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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ItemTraditional forms of land tenure in rural China and models for reform( 2018)The plight of farmers in rural China is an issue of fundamental importance in China today, both in terms of improving their living conditions from the perspective of individual farming households and in terms of maintaining social stability and achieving economic prosperity from the perspective of the nation as a whole. Since 1979, when the Household Responsibility System was first trialled, China has made significant advances in terms of increasing agricultural production and lifting its rural population out of poverty. As the liberalisation of the rural economy has gathered pace, however, problems have arisen in relation to rural land use and management. These include inefficiencies in the use of land as a result of small-scale farming; under-utilisation of land as a result of the migration of rural labour to the cities; abusive and coercive practices on the part of local governments and authorities; and irregular and unlawful land dealings. The above problems have implicated law and the legal system and have revealed deficiencies in the legal framework and rules governing rural property rights. To a significant extent, these deficiencies are attributable to enforcement challenges and weaknesses in the courts and other institutions. However, the deficiencies have also been attributed to fundamental structural weaknesses in the design of the land tenure system in rural China. The nature and extent of the deficiencies have been thrown into sharp relief by a series of government policies over the past few years. These policies aim to give farmers stronger property rights and reduce or remove restrictions on the assignment of property rights to encourage the development of a market for the sale and purchase of rural property rights. This thesis evaluates the relevance and suitability of traditional forms of land tenure to reform of rural land rights in China today. The criteria for the evaluation are the official policy objectives of the State, including giving farmers stronger property rights and increasing the scope of rights that famers may exercise. This thesis argues that the traditional forms of land tenure should be considered in the mix of reform options and considers conceptual models for this purpose.
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ItemImplementing international environmental law in domestic environmental management: wetlands of international importance in Australia and the People's Republic of China( 2004)This research utilises interdisciplinary methods to explore ways to improve the practical implementation of international environmental agreements at the local level. International environmental law is widely criticised as being general, aspirational and at worst, unenforceable. This thesis explores, through a specific case study approach why this is so, and what potential means can be employed to improve the implementation of international environmental agreements. Through a detailed exposition of international agreements which Australia and the People's Republic of China (PRC) are parties to, particularly those relating to wetlands of international importance, such as the Ramsar Convention and the China- Australia Migratory Bird Agreement (CAMBA), this research challenges accepted boundaries of traditional legal scholarship, seeking to incorporate a wider range of issues such as political structures, culture and economic realities in-depth. Incorporating top-down and bottom-up approaches, this thesis also showcases two specific case studies of internationally significant wetlands in both Australia and the PRC. This has been done to impart a specific approach to the largely general rhetoric that presently exists in international environmental agreements. In conclusion, it is asserted that a greater specificity of approach and flexibility is required if the implementation of international environmental agreements is to be improved at the national and local levels in both Australia and the PRC.
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ItemThe legal field of policing in China : administrative detention and legal reform( 2004)This thesis examines the impact of the post 1978 reforms in the Chinese legal system on the powers of the public security organs. Specifically, it examines the impact of legal reform on three detention powers imposed administratively by public security organs; detention for education of prostitutes and clients of prostitutes, coercive drug rehabilitation and re-education through labour. These powers are imposed in respect of unlawful behaviour which is viewed as not being sufficiently serious to warrant a criminal sanction. The development and use of administrative detention powers since 1978 has been inextricably linked to the Party-state's social order policy and the institutional structures that implement it. In particular, administrative detention has been influenced by continuing reliance on campaign-style policing: the `Hard Strike' against crime. Viewed in the context of legal reform, administrative detention powers are still poorly defined and almost unconstrained by law. Controversy surrounding these powers is growing, as they are severely abused. Lack of detailed legal regulation has made them increasingly at odds with the more general trend towards legalisation and regularisation of state power. An analysis of reform of administrative detention leads to a pessimistic conclusion about the extent to which law influences the power of the public security organs. Analysis of the processes of legal change, undertaken in this study, reveals a more complex picture. Pierre Bourdieu's concept of the `legal field' is used as a theoretical framework to examine the processes of change affecting administrative detention. The pragmatic policies in the reform era of rule according to law and the Comprehensive Management of Public Order, adopted by the Chinese Party-state to underpin the success of the economic reform program, have facilitated a pluralisation of views about the proper interpretation of these policies and of legal reform of police administrative powers. The emergence of a space in which interested actors compete to determine the law relating to administrative detention is indicative of the emergence of a legal field. While the law produced as an outcome of the contests between these legal actors is not pre-determined, the contests themselves strengthen the reach and authority of law and provide further pressure and logic for reform.
