Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions

by Orlan Lee*

(2004) Oxford U Comparative L Forum 5 at ouclf.iuscomp.org | How to cite this article

Abstract: Systems Dynamics in the Law

“A decision-making body exercising public functions, which is entrusted with a discretion, must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases. It may not ‘fetter’ its discretion.”1
De Smith, Woolf and Jowell

The present paper takes a fresh look at the issues of certainty of law and the problem of reviewability of past decisions. The author draws on experience in teaching law to students from exact sciences, required to study business law or intellectual property principally for professional certification purposes. They seek knowledge of the law in order to enhance their business and administrative skills and in order to deal with legal issues in a business and professional environment. While they look for exact rules, they find that even daily occurrances require exercise of judgment. The paper is also concerned with those in administrative agencies charged with implementing public policy, who seek to implement exact rules, but who may, even unwillingly, have to exercise discretion.

The author’s response is that law would be more comprehensible to students of a quantitative discipline if they did not take the concept of law as command as their point of departure. Rather, as with mathematical subject matter, they might begin with a concept of law as a system susceptible to logical analysis, where rules of law are bound by rules of systems logic. The aphorism that “The life of the law has not been logic” but “experience” never meant the converse, that is, that law is not logical. The elements of the discipline of the law are systematically interrelated. Lawyers will know that it is not always possible to provide absolute rules and fixed responses. Law as a discipline requires legal reasoning to be consistent with law as a whole system that subsumes within it not only legal principles, written and unwritten, but also intent and purpose, equity and discretion.

The last thing the author wants to suggest, by reference to systems dynamics, is that there is anything in legal decision-making that is simply quantifiable—nor, that legal decisions can be made by putting the data (the facts and the rules) through a computer. Facts must first be determined; rules may not be exclusive rules; and basic rights cannot be ignored. However, applying the logic of mathematical systems can also be fruitful in legal reasoning. Primarily, it emphasizes that the particular law of the case is also subject to the “feedback” from the whole system of the law. Black-letter rules are not always exhaustive statements of the law. And where the result tends to be absurd or overly harsh it may require rethinking in terms of reasonableness and due process.

1. A Comparative Approach in the Common Law

“Every legal system seeks to achieve three purposes…, to secure justice, to promote the common good, and to provide for certainty of law. In English law, the goal of certainty of law comes first. Not certainty through the law, that is it is not security against breaking the law that is intended here. Rather, it is the certainty of the law itself. The requirement here is two-fold: that law not be subject to conflicts of opinion, but rather that the law be authoritatively laid down. That is to say that there is positive law, that this positive law be clear and determinable beyond doubt.”2
Gustav Radbruch, The Spirit of English Law

A. Stare Decisis and Certainty of Law vs. Reviewability of Past Decisions

The author had come to the law from East Asia studies. Therefore, he eagerly accepted an offer to teach business law and intellectual property in Hong Kong. The students were business and engineering students who were required to take these courses for professional certification. Their preparation for university had relied heavily on a tradition of transmission of exact information suitable for exact assessment in standardized testing. Nothing seemed to disturb them more about the traditions of law teaching than the legacy of re-examining decisions once made to determine whether or not they would have been made the same way a second time. Obviously the perspective from which Sir Karl Popper had argued, that scientific certainty advances by way of “conjecture and refutation”,3 had not made much headway in a school of pedagogy that rested upon the absoluteness implicit in standardized testing.

However, not only students trained in a pedagogy that puts more emphasis on subject matter suitable for assessment by standardized testing, than on reasoning powers, are among those calling for certainty in the law. There is a long tradition of stare decisis in the common law itself. That is, that we should follow legal precedent so that we may rely on principles, soundly established on material facts in one case, being followed in similar future cases.4 The doctrine applies according to the hierarchy of the courts, the lower court being bound to follow the higher. Because of the doctrine of stare decisis, the role of precedent is stronger in the English common law than it is in the civil law traditions—therefore, the civil law lawyer may not be disturbed at reaching what appears to be a conflicting result in any given case, because he believes that the decision follows the law not the cases. Common law courts do not hesitate to fill in the gaps of the law. Lawyers and the public then follow the “case law”.

Some call this “judge-made law”. But, the historical perception is a little different. Common law courts are presumed to attempt to follow the law where it can be found, whether written or unwritten, but also to apply it according to a concept of justice in keeping with the times and the situation. This, perhaps somewhat self-deceptive tradition, was once very eloquently described, with remarkably progressive language for its time, by a learned senior judge of the English Court of Appeal:

… judges cannot make new law by new decisions; they do not assume a power of that kind: they only endeavour to declare what the common law is and has been from the time when it first existed. But inasmuch as new circumstances, and new complications of fact and even new facts, are constantly arising, the judges are obliged to apply to them what they consider to have been the common law during the whole course of its existence and therefore they seem to be laying down a new law, whereas they are merely applying old principles to a new state of facts.5

It can be seen that these words can be understood to be both reactionary and progressive, depending on who applies them. They attempt to reach back to “what the common law is and has been from the time…it first existed”, and also attempts to account for “new circumstances,…new complications of fact and … new facts,” consistent with a timeless concept of justice—not consciously to be tied to an outdated past, and certainly not promotive of dramatic change.6

The longstanding doctrine of reliance on precedent has colored the history of the common law wherever it is practised, and wherever its influence reaches. “Every legal system seeks to achieve three purposes,” a German legal theorist writing on the history of English law tells us, “to secure justice, to promote the common good, and to provide for certainty of law.”7 “[T]he goal of certainty of law comes first,” in English law, he tells us, not simply certainty against breach of legal rules so much as the certainty of the law itself. There is a presumption in the history of the common law that unwritten law is already there prior to any legislation, which may, of course, modify, amend, or supersede it. The law we follow, and which protects our rights and interests, is presumed to come down to us from time immemorial in the case precedents. Departure from precedent, therefore, appears to be almost like departure from those principles themselves.

If those precedents are principles worthy of our continuing respect, we ought to be able to arrive at the same conclusions if we re-think the solutions of the problems. For that very reason, we should be disturbed if upon re-thinking solutions, we do not reach the same conclusions. Thankfully, the rigidity that English law seemed to have fallen into in the 20th century, and that Radbruch only touches upon in his paper that dates from 1946, has eased significantly—at least in the literature. The position taken by Lord Denning in a number of his decisions or dissents, and summarized in the Romanes lecture,8 in which he advocated that the House of Lords return to a policy of re-thinking its own precedents when they become legally questionable (something they had not done for 60 years) certainly played an important role in this development. His judgments and dissents argued that unreasoning reliance on precedent alone seemed to conflict with the mandate for the courts to seek to justify a decision, not simply adopt one blindly from the past.

Lord Denning must have been one of the most courageous of English judges of recent times, yet, even he felt compelled to quote from a precedent case already 90 years old at that time, in order to make this point in Candler v Crane Christmas.9 Moreover, the reader will also perceive that the perspective Radbruch characterizes has by no means vanished from the profession, the courts, or government administrative agencies.

It was not always unheard of for a higher court to change its mind. However, in 1898, the House of Lords did bind itself to its own precedents, it thought, in the interest of certainty of law and of avoiding unnecessary litigation over the same points.10 Yet, however, noble the motivating purpose, the doctrine did contribute to an already existing rigidity in the law. In the years in which Lord Denning was Master of the Rolls from 1962-1982, and even before that,11 he attempted to test the waters for reversal of that position on a number of occasions, particularly where he considered that a precedent decision was decided wrong in the first place.12 Thanks largely to these efforts—and despite reproaches from leading law lords for the departure from judicial discipline this sometimes entailed—the House of Lords did relax its position in its “Practice Statement” in 1966.13

Nevertheless, if precedents do represent principles worthy of our continuing respect, we ought to be able to arrive at the same conclusions if we re-think the solutions of the problems. For that very reason, we should be disturbed if upon re-thinking solutions, we do not reach the same conclusions. In any event, there are basic assumptions, or propositions, that can and must be made to enable us to rely upon the system of law as a reasoned one and not simply as a set of orders. It is some of these, which are set out below.

Individual judges may reflect different attitudes or approaches in their decisions. But courts in general are presumed to be following a consistent tradition of interpretation and application of the law. The thoughtful and disciplined approach to statutory interpretation revealed in the study of such decisions has been demonstrated in a number of learned and very diverse texts.14 This essay merely attempts an outline of an implicit sense of purposiveness and logical unity embodied in the tradition of the law, but also in studies of statutory and judicial interpretation such as those cited. Those forces have gained strength in recent years, re-emerging in many notable leading decisions. On the other hand, the reputation for rigidity in English law, and in its colonial legacy, has not dissipated. I believe, however, that greater responsiveness can emerge in the law where the principles that we learn from the tradition of legal and statutory interpretation are followed.

In this paper, I have attempted to illuminate the role of certain propositions that, I believe, follow from the tradition of interpretation. These propositions are, therefore, NOT rules of law. They are a search for common sense rules of logic, or the implicit application of a sense of Legal Dynamics:

In the decision-making of the courts of Hong Kong: a jurisdiction which owes formation of its outlook, both in the judiciary and administration, to a somewhat rigid colonial legacy, which nowadays can also be seen to attempt slowly to adjust to a new situation in common law legal thinking;

In the courts of England, where the reader will see from recent decisions and authorities cited below, that many of the rigid notions of a hundred years ago are now history (as Lord Devlin describes in the quotation at the head of the following section), and decisions have evolved to meet such challenges as, for example, arise from the numerous new functions that government has taken on in recent years and integration into European Community law. These decisions will also be a guide to legal unification of the courts of the rest of the common law world; and

In more recent decisions in the courts of the United States: There, particularly in the areas of intellectual property and information technology law—decision making on the frontiers of the law—which must inevitably impact on the thinking of courts in the entire common law world.

B. Some Common Sense Propositions on Legal Dynamics

“When Tom [Lord Denning] and I were young the law was stagnant. The old-fashioned judge looked to the letter of the statute and for the case on all fours. He knew that he had to do justice according to law. Either he assumed that the law when strictly applied would always do justice or else he decided that, if it did not, it was not his business to interfere. Today this is not the idea. No statement of the law, be it a precedent or a statute, is ever final: it is to be read in its context and its context can change. A judge must never assume that the law always and in all circumstances does complete justice. That would be an impossible task to put upon any lawmaker. To do justice according to law the judge must keep his eye on the justice of the case as well as on the text of the law.”15
Lord Devlin

An American law graduate teaching English law as received in Hong Kong might naturally be left wondering at times how concepts of law had evolved so differently for these three jurisdictions from principles we all believed were held in common. Cases one would not have read in an American law school revealed that there had been considerable progress in English law in recent years, that was still unmatched in American law, which was generally considered the more progressive. At the same time, these same views cited in Hong Kong courts only served to make the colonial legacy there, to which they responded, appear more rigid. Conspicuous in all three jurisdictions was the desire of administrative agencies to read literally only those sections of the law most favorable to their own advantage. That leads the author to argue here that there are certain common sense propositions that one can make about the law, which, while they are not law by themselves, would enable an agency official, or a court, or even a well-programmed computer, to provide more well-rounded judgment.

