(This essay was published in South China Morning Post on 14 October 2015.)
One of the central roles of a state is to enforce justice within the domain of its rule. National legal systems protect law enforcers from being bullied with either violence or bribes by powerful litigants. The higher the risk of coercion, the greater is the need for the state to protect and control law enforcers. Such control, however, also makes law enforcers beholden to the state and politicizes justice.
The different outcomes that can result are evident in the common and civil law systems, which have their roots in England and France, respectively. In the 12th and 13th centuries, England was relatively peaceful and began moving toward adjudication by relatively independent juries, while less-peaceful France went in the direction of adjudication by state-employed, royally-controlled professional judges to resolve disputes.
In essence, these two systems represent a fundamental choice between state-controlled versus independent justice.
By the 18th century, judicial independence had become an undisputed element of the English system. France, on the other hand, sought to codify law so that specific “bright line” rules became the basis of adjudication, rather than broad principles.
As the accuracy of codes has improved and the local pressure on judges has declined, common and civil law systems have tended to produce similar resolutions of specific disputes. Centralized justice is less severe in societies where the government is more constrained by its subjects and the interests of the sovereign, judge and community are more aligned.
But civil law works very badly in dictatorships, where it politicizes justice and leads to socially inefficient outcomes.
There is strong evidence to show that when civil law is transplanted through colonization into an environment with a bad government, it will lead to more abuse. Transplantation of common law does not suffer as much from this problem as the sovereign is less able to use the legal system for political purposes.
China’s legal system has its own mixed history. It was rooted first in a desire for military survival and subsequently for administering a vast empire, and later for modernization. These objectives continue to inform China’s governance and rule, and its administration of justice.
The traditional legal system emerged as a product of state building during the Warring States period. Imperial and dynastic China did not have to contend with powerful feudal lords in the way France had to, and for most periods China was far more peaceful than France.
Yet administering and defending a vast and dispersed agrarian empire was economically costly. Talented commoners were recruited into the legal bureaucratic state but they were often underpaid and, despite their schooling in Confucian ethics, they were prone to be corrupted by local landlords.
The rulers took steps to minimize this problem. During the Qing Dynasty, all cases that carried a death penalty had to be examined and approved by the Ministry of Justice. There was a clear objective to control state officials, who also performed the role of being state-employed judges, in order to ensure predictable and consistent results in the application of the law for serious crimes.
Another administrative strategy was to rotate state officials regularly and never to post them to the localities from which they came. The fear of subversion of justice by corruption has always been a serious concern of the Chinese government.
In the early 20th century, China adopted the German legal code as being most compatible with its vast size and bureaucratic traditions.
The German system had a distinctive communitarian character. It was the product of the Prussian desire to build up a rational state bureaucracy and a strong military command in fear of Napoleonic France, and unite the many small states, principalities and cities in Bismarck’s Germany.
Once a legal system is established it becomes a permanent institutional arrangement and continues to exercise a dominant influence over how society is ordered.
“One-country two-systems” as practiced in Hong Kong still requires an effort to marry life under common law in Hong Kong with China’s German-influenced civil law and Chinese legal traditions.
From AD 1100 to 1400, British feudal lords paid the king for the right to have local jury trials and sought repeatedly to make peace with the sovereign, despite periodic conflicts, as they progressively secured greater rights to administer their local disputes. What dues has Hong Kong paid? What dues should be paid?