Thursday, 20 December 2012

Conceptions: Rule of Law Pyramid by Associate Professor Benny Tai, HKU

Professor Benny Tai of University of Hong Kong, in his book 法治心:超越條文與制度的法律價值 The Passion for Rule of Law: Values beyond Legal Text and Legal Institutions, considers rule law in four levels of progress [1]:

(1) Existence of law 有法可依

  • Laws of the legal system must satisfy certain qualitative requirements: generality, publicisedstability, clarity, non-retroactivity, non-contradictory, against impossibility, against arbitrariness and general congruence of law with social values.
  • Laws must also have covered major areas of human activities

(2) Regulation by law 有法必依

  • The sovereign adopts law as the major governing tool.
  • Officials are commanded to apply laws in governing though there is still only internal mechanism to ensure officials’ compliance with law.
  • Public order is basically maintained.
  • Disputes in the society are mainly resolved through peaceful and legal means.

(3) Limitation from law 以法限權
  • Law imposes external limits on the exercise of governmental powers through various channels including limitation by separation, constitutional limitation, administrative limitation, judicial limitation, political limitation and social limitation.
  • The government and its officials and agents are accountable under the law.
  • Corruption must have been substantially contained.
  • Competent, independent, and ethical adjudicators, attorneys or representatives provide access to justice.

(4) Justice through law 以法達義
  • Law serves justice of different conceptions including procedural justice, civil rights justice, social justice and deliberative justice (the ability for public to meaningfully participate in the law making process).

[1] 戴耀廷Benny Y.T. Tai, 法治心:超越條文與制度的法律價值 The Passion for Rule of Law: Values beyond Legal Text and Legal Institutions (Hong Kong Educational Publishing Co., 2012) [Chinese]