“If it is ‘law’, it is binding,” you will say, “so what does ‘common sense’ have to do with it?” It is fashionable in some circles to belittle “common sense” as only naïve impression unaided by the scientific mind. Yet, that is only the figure of speech of those who purport to be able to speak with the benefit of some presumably exact authority. Needless to say that is not the “common sense” that is intended here.

If I am compelled to define the term “common sense”, however, then, “common sense”, is used here for the common understanding of what is also implied about the definition of the word “law”, when we say that there is a “body of law”, or a “system of law”, which, as Roscoe Pound once described it, “shows us how to fill in the gaps in laws”.16 “Law”, whatever the technical definition we choose, implies that the content of it is “binding”. By “body of law” or “system of law”, I intend to refer to not one principle or statute, or rule that is binding, but all such principles, or statutes, or rules which apply, and are binding, at the same moment in any given jurisdiction.

How does “common sense” enter into it? What I suggest is that it is “common sense” to mean certain things about the condition that applies when we say that there is a “body of law”. One of those “common sense” things is that, if there is a “body of law”, no one principle, or statute, or rule of law, applies independently of all the rest of the principles, statutes, or rules—unless, of course, it is to the extent that one of those principles, statutes, or rules expressly modifies, limits, amends, or, perhaps, repeals, another.

In brief, what I am calling “common sense” here is making the linguistic assumption that to speak of a “body of law” is to declare that all of it applies at the same time. There are also other linguistic—or, shall we say “common sense”—consequences. For example, we can not willfully disregard all other principles, statutes, or rules of law, in order to apply any one of them, selectively. If we accept that all principles, statutes, or rules, apply at the same time, then they all modify, extend, or limit, one another. And, perhaps, we can discover some greater expression of “intent” or “purpose” in the whole “body of law” than is, or can be, expressed in any one principle, statute, or rule.

Lon Fuller once said of the need to articulate such a long and obvious explanation—in reply to H.L.A. Hart’s theory of positivism—“I should have considered all these remarks much too trite to put down here if they did not seem to be demanded in an answer to the theory … that … implies we cannot have fidelity to law … unless we are prepared to accept [in that case, Hart’s legal positivism].”17

It is only Fuller’s turn of phrase that I am adopting here, not his legal philosophy. Yet, there may be some closer kinship when I say that the foregoing linguistically logical statement has other linguistically logical, or “common sense” consequences. Fuller was, after all, concerned that adopting Hart’s positivist view of the literal meaning of the “words” of any given principle, statute, or rule of law—must entail abandoning consideration of the “purpose” and “structure” within which those “words” were found. As the following will demonstrate, I do not hesitate to accept, as both Fuller and, on other occasions, Hart, presumably would have, that “legislative intent” and “purpose of law” are frequently manifestly included in legislation or in decisions in which the law is interpreted by the courts. It is to these often unspoken “linguistically logical consequences” that I refer to as “propositions” of legal dynamics.

Over the past century, there have been a number of attempts to study interlocking and purposive natural, social and conceptual “systems”. I believe the body of the law and the discipline of law, as it embodies the standards and traditions of interpretation, can also be included in such a system. More will be said about the origins of the “systems” approach below. In the 1940s Norbert Wiener and his associates chose the term “cybernetics” for the field of systems research where “information, feedback, and control” were taken as characteristics, not only of man made physical, or engineering systems, but also of biological systems, and abstract intellectual systems including language.18 In later years, Professor Jay Forrester of M.I.T. pioneered what he called the field of “system dynamics” for the study of interrelationships and interactions within social and abstract systems. The Society that he founded with colleagues of like mind defines this aspect of the “systems” approach as follows:

System dynamics is a methodology for studying and managing complex feedback systems, such as one finds in business and other social systems. In fact it has been used to address practically every sort of feedback system. While the word system has been applied to all sorts of situations, feedback is the differentiating descriptor here. Feedback refers to the situation of X affecting Y and Y in turn affecting X perhaps through a chain of causes and effects. One cannot study the link between X and Y, independently, the link between Y and X predicts how the system will behave. Only the study of the whole system as a feedback system will lead to correct results.19

Recognition of the importance of this kind of interactivity and feedback in the operation of legal dynamics should also have contributed to the increased role of legal dynamics in the decision-making functions of the law. There has in fact been increasing application of various forms of information technology, that can make it easier to track these interactions, in the practice and administration of the law in the past decade.20 However, the general tendency of decision sciences and decision support groups has naturally been to concentrate on advanced engineering models, analysis techniques, efforts in the direction of artificial intelligence, etc., applications leading to computer processing of data on the basis of theoretical models. The thesis advanced in the following is, however, not that legal decision-making would be better served by computer processing. Rather, it is suggested that “legal science” itself is an “information system”, that applies Facts and Rules according to established patterns, that constitute the “legal dynamics” of a discipline of decision-making.

Unquestionably, the technology that has appeared in the last two decades enables the current law practitioner to accomplish feats of research and documentation that would have required staggering efforts to match in previous generations. But, with respect, those who depend on “the use of technology” should not neglect that the key to understanding the underlying technology in law is in the discipline of the law itself. The law is rules— for which the data, the facts and issues, can be supplied and processed. The law is also judgment—through which the rules must be held to the facts, and both facts and rules must be weighed to determine how each applies in given circumstances.

If legal decision-making were merely embodied in the exercise of legislative power, for example, it might appear that judgments, once embodied in statute, had been made once and for all. If, on the other hand, legal decision-making is conceived of as in pursuit of the goal of what is fair, just, and reasonable, as well as to determine whether there is any particular rule or legislation that governs in the area, it is arguable that judgment may, from time to time or from situation to situation, change with regard to what is called for in respect to rules and legislation. The problem remains whether we allow our reasoning powers to become “fettered”21 by prior judgments, or by judgments along the way, that we later come to question.

The judicial “doctrine” (cited at the head of this paper) that an agency that has discretion must also exercise discretion (presumably considering anything else in the body of the law that is favorable to the individual, as well as the literal reading of the particular controlling statute) has to have been revolutionary in Britain. De Smith, Woolf and Jowell appears to be the leading source in the literature, in a revision under the authority of now Lord Chief Justice Woolf. It is invoked even down to the level of the law examiners. It appears to be widely cited in the Commonwealth. It is also cited by the courts in Hong Kong as authoritative—although agencies there disregard it with impunity. But, such a doctrine is completely unheard of in the United States, where the Supreme Court has effectively adopted the position that it will not interfere where the agency has discretion. And, agency “discretion” there only means agency policy pure and simple.

Of course, if an agency should exercise its unfettered discretion, considering everything relevant also favorable to the individual, this could also be done by a computer programmer. But, there is the pitfall. The programmer, or whoever determines what gets programmed, practically has to have the qualities of a disinterested senior lawyer in order to put into the balance of what gets programmed, all that must be considered. Otherwise, the role of “law programmer” (or agency official) will go the way of the educational technologist (in section 2 below), whose only understanding of education technology is the memory aid.

Professor Craig W. Kirkwood has summarized the results of statistical assessment of comparisons of applying system dynamics models to decision-making with those of experts in the field, and finds, similarly, that the system model results to have been as good or better than those of the experts—except where expert opinion is needed to set up the models:

The research discussed … carries an optimistic message for those of us who work on quantitative models. Even simple quantitative models can outperform experts in prediction tasks. However, the research also points out that experts play a key role in developing such models: They are needed to identify the key variables to incorporate into a model.

The research also carries a cautionary message for those working on developing computer-based expert systems. The generally stated criterion for judging the effectiveness of such systems is how well they replicate the performance of an expert. However, the research indicates that at least in prediction tasks it is possible with even simple models to outperform experts once the key predictor variables have been identified. Thus the performance of experts may not be a good benchmark for judging the performance of a computer-based expert system. It is probably possible to do better.22

Probably none of us might be willing to have life or reputation left totally in the hands of a computer model when it comes to legal decision-making. Yet, if that process were still subject to review, and/or appeal, there would seem to be much to be said for this innovation. The danger is clear, of course, legal decision-making is also subject to equitable and other tests of reasonableness that we may not always agree can be so easily programmed in. However, the saying, “garbage in, garbage out”, also applies to decision-making by human experts.

In public administration, a computer programmed to account for “feedback” favorable to the individual as well as the often one-sided position of the agency might be easier to deal with than an intransigent clerk. Therefore, a well-programmed computer, that accounted for the “feedback” of the system, might be relied on for all that is programmed into it—something that the human mind, which may be better at making individual qualitative decisions, cannot always handle. Great judges do not sit in every court. A good computer model, subject to review, and, I would add, subject to observable inputs, might be able to overcome the worst plagues of the law: judges who do not read and do not listen, and lawyers who do not do the research, and are, therefore, incapable of persuading a court.

Taking the position that judgments should be reviewable is not to say that the power of judgment itself is so unreliable that we cannot trust anything. It is unlikely that we will ever decide, for example, that there is NO rule or legislation that a deliberate and willful taking of a human life for private motives is murder. But there is no question that in nearly a thousand years of the common law, there have been many concessions to recognizing that there are also less heinous crimes that involve the taking of human life, and that there is occasionally, either a measure of necessity or justification for a violation of rules, or evidence of diminished responsibility, which lead us to limit punishment accordingly.

The point is that neither the speed and efficiency of technology, nor the policy priorities of administrative agencies, must be allowed to cloud our better judgment. Similarly, the attractiveness of absolute rules and decisions must not be allowed to make the decision-making process so rigid that we cannot recognize when they produce a result that is repugnant to reasonableness and good judgment. Do the terms “better judgment” and “good judgment” present an insuperable obstacle—as if we were saying that they represented only somebody’s good or better judgment, and that we do not know the criteria by which such judgment is to be distinguished? I do not think so. Rather, these turns of phrase merely reflect that there are times when we question “judgment” of anyone, including ourselves:

– When it produces results that seem to conflict strongly with what we otherwise believe to be fair, just, and reasonable; or, to put it another way,

– When it produces results that we consider to conflict with what we believe to be the “intent and purpose” of the exercise of the rule-making power of the law.

To avoid such predicaments, leading public policy management schools today take what they deem “a flexible and interdisciplinary approach” to “teach students to look at societal problems from many different perspectives, using technology, quantitative and qualitative analysis and group dynamics to arrive at innovative solutions.” Their “curriculum focuses on areas that include quantitative analysis, modeling, economics”.23

Agency managers trained in this manner are thus well equipped to draft their own enabling and subsidiary legislation. But far too often law to these public policy managers consists of citing to literal readings of passages, they doubtless drafted to suit, as absolute. However, the role of judicial review in the traditional common law sense (not solely review of constitutional validity, as commonly understood in the United States, but of concern for fraud and abuse and of malfeasance, misfeasance, and nonfeasance) plays little if any role in their curriculum. It has been generally frustrated in American law, and is subjected to undue costs in commonwealth countries. Here, again, a well-programmed computer is preferable to an agency administration that looks only to language that suits its own advantage.

