Lectures 1 and 2 Introduction and legal system

LLAW3007 Principles of Law Lecture 1: Introduction and the Hong Kong Legal System

Introduction

  • What is law?

    • Law is a system of rules that helps maintain order, protect individuals, punish criminals, and ensure compliance with legal standards.

  • Why study law?

    • Understanding law is crucial for maintaining order and maximizing personal benefits.

What is a Legal System?

  • Definition: A legal system is a collection of laws within a defined geographical area where law is created, interpreted, and enforced (DK Srivastava).

  • Characteristics:

    • Collection of laws

    • Involvement of institutions for legal processes

    • Underlying ideologies and legal philosophies

    • People involved in lawmaking, interpretation, and enforcement

    • Cases play a critical role in the legal system.

  • Law Creation:

    • Created by the Legislative Council

    • Enforced by courts and police.

Functions of Law

  • Creates social and economic stability.

  • Ensures fairness and promotes changes in social values.

  • Regulates and controls human behavior, setting standards of acceptable conduct.

  • Resolves conflicts between individuals and entities.

Importance of Law in the Commercial World

  • Contract Law: Governs agreements in business transactions.

  • Commercial Law: Regulates business transactions and economic relationships.

  • Company Law: Addresses the formation and management of companies.

  • Employment Law: Defines employer-employee relationships.

  • Intellectual Property Law: Protects creators' rights, e.g., copyright law.

Types of Legal Systems

  • Common Law System:

    • Originated from English law, based primarily on court decisions and precedents (stare decisis).

    • Examples: United Kingdom, United States, Australia.

  • Civil Law System:

    • Based on codified statutes, less emphasis on judicial precedent (only laws enacted by the legislature are binding).

    • Examples: European countries, Latin America.

  • Religious Law System:

    • Laws are based on religious texts and practices.

    • Example: Islamic law.

Common Law System

  • Definition: Law developed through judicial decisions, emphasizing the doctrine of precedent.

  • Doctrine of Precedent:

    • Vertical Stare Decisis: Lower courts are bound to follow decisions of higher courts.

    • Horizontal Stare Decisis: Courts of equal status are generally bound by prior decisions.

  • Applicable Countries:

    • Practiced in: Ireland, UK, Australia, India, South Africa, Canada (excluding Quebec), and USA (excluding Louisiana).

    • Mixed legal systems in Pakistan and Nigeria where common law is incorporated with religious laws.

Civil Law System

  • Source of Law: Codified statutes and legal codes are the primary sources.

  • Characteristics: Judicial decisions do not set precedents, only apply written law.

Legal Procedures

  • Inquisitorial vs. Adversarial:

    • Inquisitorial (Civil Law): Judge actively investigates and collects evidence.

    • Adversarial (Common Law): Each party presents evidence and arguments; the judge acts as an impartial referee.

  • Example from Islamic Law: Prohibitions based on religious tenets (e.g., alcohol consumption).

Unique Aspects of the Hong Kong Legal System

  • One Country, Two Systems: Post-1997 transition to being a Special Administrative Region (SAR) of China.

    • Maintains English common law for 50 years post-handover under the Sino-British Joint Declaration.

  • Role of Common Law:

    • Hong Kong's legal system is predominantly based on common law principles.

  • Doctrines:

    • Stare Decisis applies, meaning decisions made by higher courts bind lower courts.

    • Ratio decidendi (the reason for the decision) is binding; obiter dictum (comments not essential to the decision) is persuasive but not binding.

Court Structure in Hong Kong

  • Hierarchy of Courts:

    • Court of Final Appeal

    • Court of Appeal

    • Court of First Instance

    • District Court

    • Magistrates’ Courts.

  • Special Courts include Small Claims Tribunal and Labour Tribunal for specific matters.

Regulatory Authorities

  • Authorities include:

    • Hong Kong Monetary Authority

    • Securities and Futures Commission

    • Hong Kong Stock Exchange

    • Financial Reporting Council

    • Insurance Authority.

Sources of Law in Hong Kong

  • Principal Sources:

    • The Basic Law (Foundation of laws in Hong Kong).

    • National laws applicable to Hong Kong (limited to defence and foreign affairs).

    • Locally enacted laws (legislation).

    • Common law and equity principles.

    • Customary laws retaining Chinese customs.

Classifications of Law

  • Criminal Law: Defines crimes and administers punishment.

    • Rationale: Protects public order, presumption of innocence.

    • Standard of proof: beyond a reasonable doubt.

  • Civil Law: Governs rights and obligations among individuals.

    • Standard of proof: balance of probabilities.

    • Includes: property law, family law, contract law, tort law.

Work of the Judiciary

  • Courts interpret statutes, maintaining legislative intent.

  • Statutory Interpretation Approaches:

    • Literal Rule: Words are interpreted in their plain meaning.

    • Golden Rule: Adjusts literal interpretation to avoid absurd outcomes.

    • Mischief Rule: Identifies the law's intended purpose.

  • Unified Approach: Incorporates all methods to ascertain legislative intent.

Legal Profession in Hong Kong

  • Divided into solicitors and barristers:

    • Solicitors: Limited rights of audience, handle legal documentation and advice.

    • Barristers: Unlimited rights of audience, specialize in litigation and oral arguments.

Summary

  • Law is essential for social order and justice.

  • Understanding various legal systems is crucial, especially in the context of Hong Kong's unique legal environment.