Legal Hybridity in Hong Kong and Macau

By Castellucci, Ignazio | McGill Law Journal, June 2012 | Go to article overview

Legal Hybridity in Hong Kong and Macau


Castellucci, Ignazio, McGill Law Journal


The article aims to compare the case of the two Chinese Special Administrative Regions (SARs) of Hong Kong and Macau against the theoretical grid developed by Vernon V. Palmer to describe the "classical" civil law-common law mixed jurisdictions. The results of the research include an acknowledgement of the progressive hybridization of the legal systems of Hong Kong and Macau, hailing from the English common law and the Portuguese civil law tradition, respectively, by infiltration of legal models and ideologies from Mainland China.

The research also leads to a critical revision and refinement of the methodology and tools developed by Palmer in order to make them applicable to a wider range of processes of legal hybridization beyond "classical" mixes, and to a better appreciation of how transitional political and institutional phases play a critical role in legal "mixity" or hybridity.

Cet article a pour but de comparer les cas des deux regions administratives speciales (RAS) de Hong Kong et de Macao avec la grille theorique developpee par Vernon V. Palmer afin de decrire les juridictions mixtes << classiques >> droit civil-common law. Les resultats incluent une reconnaissance de l'hybridation progressive des systemes juridiques de Hong Kong et de Macao, originaires de la common law anglaise et de la tradition civiliste portugaise respectivement, par l'infiltration des modeles juridiques et des ideologies de la Chine continentale.

La recherche amene egalement une revision critique et un affinement de la methodologie et des outils developpes par Palmer afin de les rendre applicable a un plus large eventail d'hybridation allant au-dela des melanges << classiques >> et a une meilleure appreciation de comment les phases de transition politiques et institutionnelles jouent un role critique dans la << mixite >> ou l'hybridite.

Introduction

  I. Theoretical Frame and Methodology
     A. Vernon Palmer's Theoretical Findings
     B. Application of Palmer's Grid to the Case of the
        Chinese SARs
 II. China and Its Two SARs: Institutional Superimposition
III. Legal Infiltrations: Interpreting the Basic Laws
     A. The Interpretive Mechanism
     B. Ng Ka Ling
     C. Subsequent Interpretation of the Basic Law by
        the NPCSC
     D. The Congo Case
     E. Identifying Principles and Rules Being Infiltrated
     F. The Unequal Duality of Vision
 IV. Delegalization: The Closer Economic Partnership
     Arrangement
  V. Hybridization: The "Soft" Way
     A. Macau and Its Lower Resistance
        to Legal Infiltrations from Mainland China
     B. General Differences Between the Two SARs
     C. Article 23 of the Basic Laws
     D. Legal Education in Macau
     E. Cultural Changes
     F. The Administrative Formant
 VI. Testing the Chinese SARs' Case against Palmer's
     Analytical Grid on "Legal Mixity" and Refining
     the Grid
     A. The Test for "Obvious Amount"
     B. The Test of "Critical" Features
     C. The Test of Subjective Perception of "Mixity"
     D. Refinement of Palmer's Grid
VII. Testing the Tools for Research on "Mixity"
     Against China: More Lessons to be Drawn
     A. Modern Mixed Jurisdictions
     B. Importing Foreign Legal Models
     C. Subjective Perception
     D. New Categories

"I do not think we fully understand them."

--Vernon V. Palmer

Introduction

A serious collective effort has been produced in recent years by the comparative legal scholars' community to produce advances in out understanding of mixed jurisdictions. Despite the candid admission of one of the champions of the field (quoted in the epigraph to this article), (1) out knowledge in this subject has certainly improved in the last decade or so. The geographic area of research on "mixity" has been enlarged far beyond the relatively small number of "classical" mixed legal systems, to involve other jurisdictions featuring obvious interactions and/or contaminations of different legal cultures. …

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