Yet, the ideal of judgment and decision-making in Western legal tradition belongs primarily to the courts. It was never intended to be restricted to writing the perfect statute—or limited to official policy management. The discipline of law requires legal reasoning to be consistent with the structure of a total system, governed not only by principles of law, written and unwritten, but also by consideration of the role of intent and purpose, equity and discretion.

American lawyers all acknowledge the revered words of Oliver Wendell Holmes, Jr., that “the life of the law has not been logic” but “experience”. In the sense that Holmes meant this to apply to “what a court will do in practice,”24 we all concur. But that is not to say that the converse is also true—that is, that law is not logical. What this paper will attempt to demonstrate is that indeed law is subject to the logic of its discipline in the sense where by “law” we mean not simply enacted rules of law, or particular legal decisions, but the nature of the relationships between laws and principles that are manifested in the entire system of the law as a whole.

“Experience” counts in qualitative analysis in decision-making and in giving judgment. Yet, that step only arises once one has gone through the logical steps of legal analysis. There are also basic observations, or, as I have said, “common sense” propositions, which we will see govern how rules of law apply. I have attempted to collect a number of these propositions elsewhere, with supporting case law, for another purpose—and, there is no need to enumerate them all here. However, there is one basic proposition of legal dynamics that we must take as a fundamental point of departure: Every lawyer must acknowledge that “all of the law is law all of the time.”

To put this proposition in a less grandiose way, no one who is concerned with the operation of rights or prohibitions in the law can simply point to one favorable provision of the law alone, and ignore everything else that modifies, conditions, or limits the chosen statement of the law in question. There are always interested parties, legislators, or enforcement officers, who may hang on the words of a line of statute or of a particular rule of law that fits their argument. But, no lawyer can deny that all the rest of the law also applies—not only elsewhere, but also as appropriate in its effect upon the one chosen sentence of statute or particular rule of law in question as well.

In this sense, the proposition given is not part of the law itself, but logically expresses what the selected provision of the law says and does—that is, the basic conditions of the system governs how any single provision of the law itself applies. The same conditions apply in the law as in the logic of any other system of reasoning. It is, therefore, a basic condition of the system of the law that the law cannot abandon any more than the practitioners of the disciplines of mathematics or physics or chemistry can simply apply one “law” of their discipline, and ignore everything else.

The form of cognitive investigation that I propose is, therefore, not one of radical experiment with primal neural or instinctual drives. Rather, this is an exploration of what takes place at a higher level of intellectual sophistication, where the protagonists are obliged to deal with the legacy of social moral values, how statute is and must be interpreted within its framework, and how both the structure of the discipline, and the body of written and unwritten law, impinges one upon the other. Legal reasoning properly must account for all its elements, and must also be consistent with the structure of a total system.

The Law is, however, not simply a closed system. Exercise of judgment within confined spheres cannot be neglected. However, the structure of the system also involves procedural values that can result in differences in outcomes. Adherence to the “English” or the “American rule”, can, for example, sometimes condition how results must be affected. It is all the more intriguing, therefore, when one discovers that English or American courts have chosen to apply what appears to be the rule of the opposite jurisdiction, where correspondingly reverse outcomes must surely have been predictable and intended.25

Resolution of such conflicts and paradoxes is then at the heart of efforts at Judgment and Decision-Making in the Discipline of Law, but occurs at two levels:

– At a level possibly explainable as affected by practical social or political choice. Here problems arise such as: “Can one allow a patent for a form of living matter?” (something long precluded in the logic of patent law decision-making because a life form cannot be invented) where it merely seems necessary for practical economic reasons;26 or, “Can one allow reverse engineering (something expressly prohibited by statute and/or licensing agreements), because it appears ‘necessary’ in order to reconcile use of software in two incompatible systems of hardware?”27

-At a higher level, however, one is forced to confront the question of how one justifies, or declines to justify, more fundamental, but more far-reaching questions: “Can one reach a judgment contrary to precedent, in a system, such as the common law, where one is theoretically bound by precedent?” where such precedent has been highly influential throughout our social or economic life, but where it arises from a decision made a hundred years ago that one would not attempt to justify for the same reasons today.28

In brief, what I propose here is an investigation into an area of cognitive understanding, which is not simply at the basic level of social economic choice, but, more significantly, at the level of reasoned judgment and decision-making within a structured discipline bound by legal tradition, and a very extensive fabric of codified statutes and case law.

“Your writing is not legal theory.…It is about legal theory,” one reviewer was at pains to tell me. I have no quarrel with that. The modest ambition here is not to propose a new or refined statement of legal theory. Rather, it is only concerned with the consequences of selective reading of particular sections of black-letter law without regard for everything else that is black-letter law—and established legal principle. It is the concern that an entirely different society emerges—an entirely different quality of life prevails—where administration and enforcement of law follows only the regulators’ concern for efficient management, and abandons what we all probably also recognize implicitly as the more ameliorating characteristics of law as a system.

That there may theoretically be recourse to review by a relatively impartial judicial institution does not provide a ready or effective remedy for one-sided or unnecessarily rigid interpretation of laws. If the concept of a society of law means anything, it cannot mean that we are constantly obliged to go to court. The only meaningful recourse in a rational system is not judicial review and litigation, but appeal to reasonableness—of those charged with administration and enforcement, as well as those judicially concerned with interpreting black-letter rules. For reasonableness to prevail, there must be a common understanding of at least the logic of the law—as it applies in support of the regulatory system, but also as it applies in favor of the rights of the individual. Hopefully the following discussion will do its share in contributing to such understanding

2. Legal Dynamics – Learning by Teaching

“… the objective of the course is not to make lawyers out of engineering students. Rather, the intention is to demonstrate that principles of law—while they can be learned like the data in so many other courses these students have taken in their university careers—have to be applied by human beings to real-life situations. The point is that Law, as a field of study, and as a profession, deals far less with abstract rule-making or rule-finding, than with practical problem solving and decision-making in cases where statutes and rules provide only general guidelines. Although the rules of law themselves may seem to be clear, they can only be applied once we know which rules apply to which facts. Therefore, we first have to establish:

– What the FACTS of the case are. That is: ‘Who are the parties?’; ‘What have they done?’ and ‘How has what each has done affected the other?’ The sum of the FACTS should tell us:

– ‘What LEGAL PROBLEM arises here?’ i.e.: ‘Who is suing whom for what?’

– To solve that PROBLEM, we look to underlying LEGAL ISSUES—that is, we must determine: ‘Which legal rules apply to the particular disputes we have isolated?’ and

– That enables us to analyse: ‘What has been the judicial RESOLUTION of any particular case?’ and/or: ‘Was an ALTERNATIVE RESOLUTION desirable or possible?’ ”29

O. Lee, “Does Talent for Legal Reasoning differ from Talent for ‘Scientific Method’?”

A. How Are Legal Decisions Made ?

“I know what you want,” a second year wag came to my office to tell me one day. “You want the ratio decidendi [the reasoning underlying legal decision-making].” While a little taken aback by this sharp Hong Kong student’s freshly acquired Latin, that was exactly what I had been asking students to look for.

Still new to computers when I came to Hong Kong, I had very soon grasped that what the 300 students in the huge lecture theater looked forward to in lectures was an accompanying set of PowerPoint notes to enable them to follow along this strange English legal vocabulary—and to outline the substance of the presentation as it went along as well. Hasty handwriting on the whiteboards, and even my choice of bold font in handouts was roundly criticized. With PowerPoint every student could opt out of the limelight, sit back in the darkened lecture hall, and watch the lecture like a movie.30 At this university, at any rate, all students took a first year course in use of computers. So before long one or two came forward to guide the new foreign instructor in the desired IT presentation skills.

What brought this brash business student to my office that day were remarks I had made a step further along in my introduction to information technology. In tutorials, I had observed that students who came in totally mystified by the case report they had just read, were, nevertheless, able to unravel it all very nicely—with a few probing questions. “What were the facts of the case?” “What was the legal problem those facts presented?” “What were the underlying legal issues given a problem of that nature?” “How could such a problem be resolved—and had the court done it justice?” When the same students were then asked to present their analysis of the case to the class at large, they dutifully amplified this with a running PowerPoint demonstration.

Still new to IT, it had struck me that what these students were doing with the PowerPoint was, however, not simply reporting the results of their recent tutorial dialogue over the Facts, the Problem, and the Legal Issues underlying the case. They were instead bullet-pointing the case word for word from the case report.

The difficulty I saw in that—at least this one young man had grasped right away—was that to bullet-point every statement of the decided case report as Fact or Rule, my student reporters were bound to tot up exactly the same result every time without question. In this way, they were repeating the decisions exactly as laid down by the court reporter without further analysis or question. Thus the IT system, presumably intended to free their minds from having to unpuzzle my scrawled handwriting or archaic choice of font, had instead made them prisoners of a technological system of data presentation that turned sometimes sound, but at times also less thoughtful steps of reported judicial logic into a collection of undisputable Facts and Rules. They became, as a result, no more than a mirror for the case reporter. True, they might learn the “law of the case” in this fashion. But they would be left helpless to confront a reasoning process that did not assess similar events in exactly the same way.

This was not legal analysis, I objected. This was an IT led illumination of the obvious. What Americans like to call “thinking like a lawyer”, is not that simple. But the bullet-point formula is the way legal decision-making is all too often depicted by government or administrative agency officials—in Hong Kong and elsewhere—and accordingly that is how it is perceived by the public. Absolute rules, fixed penalties, no discretion, ever. Reasoning has nothing to do with it. Thus when the recent Severe Acute Respiratory Syndrome (SARS) outbreak in Hong Kong was attributed, among other things, to the dumping of trash and garbage in alleyways, the Government, only partially successful with major offenders, sent out a corps of street monitors to get the little guy spitting or littering on the street with “zero tolerance” fines and penalties.

Yet, day-to-day legal problems are not always as simple as catching a litter-bug red-handed.31 More often the question is: “What are the facts of the case?” “What is the offense alleged?” And, “How do the legal issues under the cited section of the statute apply?”

In the early days, when I arrived, every public motorbus in Hong Kong had a huge sign in English and Chinese at the top of the steps: “Whoever talks to the bus captain or steps over the yellow line [behind the driver] while the bus is in motion commits an offense!” You did not have to ride often to discover that it was sometimes inevitable to avoid committing one or the other of those offenses. The driver often lunged the bus forward before passengers were seated—or while they stood jammed in the aisles attempting to sort out change for the fare box. There were pushbutton signals to alert the driver to the passengers’ desired stops. But, the driver frequently swerved through bus stops where no one was waiting to get on. And, in the noisy double-decker, typically, passengers felt they had to call out where they wanted to get off before they missed their stops. I faced exactly that situation one day, when the driver suddenly accelerated halfway through the university roundabout when no one was waiting to get on. The bus swerved. Already standing by the exit to get off, I was thrown over the yellow line. “Fodai, mgoi!” I called out—“university station, please!” The driver skidded to a halt. But, inadvertently, I had already committed both elements of the posted offense.

