Basic Law

“ At the meeting, Mr Ji reiterated that the policies of the Chinese Government regarding Hong Kong would remain unchanged, and that they would propose to the Standing Committee of the National People's Congress that the consultation period for the Basic Law (Draft) in Hong Kong be duly extended, whereas the date for submitting the Basic Law to the National People's Congress for examination and endorsement would not be changed. ”

“ It is reported that less than one per cent of the population in Hong Kong have read the Draft. Hence, it is impossible to request people in Hong Kong to express their opinions on the Basic Law systematically.
5.3.2.5 The CCBL has not altogether denied the function of public opinion polls. Its main consideration is whether it is appropriate to have a opinion poll conducted by itself. Members of the public as well as other organizations may conduct opinion polls individually. And the CCBL will convey faithfully those results it receives to the Drafting Committee. ”

“ The Basic Law is drafted for the next 50 years and momentary feelings should not be allowed to jeopardize future long-term development.
5.5.2.2 As the general public lack in-depth understanding of the Basic Law, the results of a public opinion poll may be biased.
5.5.2.3 It is not advisable to limit the scope of the survey to the part on the political structure and neglect the other sections and chapters. The existing political models all have their strong points and weaknesses. ”

“ Publicity and explanation of the Basic Law is important to the collection of opinions. Regarding the publicity programmes for this round of consultations, the CCBL having benefited from last year's experience in the first round of consultations continued to adopt some of the more effective forms of publicity. It has also improved and supplemented these forms in accordance with the characteristics and conditions of this round of consultations to achieve better results. ”

“ It is most unfortunate that the Hong Kong public have been denied a chance of meeting them.
In the whole process of drafting the Basic Law. the drafters are naturally the ones who contribute the most and work the hardest. Likewise in the consultations on the Basic Law, our advisers and members are the ones who contribute the most. ”

“ In addition to the seminars and discussion sessions organized by the CCBL, organizations of various sectors also held different Basic Law-related promotional and consultative activities in accordance with their own characteristics and needs. ”

“ Rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law. In the maturity of law they are employed chiefly in situations where there is exceptional need of certainty in order to uphold the economic order. With the advent of legal writing and juristic theory in the transition from the strict law to equity and natural law, a second [Pg 116] element develops and becomes a controlling factor in the administration of justice. ”

“ We can see the policeman on his beat, or the judge in court, or the members of the legislature—the men who, respectively, maintain, administer, and make the laws; and we can see the record of the laws in books. But the idea or principle of Law which has caused men to construct all this machinery for the making and enforcing of the laws, exists only in the mind. ”

“ Other submissions with no address have also been processed. The eight submissions which require to be kept confidential are all from individuals.
5. Among the submissions from individuals or groups of individuals, 2,807 are pre-printed letters and for the majority of them the source is not indicated. Letters with identical contents (with the opinions on the Basic Law (Draft) , suggestions for amendment or the choice of a particular proposal clearly listed, and the supporters being asked to sign and provide their personal data ”

“ But the essential questions are: (1) whether we are entitled to distinguish the rights and obligations which are anywhere actually enforced by law from rights and obligations which really exist though not enforced; and (2) , if we are entitled to do so, what is to be our criterion of rights and obligations which are really valid, in distinction from those that are actually enforced.
9. No one would seriously maintain that the system of rights and obligations, as it is anywhere enforced by law,—the 'jus' or 'Recht' of any nation—is all that it ought to be. ”

“ But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains;—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. ”

“ In proceeding to the establishment of laws, you wish to adopt them from ours, and such only for the present as suit your present condition; chiefly, indeed, those for the punishment of crimes, and the protection of property. But who is to determine which of our laws suit your condition, and shall be in force with you? All of you being equally free, no one has a right to say what shall be law for the others. ”

“ How striking and instructive to observe the abstract rules of justice brought to bear, with equal readiness and precision, upon ordinary and extraordinary combinations of circumstances!—to witness the dead letter of the law become animated with potent vitality for the regulation of human affairs! ”

“ The State has the power to make concrete and to determine the provisions of the natural law that are abstract or general. Example: The natural law decrees that some form of government be set up, that the people contribute to the support of the government, that crimes be punished, that the general welfare be served, etc.; the civil law determines the special form of government, the manner in which the revenues are to be obtained, the specific penalties for each crime, the public measures that are best suited to the circumstances, etc. ”

“ Speaking of the origin of civil power and the objects of law, he lays down these principles: "The law, strictly speaking, is directed primarily and principally to the common good; and to decree anything for the common benefit belongs either to the whole body of the people, or to some one acting in their place." ”

