goods which has penalties attached to it and the defendant handles stolen goods then the judge ought to apply the appropriate penalty[S15]. For Kelsen, as opposed to Austin, this is not just a case of the official being under a duty, 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 stolen[S16] 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 Kelsen[S17], 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 conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was[S18] itself created in a way provided by an earlier constitution. The very first constitution’s authority, says Kelsen, is “presupposed.”. Kelsen’s will view is that an HK Ordinance is legally valid because the Basic Law confers members of the Legislative Council[5] and the HK Government[6] 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 earlier constitution, Organic Law.[9][S19].
However[S20], it is not easy to identify the basic norm in HK society as Kelsen’s idea of the nature of the basic norm is unclear. Since basic norm does not have a specific content, and since it is primarily presupposed, its role in the validation of the other norms in the hierarchy can be fraught with obscurities.
1.3 H.L.A. Hart
If law cannot ultimately be grounded in force, or in law[S21], or in a presupposed norm;, on what does its authority rest? H.L.A. Hart comes up with an answer for the above question,question[S22]; he resembles Kelsen’s emphasis on the normative foundations of legal systems, but rejects Kelsen’s view of authority in favour of an empirical one[10]. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is a social rule that exists only because it is actually practiced. Hart makes use of two types of rule – primary and secondary[S23]. Primary rules are those of obligation, which state what must or must not be done;. tThese are duty-imposing rules. Secondary rules are those of recognition, change and adjudication;. tThey are power-conferring rules designed to supplement the primary rules. The secondary rules affect the operation 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 change, adjudication and recognition.
It is an important feature of Hart’s account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists’ picture of the political system was pyramidal power, Hart’s is more like Weber’s[S24] rational bureaucracy.
In HK, by looking at the legislation, we can identify many ordinances as primary rules. Examples are to be found from Cap 200 Crimes Ordinance and Cap 210 Theft Ordinance, etc. Hart[S25] tells us that these primary rules are needed concerning the free use of violence, theft and deception 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 system[S26]. The rule of recognition resolves the problem of uncertainty as to the legality and validity of rules. HK’s 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 National People’s Congress (NPC) authoriszes the HKSAR to enjoy 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 maintained[S27]‘. Article 11 states that legislative and judicial systems, and the relevant policies, shall be based on the provisions 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 two types of the rules of change:
Private 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 procedures[S28].
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 adjudicate cases[S29].
2. The Separability Thesis
Positivists insist on the importance of the separation of law from morality. This thesis comprising the foundation of legal positivism is the separability thesis. This abstract formulation 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 validity[S30]. As H.L.A[S31]. 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 satisfy certain demands of morality, though in fact they have often done so.“[11]. According to Kelsen’s Pure theory of Law[S32], all elements impure or extraneous to law had to be split off, to leave a remnant 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 Faber[12][S33] 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 defining 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 possible 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 Prevention of Cruelty to Animals (Amendment) Bill 2006 at the Bills Committee and the judicial review on the age of sexual consent for homosexuals, moral played an important role on legal validity.
3. The Discretion Thesis
Discretion thesis is the view that judges make new law in deciding cases not falling 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.[13][S34]
The discretion thesis does not belong to positivism’s 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, Hart[S35] 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 decide”[14].
In HK, an example can be found in the case of HKSAR v Ng Kung Siu & Others[15] (decided on 15 December 1999) (Ng Kung Siu). In this case, the Court of Final Appeal (CFA) has to decide whether s7 of the National 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 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 restriction[S36]‘.
4. Conclusion
From the above discussion, we can see that Positivism’s 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 Kelsen’s idea of the nature of the basic norm 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 Theory of Law and State, trans. A. Wedberg, repr. 1961. New York: Russell and Russell, p.61