Yet, was there any street monitor there waiting there to cite me? Would any jury of motor bus passengers have convicted me? Wasn’t the unstated purpose of the ordinance clear—it is sometimes dangerous to distract the driver while the bus is in motion? But, wasn’t it common knowledge that drivers raced their buses, …that riders swayed in the aisles, …and that passengers frequently had to call out their stops to avoid being whisked past their destinations before they could get off? Without going into the technicalities of the legal doctrine of “necessity”, wasn’t it plain to anybody who rode the buses that a person unsteady in a careening motor bus would have to put his feet down somewhere in order not fall on his face?

In capsule form, that is the kind of assessment of the facts and legal issues a court must also deal with. Granted the black-letter law is clear. The factual elements of the offense are present. But was it the blind intent and purpose of the legislature to fine or jail every passenger attempting to alight from a motorbus under those conditions? That question is also one that legal decision-makers must deal with on a daily basis.

Yet, what a marvelous new technology, this PowerPoint was, I mused—not simply for enumerating the bullet-pointed elements of tort and contract—but also for explicating literary analysis of judge-made law. Here the possibility was given to pull out crucial extracts of judicial reasoning from page-long rhetorical discourse. To take an unbroken single sentence paragraph from the case report, and put it into simple comprehensible form for classroom discussion. For example:

  • “…a restrictive covenant given by a vendor of a business was very likely to be upheld by the courts;
  • a similar covenant given by a workman would be more zealously scrutinised.”32

 

“How could we miss this court’s eloquent Chinese poetic parallelism?” (here, with the bullet-points thrown in to boot), I wondered out loud. What the court did with this stylistic meter was to distinguish an enforceable covenant not to compete, given by a retired equity partner of a law firm, from an unenforceable covenant, given by a former contract partner.

Yet, Chinese aesthetics aside, there had to be something more at stake here in this court’s decision. The contract language was practically identical in both cases. What enabled the court to distinguish who would be bound from who would not be bound? If I was not mistaken, the information technology could be of use to enumerate not only primary factual data, but also to illustrate an unspoken intrusion of equity into the judicial thought process.

What intrigued me, here, was the use of information technology to enable an instructor with a 40-minute time limit to examine an unpunctuated multi-line piece of judicial law-making handily for the 300-some students following in their second language.

What intrigued me as a novice to PowerPoint was the fabulous opportunity to take a practically un-digestible paragraph-long sentence of judicial law-making and to make it readable:

…whether persons with a practical knowledge and experience of the kind of work in which the invention was intended to be used would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked.33

As an instructor’s selection, this was a crucial excerpt defining infringement. Yet, in unmodified textual format, it was only questionably more digestable than the whole case report. “But let us put the IT to work—add the bullet-points and some italics—and see whether it makes a difference”, I thought:

  • …whether persons with a practical knowledge and experience
  • of the kind of work in which the invention was intended to be used
  • would understand that strict compliance with a particular descriptive word or phrase appearing in a claim
  • was intended by the patentee to be an essential requirement of the invention….

 

“Was that enough?” “There were still all those elaborate qualifiers.” “Could we, perhaps, split off the conclusion?”

 

  • so that any variant would fall outside the monopoly claimed,
  • even though it could have no material effect upon the way the invention worked.

Then, “What if we read this conclusory selection backwards?” “With the substantive elements already italicized—we discover the key to the whole passage. Subject and verb are buried in the last two lines”:

  • even though [any variant] could have no material effect upon the way the invention worked.
  • [it] would fall outside the monopoly [i.e., the patent] claimed.

 

“And, this is so because”:

  • persons with a practical knowledge and experience
  • of the kind of work in which the invention was intended to be used
  • would understand that strict compliance with a particular descriptive word or phrase appearing in a claim
  • was intended by the patentee to be an essential requirement of the invention….

 

What we would then have done in this way is no more than a little sentence parsing—reminiscent of the grammar school classroom—to turn this nearly unreadable discourse into a much clearer piece of judicial rule-making. This kind of graphic grammatical analysis was possible back in our schooldays with just a piece of chalk and a blackboard—and small classes, and class discipline. It could be facilitated today with far more costly, yet immediately illuminating electronic IT. The challenge here is to turn an early morning class in a huge lecture theater into a pedagogical drama center. For the willing students who come from school with well honed quantitative abilities but dulled verbal-intellectual skills—diverted by lack of sleep, missed breakfast, morning papers, beeping pagers, and their prospective lunch appointments calling on every mobile phone—this could be just the right dose of electronic entertainment to save a mass lecture-bound course from descending into pedagogical irrelevancy.

“He is writing essays in the PowerPoint!” one concerned exchange student condemned the experiment—with more acerbic eloquence than common sense, in her so-called “student evaluation”. Yes, if IT can lend its power to a Decision-Support System (DSS) ONLY by listing data inputs prior to a conclusory summary restatement, then that was not the avenue I was pursuing. The whole concept of law, in the critical analytical approach to judicial reasoning, is at odds with pure data processing. But surely that form of DSS is not only at odds with legal science. A rigid notion of DSS that can only be used for listing assertive bullet-points—and adding up to a conclusive “therefore”, is at odds with science itself.

No one can question that we live in an information bound world today that would come to a halt without data processing support systems. The sole reservation here is that “law” is not simply a data processing system. It is far more essentially a decision-making system. Like every information management organization today, it requires information systems (IS) support. It would be absurd today not to employ such systems to master the mountains of documentation involved in legal and judicial decision-making.34 Yet, what this essay will attempt to illustrate is that legal science is itself a kind of DSS where the inputs are not only factual data, but also qualities and conditions of linguistic, logical, philosophical, ethical, and social systems-reasoning that are obscured and perverted by those who like agency administrators trained solely in data processing, seek “fixed penalty” solutions to every legal problem [cf. n.2 above].

B. Law as Orders—Law as System

“…it is still necessary for every student of jurisprudence to define his attitude towards these two conflicting views. In the one, the essence of law is that it is imposed upon society by a sovereign will. In the other, the essence of law is that it develops within society of its own vitality. In the one case, law is artificial: the picture is that of an omnipotent authority standing high above society, and issuing downwards its behests. In the other case, law is spontaneous, growing upwards, independently of any dominant will. The second view does not exclude the notion of sanction or enforcement by a supreme established authority.”35
Sir Carleton Allen

There they were again, one day. Now graduate engineers, alumni of the first course I had taught in Hong Kong. Assembled again around tables in the coffee shop of our school. They hailed me over—even if their “Engineering Law” course was not their fondest memory. “What is law?” one of these returned former students, now more outspoken than he had been in times gone by, challenged me with his question—the others nodded in agreement. “That’s what you asked us the first day,” they recalled, still uncomprehending how you could begin a course with a question. …particularly, that question. …to engineering students. “We don’t ask that question.” He seemed to be speaking for all of them. “They tell us what to do—and we do it.” No one had to say those words. It was all around us—unspoken.

It was clear what he was intimating. “A course is to tell you what the subject matter is all about. It is not to make you guess.” But there was more than that in this meeting. “If the course is about ‘law’, then it should be about ‘rules’. If it is about ‘rules’, it should be possible for you simply to tell us what they are.” For this unusual class of law students—students from most of the various departments of the Engineering School—the syllabus was not specified in detail by the Hong Kong Institution of Engineers, which required the course for certification. These students were not to be trained to be lawyers—yet they should recognize when they needed a lawyer. They should gain a general understanding of how “law” would affect them as a condition of their professional environment. And, ideally, they should learn how to read a legal document and follow its reasoning. (Or so their instructor thought.)

This would not be such a bad background in law for any one of us, not simply engineering students. But maybe I have learned a little more myself in the meantime on how to broach qualitative questions to the quantitative thinking student. There is obviously a lot in such a course goal that is different from simply “law as rules”.

What is that you were saying old friend? Obviously, the least reflective of these students has realized, as he said: “They tell us what to do—and we do it,” that there is a legislative power somewhere for making rules that have the power to bind us. What we may hope that he may also question is whether there is also an authority for making rules in the first place. Rules that tell us, that it is right to do this and wrong to do that—if they do not simply rely on raw power—must also rely on some authority capable of persuading us of the existence of a “right” or a “wrong”.

We live in a society—in Hong Kong (or anywhere else)—which assumes and accepts that one’s daily life is structured by administration of rules and penalties. It may be that all of these ritual obligations are “correct”—unceremonious perhaps, but not exactly an abuse of power. The institution itself has no face. It is a creation of management science. No senior person takes responsibility, or is willing to exercise discretion, either. Instead, liability for enforcement and for failure to perform every ministerial act is spread down to every counter clerk. Hong Kong is, therefore, a very “correct” place, though it is a somewhat elusive process to try to reach anyone with authority or discretion to make a decision—because those persons, too, will claim that the letter of the law directs their every move.

My first question to these students, was, therefore, concerned: NOT with “What ARE the rules?” that make all these institutional functions work, we can always look them up, but rather, with: “Who made them?” And: “With what authority?” “Does it make a difference, to ask the following questions?”

– “If government has power to make law, does it have inherent power to do this—or does it have that power because society has given it up?36 And,

– If society has given up the power to make law to government, have they given up all power?”

To put the question another way—that is the foundation of legal and political science—“Do the people have power left sufficient to question the power of those to whom lawmaking power was given?”

You can see where we were going with this. “If lawmaking power is exercised in the name of the people, …if the people entrusted power to the legislator, is there any basis to believe the people consented that the ruler or lawmaker should become entirely arbitrary and capricious?” “Or, if the people gave up power, was it with some specific intent and purpose?” “If the latter, does it make a difference whether rule or law-making power is not used with the original intent and purpose?” All of these questions go to determining the nature of the power to make law. But they also reveal the authority for the law that can be made—and the residual power of the subject—if there is any such power left—and of the courts to interpret law.

All this may seem at first to resemble the medieval theological debates about what God can or cannot do if God is omnipotent and omniscient. But there is a difference here. Those debates were intended to reaffirm faith in an almighty God. These questions are concerned with the limits of power of the lawmaker to make law—and with the extent of residual power of the subject, if any, to question the limits of the law that can be made.

None of this is intended to suggest that people who have the power to make rules, or to enforce rules—in Hong Kong, or anywhere else—are not abiding by the law. I do not suggest that “law” is not also “the will of the sovereign”, or the expression of the power of the state. All I suggest—and what this essay will examine more closely—is that:

– The language and logic of “authority” and of “intent and purpose”, make “rules of law”, subject to the limitations of the language and logic from which they are derived. And,

– It is in no way contrary to the power of the law, or, of the lawmaker, that those limits are observed.

