Melbourne Law School - Theses

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    Political dissent, law and legitimacy in China's Hong Kong
    Clift, Brendan David ( 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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    A conceptual history of recognition in international law
    Clark, Martin ( 2015)
    This thesis presents a conceptual history of recognition. It examines the development of ideas about the nature and meaning of recognition in the writings of British jurists from 1800–1950. After introducing recognition as a recurring metaphysical and ontological problem of international law and ordering, and explaining the focus on British juristic writings (Introduction), this thesis outlines a methodology for writing the history of concepts in international law (Chapter Two). While recent work in international legal history demonstrates a new attentiveness to the problems of historiography, efforts to grapple with these problems have rarely involved direct engagement with historical theory. In urging just such an engagement, this thesis adapts the themes, insights, and methods of conceptual history to the examination of concepts in international law. Conceptual history investigates the development of ‘basic concepts’: essentially contested ideas that are indispensable for political and thought and action throughout a period of time, within a national-linguistic society. This thesis adapts this methodology to guide a focus on juristic texts and their contexts. This forms the thesis’s first contribution to the field, specifically methodological debates in international legal history. It shows that historical theory is of real use in understanding and improving our attempts to grapple with the historiographical problems of international law. The thesis’s second contribution takes the form of a conceptual history of recognition (Chapter 3). In examining how recognition became a foundational idea in international law, as reflected in one important national tradition of juristic thought, this history shows how recognition was used to establish hierarchies of political communities and control entry into international society. Nowhere is this plainer than in the writings of British jurists in the context of the rise and fall of the British Empire. This development proceeded in four strands. In the first strand (1800–1880), generalised accounts of the criteria of recognition that are fixated almost solely on intra-European diplomatic disagreements gradually emerge. During the second strand (1871–85) recognition begins to incorporate ideas of Christianity, civilisation and progress to exclude non-European political communities from entry into the international community. The third strand (1885–1914) furthers this progress-orientation into the period of late colonialism and the ‘scramble for Africa’, shifting the focus of recognition to the technicalities of government and territorial control and, eventually, to a state-centric account that normalises civilisational inferiority into ‘difference’. With the fourth and final strand emerges (1915–50), recognition becomes a basic concept in international law, reflected in intense debates over its meaning and its use to advance or undermine a range of political projects within the League of Nations, including the universalisation of international law, changing modes of imperialism, and the constraint of state action through law. The thesis concludes with brief reflections on why British thinking turns away from recognition in the 1950s. With the collapse of the British Empire, the establishment of the United Nations, recognition is no longer a useful frame for exclusion and marginalisation, as the decolonising world turns to a new international law and self-determination.