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ItemThe Confucian misgivings : Liang Shu-Ming's narrative about law( 1999)This thesis is about Liang Shu-ming (ikx, 1893-1988), a figure of deep spiritual meaning in the realm of Chinese legal thinking. It aims to explore his thinking concerning law, in particular, his reworking of the traditional Chinese legal ideas in terms of the New-Confucianism. The major intellectual interest throughout this thesis is to offer a study on China's legal legacy, through Liang Shu-ming's eyes. I follow the formula of the parallel between Life and Mind (ll c) , Physis and limos. I will compare Liang Shu-ming's narrative with his own practical orientation and with the theories of other interlocutors. I will put Liang Shu-ming into the social context of modern Chinese history, in particular, the context of the unprecedented crisis of meaning in the legal realm and the collapse of a transcendental source for Chinese cultural identity in the light of modernity. The evaluation provided by my thesis could be helpful in clarifying the deep structures and significance of the present Chinese legal system through historically exploring Liang Shu-ming's misgivings. This thesis consists of three parts. Part I will present Liang Shuming's theoretical concerns about the concept of law, the source and meaning of law in Chinese socio-cultural contextualisations, the interaction between humanity and law, and in particular, limos and the underlying presumptions about the ideal human life and human order. This examination will support the thesis that the necessity of rethinking our legal tradition is derived from the urgency of getting an undistorted understanding about our own way of life itself. Part II will present an analysis of his understandings about constitutionalism, in particular, his critical articulations on the predicaments China has had to face in modifying and transplanting Western models. In order to explain my subject's various characteristics, a comparative analysis of Liang Shu-ming and his contemporaries, in both China and the West, will then be used to clarify the nature of constitutionalism, as a foreign body, in a place like China. In Part III, Liang Shu-ming's comparative insight about the Western legal tradition and spirit, and his attitude to and rationale for the conceptual and institutional transplantation of Western law in China, will be articulated. Here Liang Shu-ming unveiled a paradox beneath the process of so-called modernization by drawing inspiration from the West in modernizing China. That is to say, China has been facing a dilemma: either the refusal to imitate or the merely horizontal transplantation. He argued neither of them would be healthy for China. While refusal would result in something definitely worse, a simple horizontal transplantation would also be harmful. The intrinsic tension underlying this dilemma has consequently perplexed the legal shaping process in modern China. In the Conclusion, the creative tension between life and mind, limos and Physis as symbolism and substance will again be reflected in China's quest for the "new law". If a conclusion could suggest itself, however, it would be, "A Code is not at once a history and a system", but, "Our history is our code."
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ItemJurisprudential and cultural perspectives on the implementation of procedural justice in administrative law in the People's Republic of China( 1999)Initially, this thesis represents a theoretical argument about the values of procedure in different social settings. In particular, it explores the implications of such concepts as democracy, justice, efficiency and social stability from a procedural perspective. The argument shows that the role of procedure is indispensable to the concepts. Then the thesis specifically examines the role of procedure in ensuring justice and legality in the administrative state through a comparison between the Civil and Anglo-American legal traditions. In the context of China, the thesis shows that the underdevelopment of fair legal procedures in ancient China relates to the intention of ancient Chinese law, fa, and its tradition of li and 'non-litigation' (wu song). From the transformation period of Chinese law, dating back to the middle of the nineteenth century, the concerns about independent procedural laws in China increased. This was evidenced by the corresponding legislation drawing on the ideas and experiences of Western countries in both the late Qing dynasty and Republican China. In the People's Republic of China, the modernisation and Westernisation of Chinese law encountered a setback for decades. Legal instrumentalism prevailed. Procedural law was seriously underestimated. From the late 1970s, Chinese lawyers began to rebuild the legal system following a series of economic and ideological changes caused by a social reform. However, law cannot be implemented without the means to do so. Thus the lawyers began to highlight the role of procedural laws in overcoming the impact of legal instrumentalism. The thesis applies the initial theoretical argument to a discussion of the role of procedure in ensuring administrative legality in the People's Republic of China in view of Chinese tradition, its modern situations and contemporary experiences. The focus in this context is the necessity and possibility of enacting a comprehensive administrative procedure Act. Looking at the experiences of Western countries and the existing features of Chinese legislation, it suggests that the best way to provide a procedural framework for administrative activities in China is to selectively and separately codify the procedures. Finally, a conclusion is drawn on the whole.