Law, in the common law and civil law traditions, is not random power—or arbitrary or capricious. We may even be persuaded that “we would not be living in a civilized country” if those limits were not observed.37 And that could go a long way to coloring the character of the laws that are made, and the ways we accept to live under them.

But not so fast. We all know that this is not the impression we get of law in everyday life. We hear all the time that the Government and the media are very proud of the continuity of “rule of law”, which, ostensibly, makes Hong Kong a safe and inviting place for international business. And it is true that there are far less desirable places to do business in the world. In Hong Kong, there are rules of law, and they are adhered to. If you are very rich (or very poor and can get legal aid—but that is another story) you can go to court, and, in that sense, there is “rule of law”.38 But what we face every day—every counter clerk interpreting black-letter rules and regulations is not the same kind of “law” if “law” also includes knowledge of its limits, and/or of its intent and purpose, and its application in keeping with a reasonable understanding of its limits and intent.

Granted what we do have may still be a lot better than exists in some other part of the world where they may force you to pay a bribe for the same thing. But far too often we have to accept a rigid, apparently literal, but often wrongheaded interpretation of statute that conforms with the sponsoring agency’s desires, but sometimes departs significantly from what a reasonable person might understand as the intent and purpose of the legislation.

Ideally, judicial review, if we could get it, might be the remedy for abuse of statutory authority by administrative agencies. However, in Hong Kong (because of the vastly greater cost of litigation), under the loser pays rule the agency has the power to litigate at public cost, and thus to magnify the risk of bankruptcy for the citizen who brings a good faith action to review an agency ruling.39

If we are also looking for “law” that deserves our respect for what it does and what it embodies—that we can rely on because it embodies our values and the best of our reasoned understanding—then the “law” we know from everyday experience often leaves a lot to be desired.

This is not to say that judges, too, will not sometimes abuse judicial power in handing down a ruling that agrees more with their own literal reading of law, even though that may at times appear to be what some might consider a more humane result in keeping with the law’s intent and purpose. John Noonan attributes such motives to four American judges most celebrated for judicial rectitude: Cardozo, Holmes, Jefferson, and Wythe (the teacher of Jefferson).40 Walter O. Weyrauch also speaks of that appeal to “higher authority” as a means of creating a “mask” sense of reason and stability that may often have a fictional quality to it,41 Weyrauch goes further, suggesting that non-judicial settlement in American practice can be even more cynical and rely more on bargain than judicial or legal norms or principles.42

The difference for our purposes is that, whereas these latter human failings may result in disregard for principles of law in the course of judicial resolution, the former sets up an institutional format for systematic denial of access to courts in order to inhibit any departure from agency-favorable interpretation.

C. Filling-in the Gaps in the Law

“The second kind [of right conduct] makes up for the defects of a community’s written code of law. This is what we call equity; people regard it as just; it is, in fact, the sort of justice which goes beyond the written law. Its existence partly is and partly is not intended by legislators; not intended, where they have noticed no defect in the law; intended, where they find themselves unable to define things exactly, and are obliged to legislate as if that held good always…in fact only holds good usually….”43
Aristotle, Rhetoric

“Do you teach democracy in your law courses in Hong Kong?” the editor of a Commonwealth public affairs journal asked as I handed in a paper on the recent constitutional crisis in Hong Kong. “No,” I replied, “but I am gratified whenever students question whether a decision was ‘fair, just, and reasonable’.”

Why should the business and engineering students who were taking my courses be asking such questions? Not because the certifying agencies that required them to study the elements of business law and professional responsibility expressly called for it, surely. Rather, I believe, it is because there would be no business law, or professional responsibility, without such questions. The desire for fair play in business dealings, and the expectation that a professional person should attempt to conform to the best standards of his trade or profession are the concerns that underlie these fields of law. Whenever we express these concerns and expectations regarding the law, we play our part in keeping alive the ideal, perhaps only the cultural myth, that the law embodies our best expectations of ourselves and our various traditions.

In other words, the concept of law that underlies the discipline of the common law and civil law traditions must have an eye toward the purposive application of rules of law, and to the decision-making process in law, as much as to the law’s exact rules as mere order or command. In that sense, rules of law follow intent and purpose, and the objective of the legal discipline is one of enabling decision-making in keeping with underlying authority.

We expect the legislature to make “laws”—to enact “ordinances” in Hong Kong—that will reflect our political and social desires. But, we really do not want to live in a society with a concept of law based solely on “rules and regulations”—the most skeptical of us still longs for some more tangible expression of human feeling—of “justice and equity” in our lives.

“Law,” in the common law tradition, and also in the civil law or codified law traditions of continental Europe and those parts of the world that have taken their law from the continent, does include—or is expected to include—reference to these other “sources of law” in judicial decision-making.44 However, the average person, and, unfortunately, many lawyers and judges, sometimes forget this, and simply equate “law” with a literal reading of the enacted statute “laws” on the books.

This is easy to do if, particularly in Hong Kong and the region, both students and the public rely on the Chinese terms which translate the English word “law” with an expression that historically meant only “rules and regulations”—that is, fa lü in Mandarin, or fa lud in Cantonese—while reserving the expression jen ch’ing / yan cheng, shall we say “human concern” or “common decency”, for another field.

It is all the more gratifying, therefore, that the leading cases in Hong Kong business and intellectual property law that have arisen in these required law courses over the past few years, so often turned on questions of equity. Not one of the technical and business students who took these courses did not object at first that the English of the case reports was too difficult. Yet, their observations, and my own attempt to express the issues in plain English theorems and corollaries, all derive from decisions where they have learned to question any result that appears “absurd, harsh, or unreasonable”.

“Teach democracy?” Our students tend to be too absorbed by more practical concerns. We do not really have a democracy in Hong Kong. There is a kind of independent mindedness among students, almost a kind of survival of the fittest. People do appreciate that there are greater opportunities for education and economic advantage there. The media delight in getting pictures of immigrant children, brought there illegally by their parents or adoptive parents, sobbing how their life ambition is to be able to remain in Hong Kong and not be sent back to the mainland.

There is a solid administration and government—heirs to a colonial legacy. They tend to think of the law as something created by them for our benefit rather than as an expression of society acting on its own. We might say that there is, recently, a general recognition of the need for the protection of human rights—again as one more role of the government rather than as the expression of the popular exercise of ideals of liberty and equality. Judges do adhere closely to the concepts of the common law. But there is perhaps more a perception that law is handed down to society, rather than that society makes its own laws.

Then, in brief, why attempt another essay on principles of decision-making in the law when Bennion, for one, has created an encyclopedic work on “statutory interpretation”, which records what appears to be the most enlightened interpretation of statutes in the course of judicial decision-making?45 Because the object is different. Learned works such as Bennion’s reflect the record of practical judicial decisions within a society with a long history of legal reasoning—of applying rules of law with judgment. The rather limited goal here is merely to suggest that the logic of the law from which the decisions cited spring reflects a society in which law is respected—where it is—not simply because its rules are there for our benefit, but because it expresses our convictions and judgment.

3. Representing Legal Dynamics in the Operation of Purposive Systems

“The management scientist’s aim is to spell out in detail what the whole system is, the environment in which it lives, what its objective is, and how this is supported by the activities of the parts.”46
C. West Churchman

A. Evolution of Systems Theory and Relevance to Legal Dynamics

The point is that, while factual inputs are vital to legal decision-making, the factual data does not speak for itself, but is applied in terms of the general, purposive, system of the law. In that sense, decision-support is determined by what the system does with data inputs.

Since the essence of the distinction made here is that the “system” decides—not the inputs by themselves—it is worthwhile to reconsider what we mean by “system”. The systems approach is now an accepted part of the analysis of management of organizations. Its premises were outlined by Churchman, for one (cited above) over 40 years ago. Implicit here is that the concept of “system” is not that of an entity, but more a set of operations of an organizational structure. The usefulness of the concept lies in the ability to explore the dimensions of a problem, which is not confined to one set of circumstances or one location, but rather involves the interaction of these with both their surroundings and their internal structure.47

This approach may be used to study an organization of human design, as well as one that arises in physical or biological nature. To stress again, the inquiry is into an organizational, operational, set of circumstances. Implicit here is that human organization is not simply random, but is set up for a purpose. It is intended to realize some objective. A natural system may not be “motivated” in exactly the same way. However, insofar as it involves natural forces at work, it results in developments and changes according to how the elements interact.

In the field of biology, however, it has been argued that natural systems are also “motivated”, as it were, to realize ascertainable objectives. This situation has been pursued both internally with regard to the structure and function of organisms, and externally, with regard to the development and evolution of the organism in its larger environment.

Biology, as a field of learning, incorporates forms of inquiry into the forces at work in the natural organism which may also apply by analogy in the operations of human organizations. “Reductionists” or “mechanists” are said to believe that the processes of life can be explained by reducing them to the physical and chemical terms of the structures of living organisms. “Vitalists”, on the other hand, tend to believe that not all is said by description of physical and chemical properties.

The latter approach is at least as ancient as Aristotle, who undertook what were perhaps the first systematic studies in biology. Aristotle spoke of four causes of life: the material (or chemical), the formal (or biological), the efficient (or physical), and the final cause (or vital force, entelechy). Hans Driesch, at the turn of the last century, and more recently E.M. Sinnott have also spoken of a “self-perfecting drive” in all organisms.48 That “drive”, or accommodation to environment is also what Darwin perceived of as at work in the course of “natural selection”, or of adjustment of the organism over time to the conditions imposed by its environment.

For most of the past century, however, the reductionist, materialist argument seems to have prevailed in the field of biology. Joseph Needham, for one, maintained that biological order could arise through a “hierarchical continuity” of complexity, and without the need for an outside factor as contributor to explain it. He would only admit of the further “potentiality” realized by “the existence of non-additive properties in complex patterns”—in other words, the additional result is achieved by combination of forces as of musicians in an orchestra.49 According to Needham, K. Sapper (1928), and O.F. Meyerhof (1922, Nobel laureate for his work in cell biology), certain properties of components of an organic structure may only come into operation when the organism reaches such a high level of operation that its own properties interact.

More recent inquiry in this direction has led to what Bertalanffy called the “open systems” approach—including the interaction not only of the closed internal system of the organism with itself, but also of the organism with its environment. His studies in biology led Bertalanffy to argue that through the study of overlapping “open systems” one can come to a new sense of the unity of science and to a “general system theory”.50 These “organicists” also see more in the life of an organism than the sum of its physical and chemical properties, yet, unlike the vitalists, they speak of only the organism and its environment, not of life as a whole. The concept of “general systems theory” has been applied to the behavioral sciences, by Churchman (1968)51 and, in turn, Ackoff and Emery (1972)52.

