From Legal Pluralism to Dual State: Evolution of the Relationship between the Chinese and Hong Kong Legal Orders

(2022) 16(1) Law & Ethics of Human Rights 99–135 https://doi.org/10.1515/lehr-2022-2004

University of Hong Kong Faculty of Law Research Paper No. 2022/57

27 Pages Posted: 1 Dec 2022

See all articles by Cora Chan

Cora Chan

The University of Hong Kong - Faculty of Law

Date Written: May 01, 2022

Abstract

This article provides the first-ever comprehensive analysis of how the relationship between the Chinese and Hong Kong legal orders has morphed in nature since China’s resumption of sovereignty over Hong Kong in 1997. It argues that the relationship has evolved from a form of legal pluralism found in the European Union to a monist but bifurcated system—to a “dual state,” to borrow from Ernst Fraenkel’s theory. Recent events, including Beijing’s imposition of a national security law on Hong Kong and its overhaul of Hong Kong’s election methods, have consolidated that evolution. The analysis herein not only enables us to make sense of the developments in the China-Hong Kong relationship, but has five wider theoretical implications. First, it suggests a way of distinguishing a dual state from a fully liberal legal system. Second, it discerns the similarities and differences between legal pluralism and dual state. Third, it connects the literature on theories of legal order and that on the dual state. Fourth, it clarifies the relationship between theories of legal order and regime types. Finally, Hong Kong’s experience reveals the challenges of and potential mechanisms for maintaining liberal values in an authoritarian regime.

Keywords: China, Hong Kong constitutional law, legal pluralism, 'one country, two systems'

Suggested Citation

Chan, Cora, From Legal Pluralism to Dual State: Evolution of the Relationship between the Chinese and Hong Kong Legal Orders (May 01, 2022). (2022) 16(1) Law & Ethics of Human Rights 99–135 https://doi.org/10.1515/lehr-2022-2004 , University of Hong Kong Faculty of Law Research Paper No. 2022/57, Available at SSRN: https://ssrn.com/abstract=4288387 or http://dx.doi.org/10.2139/ssrn.4288387

Cora Chan (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01296

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