Melbourne Law School - Theses
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ItemPolitical dissent, law and legitimacy in China's Hong Kong( 2023-11)Hong Kong’s mass protest movements of the 2010s triggered clampdowns on fundamental rights, the closure of the political system, the denunciation of politically incorrect ideas, and the retreat of regional autonomy in favour of sovereign state power. This research challenges mainstream claims that Hong Kong’s rule of law was in good health during this period. It argues that by 2020 Hong Kong’s once-trusted legal institutions had reached a crisis of legitimacy due to sustained pressure from authoritarian politics. It substantiates the argument via an examination of law’s interactions with, and responses to, political dissent. Legitimacy, the extent to which an entity rightfully exercises its power, is central to the thesis. Drawing on literature on political legitimacy, democracy and authoritarianism, and the rule of law, I propose an original, multifaceted model for political and legal legitimacy. It comprises two main categories, intrinsic legitimacy and consequential legitimacy—or legitimacy drivers and effects—the presence or absence of which is indicative of an entity’s legitimacy. I posit that democratic systems have greater intrinsic legitimacy, largely derived from consent, and consequential legitimacy, with benefits including stability and liberty, compared with authoritarian systems where dissent and its suppression indicate illegitimacy. Legal legitimacy rests on comparable bases, with adherence to rule of law principles being a particularly important component of intrinsic legitimacy, and consequential legitimacy including rights protection and moderation of executive authority. Chapter 1 introduces the research and provides background on Hong Kong. Chapter 2 explains and justifies the analytical framework and outlines the legitimacy models of China and Hong Kong. The next four chapters are case studies of conflict, whereby political dissent triggering a politico-legal state response with legitimacy implications. Chapter 3 examines the use of national symbols to express dissent. It argues that contrary legislation protected an ideocratic authoritarian aesthetic lacking legitimacy in Hong Kong. The courts upheld that legislation in deference to political power, facilitating further repression and diminishing their rights-protection and independent institutional credentials. Chapter 4 considers protests before and during the 2014 protests, then before and during the 2019 protests. It argues that public order legislation, police conduct and political intransigence were contrary to norms and expectations shared by Hongkongers and the international community. The courts’ inconsistent record upholding protest freedoms and regulating contentious politics diminished their authority. Chapter 5 charts the state’s efforts to close down political opposition, demonstrating a retreat from democratic to authoritarian political ideals. In the face of executive power, the courts were unable to maintain their independent authority, and their rationalisation efforts rendered them agents of state authority. Chapter 6 completes the picture of a judiciary powerless to limit the state’s deployment of exceptional measures despite the excessive nature and popular rejection of those measures. The thesis concludes that Hong Kong’s legal apparatus, under pressure from authoritarian politics, wavered in its commitment to upholding rights and regulating power, detracting from its legitimacy, while fidelity to law’s technical requirements in furtherance of a repressive, undemocratic political agenda was also damaging to legal legitimacy.
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ItemAn Empire of Conduct: On the Jurisprudence of Criminal Procedure( 2020)Criminal procedure describes the conduct of lawful conduct. This thesis addresses how criminal procedure came to be the preponderant way through which the conduct of law was expressed and represented. A jurisprudential shift in procedure was accompanied by the recruitment of the criminal law into the administration of the British Empire. The argument of the thesis is that this emergence and subsequent transformation is a product of the practical involvement of a series of jurists of criminal law with imperial administration. These jurists include Jeremy Bentham, Thomas Macaulay, Henry Maine, and James Fitzjames Stephen. The thesis follows the jurisprudential writings of these thinkers and their involvements with various styles of imperialism to re-describe their contributions to the development of criminal law in light of this proximity to the government of empire. 'An Empire of Conduct' argues for an increased sensitivity to criminal procedure in thinking about the conduct of empire and the government of lawful conduct. Procedure describes not only how the rules of law apply to those subject to them, but also how those procedures were part of a process to re-organise the holding of office in the administration of law, colonies and government. To this end, the thesis looks at criminal procedure as an example of governmentality, concerned with how styles of conduct, rule and administration were shaped and then in turn shaped the holding of public office. By paying attention to questions of officeholding, it argues that the office of the jurist changes its political valence with respect to procedure: the thesis narrates changes in authorities, autonomies and privileges of office as the ascendency of legislative form, and how hierarchically imposed rules of official and juristic conduct contribute to changes in how law is administered. This thesis contends that criminal procedure is best understood as first inspired and then refined through jurists’ involvement with imperial administration, and simultaneously, as a vector for the development of strategies of government that both facilitated and constrained the emerging British Empire. As a jurisprudence, it accounts for a relationship between procedure as a mode of conduct that standardises the administration of law while providing an idiom for styles of modern government. To this end, the economic structure and material technologies of empire impose themselves in this story: as shipping, commodities, and labour all pose questions that a steadily accreted know-how of procedurally organised criminal law is increasingly marshalled to address.