What I suggest here, is that legal science also operates as such an “intellectual open system”. It is not examinable experimentally in the same manner as are biological organisms or the evolution of species. F.S.C. Northrop may essentially have been exploring such a description of legal science in systems logic terms when he spoke of Western “contract law” legal science as employing “imageless constructs” of symbolic logic or pure mathematics, which he referred to as “concepts by postulation” or “by intellection”—which serve the same function in the traditions of Western law as in the purely abstract form of reasoning that made the scientific revolution in the West possible.53

At the same time, we are also affected by shared values on a non-abstract level, or in the sense of what Northrop referred to as an “aesthetic continuum” or sensitivity shared by different participants of the community or across communities. This shared aesthetic sensibility, as it applies to “mediational approval” is especially characteristic, he thought, of the mediational approach in non-Western legal traditions.54

B. An Approach to Graphic Representation of Legal Dynamics

The importance of the foregoing for law and decision theory will, I trust, become more readily apparent in the following discussion, where it will be suggested that law as a discipline is a set of expanding intellectual premises:

1. That begins with the choice to legislate for certain situations vs. absence of choice to legislate;

2. Based upon a purposeful motivation; and

3. Guided, in both instances, by ethical convictions and/or social expectations.

Like management of organizations choices in other areas, elements of the system also interact with one another—our awareness that merely supposedly logically consistent actions, may also lead to ethically, or socially, repugnant consequences should also lead us to resist blind application of such elements. However, rhetorically persuasive argument policy choices that put purely administrative efficiency ahead of collective personal well-being can lead us into unforeseen consequences. At times like these, it is necessary to consider whether blind application of such elements has forced us to accept logical consequences that are absurd, overly harsh, or unreasonable.

Engineering is the realm of the “applied sciences” they say. Physics and chemistry are fields in which we strive to understand scientifically the movement of bodies and the composition of matter. Engineering seeks rather to apply pure scientific knowledge in practical ways that benefit society. But not all of engineering deals with solid matter and its states. In its more abstract areas, engineering also deals with how these applications are governed to society’s best advantage. Industrial Engineering (IE) and Operations Research (OR) are also such fields of applied science, they say. Here it is no longer mechanical advantage or manipulation of composition of matter that is at stake, but rather the application of the functions of choice of industrial or operations methods in decision-making for business and social enterprise.

What I suggest is that there is a parallel here with the application of Legal Science to business and social problems. The realms of the Humanities and Social Sciences seek to understand values and choices in the formation of human thinking and society. Legal science was also derived in its ancient form from an attempt to understand the organization of society—particularly as society and its values emerged naturally. But legal science in any modern sense is an “applied” science, engaged in applying reasoning to rules and values to solve social problems.

The Romans had an almost anthropological concept of a universal law of nature or jus naturale which underlay the law of various historical peoples. Because the Roman doctrine became so closely associated with the “natural law” theory of the Church of Rome in medieval times, it is often misunderstood today. For the emergence of economic order, where the players find each other in the market, F.A. Hayek uses the less felicitous if more neutral term “spontaneous order”.55

In this sense, law as a discipline is engaged in the same pursuit as Industrial Engineering and Operations Research. It is engaged in the common pursuit of aiding the social decision-making process. Obviously, it is not bare law as rules that we think of as doing this. Rather, it is the discipline of applying legal reasoning which contributes to the decision-support process—prior to any determination about whether legal rules apply or not.

Let us think of a way to express the foregoing questions—and the question of “What is ‘Law’?”—better for the quantitative mind. To put the course subject matter into a familiar format, let us see whether we can put the decision to make law, “choosing to legislate”, onto an x—y axis. If the law that is to emerge at some historical moment is in the form of a written statute, we can represent its positive written form as both +y and +x; both articulated and written. What is NOT said in the decision to promulgate such a piece of legislation should not be entirely overlooked in the process. The giving of explicit authority to legislate in one instance also implies the existence of authority NOT given, and conceivably of choice not to cover certain other behavior by legislated rules and/or to limit the power given by choosing to legislate.

Not Choosing to Legislate - Choosing to Legislate

There need not be a single particular historical moment for this at all. It would be sufficient to say that certain areas of behavior are “legislated for”, or “not legislated for”. Once so divided, we may think, on the one hand, of “legislated for” conduct or behavior as subject to legislated for, “positive” binding rules (as measured by +x and +y). It is also possible to account for “adopted” but non-statutory, customary rules (i.e., +x, but -y). In other words, on the +x side of the axis, we are subject to “adopted” rules of two kinds—or at least, we are subject to rules that derive from “authority” of two kinds. So perhaps we should divide the two graphically from one another—say by putting the statutory (positive) rules and authority (i.e., +x and +y) in the upper right quadrant, and the customary authority, and mutual consent rules (i.e., +x but -y) in the lower right quadrant.

Legislated for Rules - Customary Rules

Laws drafted in clear statutory language should give rise to greater certainty of interpretation in the courts. The graphic representation allows us to illustrate this as positive (written) with arguably greater certainty (i.e., +x and +y). Customary and traditional rules may also be based on authority recognized in centuries of use. Yet, precisely because they arise from use or convention rather than precise written legal language, their application has to be reconfirmed by the courts. To that extent, we may say that they may lack the same degree of legal certainty in their application as the rules in the upper right quadrant. The graphic representation enables us to illustrate these (unwritten) customary or traditional characteristics as arguably less certain (i.e., +x, but -y).

Where, on the other hand, whole areas of conduct or behavior are “not legislated for” by either statutory or customary rules, there may still be an implicit assumption that society has either chosen not to legislate in this area, or has, perhaps, “limited” or merely “omitted”, powers given on the +x side of the graph. This can be thought of as on the scale of –x side of the x-y axis.

Some authorities may tell us that the “Decision to Legislate” is in fact much broader than conceived of above. They may contend that the “Decision to Codify” actually embodies the ambition to subsume all human behavior within some “legislated for” boundaries. The fact that express rules are not found, merely means that either they should be “interpreted” from existing rules, or that the legislature “reserves” the right to legislate further in these respects.

There is, however, strong authority, for the opposite view, that is, that the decision to legislate for one thing does not imply the decision to legislate for everything. The position taken in the American Bill of Rights, the first ten amendments to the U.S. Constitution, and the debates that surrounded its drafting,56 reflects that conscious determination:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”57

Applying this thinking to the foregoing x-y axis, we find that on the -x side we can also include what in American constitutional doctrine are called “reserved rights”.

Reserved Rights

We do not know the full extent of the content of this area, except that certain decisions of the U.S. Supreme Court have argued that there are also unwritten rights that Americans take for granted, which can be attributed to this source. Mr. Justice Douglas argued, for example, that the “right to travel” is such “an essential expectation of liberty”, “of which the citizen cannot be deprived without due process of law under the Fifth Amendment”.58

The expectations of liberty contained in these “reserved rights” may be considered so fundamental in the literature as to lead to judicial or legislative recognition. In the Kent decision, in which the “right to travel” was held to be an “essential” if unwritten right, for example, Douglas cites Zechariah Chafee’s assertions that “…outside areas of plainly harmful conduct, every American is left to shape his own life as he things best, do what he pleases, go where he pleases….”59 Even greater influence can be attributed to an essay on the “right to privacy”, by Samuel D. Warren and Louis D. Brandeis, which appeared in the Harvard Law Review in 1890.60 The latter did not receive recognition in the case law until much later,61 but the concept of a right to privacy is now also firmly codified in both state and federal statutes.

Thus we may conceive of the content of this area of behavior, while “not legislated for”, as nevertheless representing a preserve of “natural” or “autonomous rights”, which, although unwritten, are assumed to be there (i.e., -x but +y). There may seem to be something of a paradox in this if one thinks of “rights” in law deriving only from “legislated for” principles. But that is not necessarily the case. Of course there are some rights that have such unfirm historical antecedents that they can be attributed only to such a basic piece of legislation as, for example, the American Constitution, or the Hong Kong Basic Law. However, the ancient concept is that “rights” need no such “legislated for” justification because they are believed to inhere in the people by their nature. Medieval Western legal traditions regarded “legislated for” rules as a whole as at best limited departures from customary law. The statutory rule should, therefore, be strictly adhered to as the “legislated for” exception to the underlying customary rule.62 Although the concept of “rights” is not non-existent in Eastern civilizations, they are generally confined to the realm of moral tradition.63

On the “not legislated for” side of the axis, one may also be able to speak of other “claims”, if not exactly “rights”, that have never been finalized but derive from a course of dealing or relationship that is not explicitly covered under positive or customary business law dealings or relationships. Such claims (i.e., represented as both -x and -y) might be subject to challenge or assertion that we had not defended our “claims”, or at least not made them manifest, at some time in the past.

Autonomous Rights - Course of Dealing Claims

As demonstrated by this exercise, statute law is not the only “source of law” on the “legislated for” side of the axis. And there is also more than one “source of law” on the “not legislated for” side. We say “source of law” rather than “law” because even statute law is not “law” without further judicial interpretation. Rather, there are a number of sources of authority that may be interpreted and applied by the courts—including the accepted equitable propositions that have become part of the English common law over the past 900 years. Historically, equity as a source of English law benefits from a tradition going back to ancient times. In the words of Aristotle:

[T]his is the nature of the equitable, a correction of law where it is defective owing to universality.64

If there is an “authority” for making law, that is for enacting statutes, that “authority” may be a “source of law” as well—and it may be both written or unwritten. Yet, even though there may be an acknowledged rule or set of rules that are “not legislated for”, there may be evidence to find “authority” for them in the traditional legal literature esteemed as embodying our values, past experience, or collective wisdom of those honored for interpreting the law in the past.

As we have seen, some rules are rules by command or by express “positive” enactment, or statute, and some rules are customary or reflect the repeated considered wisdom or judgment of some tradition. It is not uncommon, of course, that rules derived from custom or tradition are later expressed in positive or statutory form. This incorporation of the unwritten tradition into the written one is part of the attempt to add greater certainty to how rules of law will apply—or which rules of law will apply.

Lawmakers uneasy with the idea of inchoate sources of law do attempt to incorporate into the codified statutes everything they know of, or have heard about, that might possibly arise in interpreting what they have written into a particular statute—thus implicitly excluding any other source of law that they have not so incorporated. When, for example, the new Basic Law65 in force since the “handover” of Hong Kong from British sovereignty to the People’s Republic of China, recognized not only statutory law but also customary law and equity, in force at the time of the handover, the Government and Legislative Council of Hong Kong, sought to make clear the extent of continuity of such law from the British period. Thus they amended the “Interpretation and General Clauses Ordinance” of the Laws of Hong Kong to indicate that there will be a continuity of the law previously in force in Hong Kong, both written and unwritten, both legislated for and customary:

“ ‘laws previously in force’ means the common law, rules of equity, Ordinances, subsidiary legislation and customary law in force immediately before 1 July 1997 and adopted as laws of the Hong Kong Special Administrative Region.” 66

Thus, not only prior statutory law, but also what was historically unwritten law becomes subsumed into the written law by reference. (This exactitude was characteristic of Hong Kong codified law even before the handover. The previous “Interpretation and General Clauses Ordinance” also incorporated the “rules of equity” by reference, although not by specific enumeration rule by rule.)

