(This essay was published in Hong Kong Economic Journal 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 interests that are litigants. The higher the risk of coercion, the greater is the need for the protection and control of law enforcers by the state. Such control, however, also makes law enforcers beholden to the state and politicizes justice.


In pre-modern times, the landlord needed the state to protect his rights against difficult peasants, and the peasants needed the state to protect their rights against abusive landlords. Kings in pre-modern states were concerned about how justice was administered and whether it was done so fairly.


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 12-13th centuries, the relatively more peaceful England moved toward adjudication by relatively independent juries, while the less peaceful France went in the direction of adjudication by state-employed royally-controlled professional judges to resolve disputes. The differences were especially puzzling because at that time, the English king commanded greater power over his subjects than the French king did over his. A king naturally prefers adjudication by a royal judge beholden to him.


During the years AD 1100-1800, France experienced warfare within its territories 22% of the time, but England only 6%. Weapons were also much more available in France to anyone who wished to subvert justice.


For a legal system to protect property, coercion and corruption must be limited. When bullying is moderate, it is more efficient to leave the adjudication of disputes to independent local decision-makers, such as juries, than to delegate it to possibly biased state-employed judges who are better insulated from bullying. When bullying is extreme, it is better to accept the distortions inherent in more biased but better insulated adjudication by state-employed judges, than to leave decisions in the hands of the vulnerable locals.


France chose to rely on state-employed royal judges precisely because local feudal lords were too powerful: there was no possibility of effective local justice when these lords’ interests were involved. England, in contrast, had weaker local magnates and so its juries were less vulnerable to subversion and could be trusted with adjudication. The decision to use royal judges versus an independent jury hinged upon the extent to which local feudal lords feared the king or feared each other. People will prefer dictatorship when they fear a dictator less than each other.


Feudal lords in France were so powerful that they were more afraid of each other than of the king, and as a consequence it was deemed more appropriate to delegate dispute resolution to the sovereign, even if the lord had a stake in the matter. In England the lords were willing to pay the king to allow them to resolve disputes locally because royal power was sufficient to protect local law enforcers, unlike in France. Without internal peace, a system of juries may not work. Juries work better when they care about the community and are less vulnerable to the influence of local lords.


Both France and England thus opted for systems that were more appropriate to the conditions in their countries at the time. These differences persisted for centuries, which reinforced the initial divergence in their legal systems.


Contrasting Historical Development in England and France


Why were local nobles so much weaker in England than in France? Why did France fail to follow the English path? A king naturally prefers adjudication by a royal judge beholden to him. Juries reflect the preferences of the local community, not those of the king, and unlike judges, they cannot be incentivized or controlled fully by the king. But also unlike a royal judge, juries are vulnerable to influence by local nobles. A royal judge would not cater to the preferences of the local community.


After William the Conqueror invaded England he gave his followers small and dispersed parcels of land and prevented the creation of large contiguous land holdings to weaken the local nobles. As a consequence, local pressure on the juries was weaker, and the decisions they could reach were probably closer to the community standards of justice. It was then beneficiary to delegate the adjudicatory powers to the juries and the magnates were willing to pay the king for that privilege.


In France the monarchy had no good excuse to break up the land of the great territorial lords until the French Revolution of 1789. Relations between the king and local nobles were more like those between independent powers. A jury of notables in France would not be able to deliver justice when the interest of local nobles was involved. It was therefore deemed desirable to surrender adjudicatory powers to royal judges even when the preferences of the king did not reflect community justice.


Adoption of royal judges is thus a clear sign of the weakness of the king vis-à-vis the feudal lords.


France in the 13th century moved firmly toward a judge-inquisitor model (調查者) governed by Romano-Canon Law. Judges questioned witnesses privately and separately, prepared written records, and determined the outcome of the case. The king controlled the judges through appointments, reappointments and bribes, although the control was not absolute because of the sale of office.


Henry II (1133-89) in England developed the jury system. In its original formulation, the jury was an assembled body of local notables who would under oath provide true statements before royal judges, but were not given control over the outcome of the case. But the public nature of juries’ verdicts made it difficult for judges to completely ignore them.


There was a gradual movement to ensure that judges could not convict without the consent of a jury. And the King accepted juries as a check on royal judges and royal power. In the 14th century, trial by jury and the due process of law was accepted by Parliament as the law of the land.