“ The answer to this question arises out of the above consideration of the means which law employs to obtain the fulfilment of obligations, combined with the view of law as relative to a moral end, i.e. the formation of a society of persons, acting from a certain disposition, from interest in the society as such. ”

“ The nervous language of the Common Law, the impressive forms of our courts and the precision and substantial truth of the legal distinctions, are the contribution of all the sharp-sighted, strong-minded men who have lived in the countries where these laws govern. ”

“ But, perhaps, if there was less Law, there might be more Justice, than in some other Courts; for, if the civil Law be a Law of universal Reason, judging of the Rectitude, or Obliquity of Mens Actions, every Man of common Sense is endued with a Portion of it, at least sufficient to make him distinguish Right from Wrong, or what the Civilians call, Malum in se. ”

“ Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy, and as such interpretation is fundamental, they give direction to all law-making. ”

“ We may well think of this time, as it thought of itself, as a period of maturity of law. The law was taken to be complete and self-sufficient, without antinomies and without gaps, wanting only arrangement, logical development of the implications of its several rules and conceptions, and systematic exposition of its several parts. Legislation might be needed on occasion in order to get rid of archaisms which had survived the purgation of the two prior centuries. ”

“ For the convenience of analysis, we may treat the obligations correlative to rights, obligations which it is the proper office of law to enforce, apart from moral duties and from the virtues which are tendencies to fulfil those duties. ”

“ But, good or bad, as laws in this country are merely the expression of the people’s will, they should be respected as long as they remain laws. For law is just as necessary to the human race as is the air we breathe or the food we eat. ”

“ The two are, in fact, only earlier and later developments of the same social fact, depending for their evolution upon the play of human qualities in the necessary relations of society.
The second great practical lesson which will be taught by comparative jurisprudence is, as I have said, the knowledge of the true relations of custom and law to legislation. Law is the statical, legislation the dynamical side of the same fact. The lawyer studies what is, the legislator what ought to be. The jurist is he who studies what has been, what is, and what ought to be. ”

“ I believe in law and order; but I believe, as a condition precedent, that law and order should be predicated upon right and justice, pure and simple. Law is, intrinsically, a written expression of justice; if, on the contrary, it becomes instead written injustice, men are not, strictly speaking, bound to yield it obedience. ”

“ Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. ”

“ It is a rule founded upon the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty, or property, without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these 'without due process of law' has its foundation in this rule. ”

“ On the other hand, the constitutions of all civilized governments, whether written or unwritten, the principles of the civil as well as those of the common law, and the teachings of wise men of ancient and of modern times, recognize as a duty the protection of individual or selfish interests. They recognize as just and necessary the restraint and punishment of wrong-doers, and the protection of the rights and interests of the individual in person and property. ”

“ Making or finding law, call it which you will, presupposes a mental picture of what one is doing and of why he is doing it. Hence the nature of law has been the chief battleground of jurisprudence since the Greek philosophers began to argue as to the basis of the law's authority. But the end of law has been debated more in politics than in jurisprudence. In the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. ”

“ We may resort to the common law to aid us in interpreting such instruments, and their powers; for that law is the common rule, by which all our legislation is interpreted. It is known, and acted upon, and revered by the people. ”

“ No less service will be rendered by the twentieth-century philosophical theory, whatever it is, which puts the jural postulate of civilized society in our day and place with respect to good faith, and its corollary as to promises, in acceptable form, and furnishes jurist and judge and lawmaker with a logical critique, a workable measure of decision and an ideal of what the law seeks to do, whereby to carry forward the process of enlarging the domain of legally enforceable promises and thus enlarging on this side the domain of legal satisfaction of human claims. ”

“ That the law may be a rule of action, it is necessary that it be known; it is necessary that it be permanent and stable. The law is the measure of civil right; but, if the measure be changeable, the extent of the thing measured never can be settled. ”

“ What the difference may be, and what the consequences of such difference, between this lucrative function, and the true duty of Civil Law,—namely, to fulfil and continue in all the world the first mission of the mightiest Lawgiver, and declare that on such and such conditions, written in eternal letters by the finger of God, every man’s house, or piece of Holy land, is his own,—there does not, it appears, exist at present wit enough under all the weight of curled and powdered horsehair in England, either to reflect, or to define. ”

“ Again, tenth, men have thought of law as a [Pg 66] system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. ”

“ In the formation of the law, regard should be often had to the convenience, to the faculties, to the interests, and to the habits of the citizens, sometimes even to their prejudices, but in the interpretation of it, nothing but justice should be regarded. ”