Attitutes Toward Social Behavior and Rule-Making

By employing the x—y axis, we are merely representing a qualitative difference, by a quantitative measure. On the +x side we are saying that rules binding by the force or sanction of legislation or customary law authority have become articulated either in writing (i.e., +x and +y) or in less exact collectively acknowledged form (i.e., +x but -y). We distinguish conduct on the +x side of the axis from conduct on the -x side where we say that there may also be some authority for unarticulated but arguable rights, or for retaining entire areas of conduct for self-determination. If pressed we may say that some conduct on the -x side, either has not been made subject to overall rules, or, is “none of the [positive] law’s business.”67

However, we cannot say that conduct on the “negative” side of the axis—the side with no written rules—is “freer”, for example, simply because it is not regulated by statutory law. Lack of regulation itself may also impose limits on us. While there is no “law” sanctioning exercise of conduct, that may arouse the concern of our more powerful neighbors, for example, we may still hesitate to do such things. This double “negative” situation is represented on the left hand side of the x—y axis. Although no “legislated for” sanctions appear to apply on the -x side, we may, nevertheless, still hesitate to invade what the community may think of either as a justifiable private sphere (e.g., “retained rights”), or of tacitly conceded rights (e.g., out of “course of dealing”), out of fear of the reaction of others. Conversely, law limits the full range of conduct we can engage in, on the +x side of the axis, but may also protect the rights of the less powerful, and thus enable them to exercise rights, under sanction of law, that they would never dream of exercising in the “not legislated for” arena.

What we are able to demonstrate by employing an x—y axis diagram is the separation of “legislated for law”—both statutory and conceivably customary—from “non-legislated for law”. The +x side of the graph is the side where specific rules of law have been laid down (statute, or positive law), or where, at least, rules of law have been found (customary law, law by mutual agreement, or rules of equity long evolved but not necessarily statutory). The “non-legislated for” side of the graph, the -x side, also demonstrates a wide-range of retained community rights and further areas of sensitivity to violation of expectation.

In a society where the right to make law is said to derive from the “consent of the governed”, no government can claim that it has the right to make any law it chooses. If government can say that it has “authority” for making law in a particular area—that is it can point to the consent of the governed to make such laws—on an x-y axis we can designate such laws as both statutory (positive) and supported by authority (consent of the governed) (i.e., both +x and +y). The other side of the x—y axis represents an area where there is no statutory law of that kind, but surprisingly, perhaps, authority for defending retained rights (i.e., both -x, and +y), and pure expectations (i.e., both -x, and -y).

In other words, in a society where government derives authority for “legislated for” law from the consent of the governed, we may discover that the “consent” may be only “consent within limits”. The “limits of consent” may be represented on the so-called “negative” side of the axis. In other words, there may be “law” on both sides of the axis. The statutory power yielded or assumed by government makes up the “positive law” represented in the upper right quadrant. The “limitations on power”, or “residual powers” of the subject, are represented in the upper left quadrant. Yet, if all law applies all of the time, positive law may only be exercised to the extent that the limitations on power apply and condition at the same time.

Therefore, if all of the law applies at all times, then choosing NOT to legislate can also condition choosing TO legislate. Law includes both the positive law and the inherent written and unwritten limitations on the positive law.

4. Public Policy Management and the Crisis in Judicial Review of Administrative Agency Action

The schools take what they deem “a flexible and interdisciplinary approach” to “teach students to look at societal problems from many different perspectives, using technology, quantitative and qualitative analysis and group dynamics to arrive at innovative solutions.”Their “curriculum focuses on areas that include quantitative analysis, modeling, economics”68
Composite Statement of Public Policy Management School Goals and Curriculum

A. Judicial Review of Administrative Agency Action

In 1998, a constitutional crisis arose in Hong Kong when the newly constituted Court of Final Appeal (CFA) handed down two decisions allowing certain illegal immigrants, claiming “right of abode” by birth, to remain in Hong Kong despite violation of entry regulations laid down in the recently amended Immigration Ordinance and procedures adopted by the Immigration Authority.69 The CFA seemed to be carrying out a revolution in Commonwealth administrative law, inter alia, by adopting a position that the infant American Supreme Court had taken in one of its own first judgments, Marbury v Madison (1803).70 In that decision, the American Supreme Court had in fact carried out a revolution in the English common law: (1) It held that, not only was it empowered to declare what the law was in a particular case, and to what extent any law that conflicts with another may be applied:

“If two laws conflict with each other, the courts must decide on the [the extent of the] operation of each.”

(2) It held that it could also determine that:

“a law repugnant to the constitution is void….”

For 200 years, review of the constitutionality of a piece of legislation has characterized the application of the doctrine of judicial review in the United States. However, strictly speaking, judicial review does not go that far. Resort to judicial review in the sense it appears in Commonwealth countries is, rarer in the United States, but it has not completely disappeared. The theory is concisely stated:

“Strictly speaking there is no such thing as an appeal from an administrative agency. It is correct to say that the orders of an administrative body are subject to judicial review; and that they must meet the requirements of due process. Such review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers, that substantial evidence supports the factual conclusions, and that determination comports with the law applicable to the facts found.”71

In other common law countries, including Hong Kong, judicial review has typically extended only to review of an administrative agency’s decision, in keeping with enabling legislation in order to determine whether or not such a decision was within the powers of the agency, and reasonable in light of the discretion available to the agency.

As a result of their assumed constitutional powers, American courts will also examine whether in “content”, a piece of legislation provides for due process, for example. Traditionally, English courts could determine that a particular statute is defective in a way that might prevent it from being implemented. But the court could not declare a statute “void”. That power is reserved to Parliament,72 which in this respect is “sovereign”.73 With the introduction of the Human Rights Act 1998, courts have been empowered to state that a certain Act of Parliament is incompatible with the human rights provisions enshrined in the European Convention on Human Rights, but they still cannot strike down an Act of Parliament on that ground.74 The distinction between the American and the English courts, in this respect, is summarized by Atiyah and Summers:

“…in England it is usually enough for a rule…to satisfy a source-oriented standard of validity, for example: ‘Does the rule originate from a duly authorized lawgiver?’ In America, on the other hand, one also encounters many content-oriented standards of validity. The ubiquity of content-oriented standards in the American system, and their relative absence in the English, represents a profound difference between the two systems.”75

Yet in these Hong Kong cases, the newly constituted Court of Final Appeal appeared to be seizing the American Supreme Court’s prerogative by declaring the Immigration Ordinance amendments unconstitutional. In the long run, however, in a major decision ending the crisis the next year,76 the Court of Final Appeal was to recognize that it was bound to follow an “interpretation” of the Basic Law (the constitution of the Hong Kong Special Administrative Region) whenever handed down by the Standing Committee of the National People’s Congress of the People’s Republic of China. Such an “interpretation” by the Standing Committee had, in the meantime, made the CFA’s assumption of power moot. The CFA was now bound to find differently in subsequent cases, although it never formally reversed itself.77

What is particularly intriguing for the American student of judicial review in other common law jurisdictions is the readiness of Commonwealth courts to re-examine what the American lawyer would presume to be merely “discretionary” decisions of administrative agencies and officials—particularly with regard to what continental legal theorists would call “purpose of law”. Thus, even in its final, and corrective decision, the CFA laments the recalcitrance of the Director of Immigration to exercise any discretion in determining whether or not extenuating circumstances might allow him to permit a minor with no relatives on the mainland to remain with his family in Hong Kong:

…in the context of the removal of a person falling within Part 1B of the Immigration Ordinance, the Director must have regard to the overall objective of the statutory scheme.78 [Italics added.]

I do not suggest that English or Commonwealth courts have always followed the model of purposive examination of application of statute. However, in the instant case one justice of the Hong Kong CFA was keen to cite current academic literature on this subject:

I cannot improve on how Prof. Jeffrey Jowell, QC, puts it “…the powers intended by a legislative scheme…must not be construed in a vacuum” that it is necessary “to identify the underlying principles which should govern the decision in question.”79

Reference to a living academic legal thinker,80 not a jurist—i.e., not a judge handing down a previous binding precedent—is, by itself, something that would have been highly unusual only a few decades earlier, not only in England and Commonwealth countries, but also in the United States. The predisposition not to cite to academic legal authority is changing, however, at least in Commonwealth countries. And it is now also accepted judicial doctrine that where an agency has statutory discretion, that agency may not fetter its discretion.81

An American student of this progressive movement in judicial review, cannot fail to be struck by the development of these doctrines in the English and Commonwealth literature—all the more so because of the absence of any parallels in American legal experience. It appears to be easy enough for almost anyone to sue almost anyone else in the United States—often with almost complete impunity with regard to costs despite the statutes which call for awarding costs, the so-called “American rule”. But there is very little administrative law support to challenge purely discretionary administrative decision.

Ironically, resort to judicial review—and to the courts in general—is hampered in Commonwealth countries, by the “English rule” (i.e., the loser pays rule),82 which particularly in Hong Kong, means that anyone without substantial financial backing—or legal aid—faces the threat of bankruptcy in going to court at all83—let alone in going to court against a Government agency. The intransigence of Government agencies, prepared to spend any amount in public funds in pursuit of the absoluteness of their established policies, is the cruel administrative paradox of an otherwise enlightened common law judicial review system.

As stated at the outset, since Marbury v Madison, judicial review in the United States receives the greatest respect when it involves the U.S. Supreme Court’s challenge to the constitutionality of legislation itself. In light of the quite different concept of the separation of powers, however, this is almost unheard of in England or the Commonwealth. That is exactly what made the assumption of the American Supreme Court’s prerogative by the Court of Final Appeal in Hong Kong so remarkable.

The right to seek judicial review of agency action is taken for granted in England and the Commonwealth. Legal tradition would also acknowledge that right in the United States, as is so clearly enunciated at the level of the states in Warren v Indiana Telephone Co., cited above. In U.S. federal jurisdiction, the Administrative Procedures Act84 provides for judicial review, however, every obstacle is put in its way.