The judge’s role was increasingly limited to maintaining courtroom order, framing the questions the juries must answer, and ensuring compliance with the ground rules of the various forms of action. The 1701 Act of Settlement confirmed judicial independence. By the 18th century judicial independence became an undisputed element of the English legal system.


Growing Complexity, Convergence and Transplantation


By the 19th century, growing social complexity and economic development made it necessary for the codification of legal codes to appear. Codification is an attempt by the king to control judges as his knowledge of individual disputes deteriorates. Codification involves greater reliance on specific “bright line” rules rather than broad principles for adjudication. Many jurists often consider it as a defining element of the civil law system.


A bright-line rule is a clearly defined rule or standard, which leaves little or no room for varying interpretation. The purpose of a simple bright-line rule is to produce predictable and consistent results in its application. The simplicity of bright line rules, and the possibility of verifying their violation, enables the king to use them to monitor and evaluate the performance of judges.


The common and civil law systems therefore came to differ on these dimensions: the reliance on written records versus oral argument, the importance of trials, the role of appeal, combining versus separating prosecution from judging, and the importance of precedent. These differences could be plausibly traced to the fundamental choice of state-controlled versus independent justice.


As the accuracy of codes improved and the local pressure on judges declined, common and civil law systems tended to produce similar resolutions of specific disputes. Civil law systems have worked well when the preference of the sovereign is close to the community, otherwise they become a vehicle for the sovereign to control judges politically and punish enemies.


Civil law works very badly in dictatorships, where it politicizes justice and leads to socially inefficient outcomes. 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.


Some countries inherited their legal systems as colonies so the legal rules are transplanted ones. 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. When civil law is transplanted into an environment with a bad government it will lead to more abuse (and there is strong evidence for this).


China’s Legal Traditions and Implications for Hong Kong


China’s legal system has its own, mixed history. The traditional Chinese legal system emerged as a product of state building during the Warring States period. Talented commoners were recruited into the state bureaucracy, ending the rule of the privileged feudal aristocracy. The legal bureaucratic state became an effective political instrument for total military and economic mobilization in the intense and protracted violent military struggles among states for survival. Land ownership became widely privatized by the time of the unified Qin and Han Dynasties, creating an era of prosperity.


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, but administering and defending a vast and dispersed agrarian empire was economically costly. Despite the schooling provided to scholar mandarins in Confucian ethics, they were often underpaid and therefore prone to be corrupted by local landlords.


The administration of justice therefore was often subverted more by bribes and corruption rather than threats of violence. When resources became stretched by imperial largesse and expensive wars, corruption became rampant and the bureaucracy was corroded by the blatant sale of office. Dynastic decline set in.


Nonetheless, enforcing the law and administering justice was a major concern of imperial rule. The Qing government mandated local officials to provide written submissions of all homicide and manslaughter criminal cases where the verdict called for sentencing by death if convicted. Every case was individually examined and had to be approved by the Ministry of Justice (刑部). The Qing government was extremely conscientious and methodical in the administration of justice.


The objective here was clearly 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 these officials regularly and never to post them to the localities from which they came. The traditional fear of subversion of justice by corruption has always been a serious concern of the Chinese government.


In the early 20th century, the Chinese government decided to adopt the German civil code, with its communitarian emphasis, as being most compatible with China’s vastness and bureaucratic traditions. The German system was the product of the Prussian desire to build up a rational state bureaucracy and a strong military command in fear of Napoleonic France. These institutions were instrumental in unifying the many small states, principalities and cities in Bismarck’s Germany with a distinctive communitarian character.


The legal systems that emerged in England and France, respectively, the common law and civil law systems, had their origins in the distribution of political power between the king and the landed nobility in the 12th and 13th centuries. In China, the traditional legal system was rooted in the desire first for military survival and subsequently for administering a vast empire, and its later modernization served the purposes of industrialization. For China, these objectives continue to inform its governance and rule, and its administration of justice.


Once a legal system is established it becomes a permanent institutional arrangement and continues to exercise a dominant influence over how society is ordered. There is plenty of evidence that the legal systems the English and French forcibly imposed on their colonies continue to exercise a dominant influence over economic, social, and political affairs.


“One-country two-systems” still requires 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 again and again 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?

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