Unlike the position now accepted in England that, where the agency has discretion, “it may not fetter” that discretion, there is very little administrative law support to challenge the substance of discretionary administrative action in the United States. And this agency sovereignty persuasion—in matters concerning the individual as opposed to matters concerning the powers of the courts to determine constitutionality of legislation—reaches up to the Supreme Court. Unless issues of substantive due process, that is, unless a constitutional question arises, the U.S. Supreme Court has taken a negative position with regard to private suits to seek to oblige an agency to enforce its own statutory obligations—even in the event of a “determination” called for by statute (contrary to Warren). As late as 1985, for example, the U.S. Supreme Court declared:

“This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce…is a decision generally committed to an agency’s absolute discretion.”85

Judicial review arises as a statutory right, either under the agency enabling statute, or under related procedural legislation. In the United States, the latter is the Administrative Procedure Act, which provides jurisdiction in the event of:

“[a]gency action made reviewable by statute and final agency action for which there is no adequate remedy in a court.”86

On the other hand, the U.S. Administrative Procedure Act87 provides that agency action is subject to judicial review except:

“where agency action is committed to agency discretion by law”,88

though this is rebuttable:

“where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” 89

In the final analysis, however, the U.S. Supreme Court, which reached for ultimate power to decide on the constitutionality of a statute in 1803, has habitually, strenuously avoided allowing ordinary judicial review as recourse for the individual against often arbitrary agency action. Thus they declared in 1975:

“In a tautological sense, of course, the Board’s determination in a … proceeding is a ‘final disposition’ of that proceeding, but we think that […] Congress defined ‘order’ in terms of a ‘final disposition’ to have some determinate consequences for the party to the proceeding”

Never has a court more clearly relied on the self-serving arguments of one party. Here, the Supreme Court knowingly affirms the absurdity of allowing an agency to constrict, though theoretically not to bind, a party by a “determination”, which, by judicial construction is not an “order” and thus lets the citizen languish unable to exercise statutory rights, while the enforcing agency can legally choose nonfeasance:

“As the Attorney General’s Manual on the Administrative Procedure Act 40 (1947) observed: ‘[I]nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication.’ …. We conclude, therefore, that the … determination is not itself a ‘final disposition’ within the meaning of ‘order’ and ‘adjudication’.”90

The Court surely must have been aware that the Administrative Procedure Act appears to deal with the situation where there is no agency final order three times:

-“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”

– “A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.” And

– “Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order…”.91

Nevertheless, the Court has spoken and agencies continue to invoke such precedent.

B. The Model of Public Policy Management in Management School Perspective

For the same reasons, the concept of “Public Policy Management” promoted by the leading American professional schools is worrisome, because it tends to suggest that pursuit of well-ordered, and efficient management is or should be an exclusive goal of a school dedicated to training leaders for government service. Although its program of instruction may be multi-disciplinary, the impression is that effective managers only need to draw on the most modern and efficient administrative means to accomplish their respective mandates. The comprehension that anyone could ever legitimately challenge the legal basis of such a decision, let alone of a policy of such an agency, is essentially non-existent.

The field of public policy administration and management is today, perhaps more than at any other time in history, the chosen career of dedicated and highly trained professional people. Specialized graduate schools offer professional degrees in public administration, public policy, and health management fields that replicate the technical training and sophistication of the leading schools of business management. The professional training is interdisciplinary in nature, emphasizes strong mathematical and statistical analytical skills, and takes full advantage of all the latest information technology. In brief, the professional public policy management graduate comes to the job with an extensive range of abilities and experience enabling him or her to address the problems of the increasingly complex world of policy analysis and public policy management.

Yes, public policy management graduates do come prepared with advanced knowledge of relevant agency and policy statutes, and regulations. The graduate will also early on have specialized in such source areas of policy formation as: national security; local, state, or urban policy; crime and law enforcement; and/or education and social welfare policy; and will have studied and addressed the wide range of political, economic goals, of the most diverse social and ethnographic constituencies, involving among other things questions of race, ethnicity, gender equality, handicap, sexual orientation, aging, and/or child and elder abuse. For all of the above demands and procedures, the professional graduate will have at his or her fingertips knowledge of the design, implementation and management of appropriate policy measures and information systems.

If one believes that these particularistic social political interest group concerns represent the only source of challenge to policy goals, public policy management graduates are trained to formulate policy to incorporate these specific interest areas, but typically the public policy management graduate does not envision any source of an individual’s challenge beyond such an organized social political constituency. Such skewed vision is bad enough with respect to protection of the rights of individuals adversely affected by agency action in the United States. The leading American policy management schools are also the training grounds for professional students from developing countries, which need these advanced administrative skills, but do not deserve further encouragement in the construction of high tech absolutist regimes.

While conceivably they prepare their graduates in every other way, strangely, the professional Public Policy Management Programs seem to provide very little in the way of applied legal study or equitable consideration. True, it is often possible for the MPPM or MPPH to take a joint degree in law. But what that means is—outside the common first year courses—the Policy Management student generally only concerns him or herself with agency regulatory matters. The truth is that for Law graduates as well, unless they have reason to be concerned with particular equitable or policy formation concerns, law graduates may also be absorbing only black-letter law.

C. Lessons for Public Policy Management from Systems Dynamics

The wide ranging training of the Public Policy Management graduate notwithstanding, it habitually leads to strain in their understanding that law is not simply created for ease of social or agency management. Recent cases in England reveal that agencies repeatedly have had great trouble dealing with such fundamental legal doctrine as, for example, “duty of care”. In other words, a most highly trained professional and dedicated agency staff may, despite best intentions, and admirable policy arrangements, nevertheless discover that, in that country at least, it too is subject to the most basic liability for negligence regardless of whether or not it adhered to all the steps mandated in its enabling statute.

A series of English cases in the last decade have dealt with the problem of whether a public agency could be sued for liability allegedly incurred in the exercise of its statutory functions. The agencies naturally moved to have such actions struck out. It is true that generally policy would until then not have permitted a government agency to be sued for discretionary exercise of statutory functions. However, government agencies today exercise much more far-reaching powers than they did in days when such protective judicial policy was first articulated.

Whatever else it has meant, judicial review heretofore did not imply liability of the government agency for the consequences of its statutory mandated decisions. Moreover, policy considerations traditionally prevented a government agency from being sued for performance—or, on its own assessment of the situation, non-performance—of a statutory duty.

A recent case has revealed the severe tensions that lie below the surface logic of this policy. In Osman v United Kingdom92 a family had alerted the police to the threatening obsessive behavior of a teacher with regard to a pupil and his parents. Although they confirmed the situation, the police refused to take preventative measures because there had thus far been no overt action on the part of the teacher to carry out the threats. When, after tragic events occurred, the father was killed and the son injured, the survivors sued, the courts dismissed the claims of the family against the police on grounds of policy. The Osmans then took the case to the European Court of Human Rights, which held that, the merits aside, absolute immunity was contrary to the European Convention of Human Rights. Article 6 of that Convention guaranties the right to a hearing before a tribunal that can determine a person’s civil rights and obligations, which a policy of absolute immunity of the police would prevent.

This procedural advance could ultimately allow a claim for agency negligence or nonfeasance. Considering that case law in the last half of the 20th century demonstrates an increasing judicial recognition of professional liability for injury where business organizations or individuals were not bound to the injured party by contract, but were acknowledged to be in close “proximity” to the injured party, and reliance was “foreseeable”,93 it was perhaps only a matter of time before a court would be asked to decide whether it was tenable to ignore the question whether it was fair, just, and reasonable to ignore potentially negligent exercise of government agency action also undertaking services in similar proximity to a party who foreseeably was also potentially subject to injury.

This question was addressed in England in cases such as Barrett v Enfield London Borough Council,94 for example, where a plaintiff who had been subject to a care order of a government agency from the age of 10 months, sued for damages for personal and psychological injury incurred as the result of alleged neglect stretching over nearly all of his life.

Great anguish has arisen in debate over “policy” hamstringing of exercise of discretion called for by statute. However, perhaps the most “progressive” innovation in public law doctrine by far is that of “legitimate expectation”, the heretical doctrine that if a government agency does give an undertaking to do something to carry out its mandates, “fairness” and “reasonableness” may be called upon to oblige the agency to do what it has given an “undertaking” that it would do.95 That is in England or the Commonwealth it may. The doctrine was also extended to Hong Kong before the handover. Unfortunately, the very concept is unheard of in the United States.

Thus the new frontier in research interests in public policy management lies in the integrity and responsiveness to the public of administrative agencies. The concept that “law” represents solely legislative command, and/or can be read exclusively and literally from a particular enabling statute or subsidiary legislation, may support strong administration, but deprives the public of recourse to the more essential ideals of legal tradition. For example:

That all of the law is in force all of the timenot only the agency’s most favored provision of an enabling statute. In the words of Marbury v Madison: “If two laws conflict with each other, the courts must decide on the [extent of the] operation of each.”

In their determination, the courts will be guided in their interpretation by the overall objectives of the statutein traditional theory: “purpose of law”, not simply by the policy or enforcement efficiency objectives of the agency. In the words of Lau Kong Yong: “the [agency] must have regard to the overall objective of the statutory scheme.”

That where the agency is called upon by statute to exercise discretion in individual cases, it may not distance itself from exercise of discretion by adherence to a rigid policy for all cases. In the words of the leading English administrative law authority: “A decision-making body exercising public functions which is entrusted with a discretion must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases. It may not ‘fetter’ its discretion.”96

Yet, the most favorable theory of judicial review notwithstanding, fear of exercise of the right of access to the courts amounts to denial of access. If unqualified adherence to the “English rule” allows a rigidity of the courts to deny discretion in awarding costs where they would be bound to oppose such adherence to any such single-minded policy by a government agency, must be repugnant to the common law. Inevitable as that deduction may now appear to be, however, no final decision has been reached on that matter.

This dilemma has been mitigated to some extent in Commonwealth countries by a number of recent developments in judicial review of administrative action. But legal tradition can be illusory where judicial review or access to the courts is limited. While recognition of this problem is important in the older societies of law, it is crucial in the development of code law in societies where practically no other basis of legal tradition exists. Accordingly, while this is a vital concern for research in developed countries, it is also a key element for a balanced “Public Policy Management” perspective in developing societies of law.

Viewed collectively, then, what is the situation in “Public Policy Management” and why is there a “Crisis” in Judicial Review of Administrative Action? Public Policy Management is the doctrine of the leading professional graduate schools. Their graduates may not occupy all leading positions everywhere, but they do represent the model of the most dedicated who have enjoyed the most advanced training that the leading professional schools have developed. They are the model for all the rest. And they draw students from all over the world. Therefore, sadly, because the leading public policy management schools are largely in the United States, students absorb the most regressive legal policy notions in the common law world.

Decisions in Judicial Review, at least in the Commonwealth countries, represent a kind of intellectual progress. Each is precedent or persuasive somewhere. All may be argued as persuasive in common law courts—depending upon the degree that such decisions may have been followed in that jurisdiction. Yet, whereas, the principles established in these decisions are momentary triumphs in the minds of the courts—each is immediately capable of being overlooked or forgotten, or overruled, in the broad weave of what else the law is.

After 200 years, the principles in Marbury v Madison are doctrine in the United States—though aspects of them may also have to be reargued from time to time. But, let us remember that they are doctrine in the United States today because President Madison followed them in 1803—and every American president, except Jackson in the notorious Cherokee lands cases,97 has followed them ever since.98 Marbury won his right to have the credentials of office, awarded in the previous administration, to be delivered in the new administration. No one has ever argued that Marbury would be a better justice of the peace, the office to which he had been appointed. Rather, the Court had merely decided that, if Madison wanted to remove a justice of the peace, he must do so by law, but meanwhile the law did not permit withholding that man’s credentials of office.

The Government of Hong Kong did not follow the novel decision of the new Court of Final Appeal in Hong Kong in 1998—by which the CFA had set the amendments to the Immigration Ordinance out of force.99 Scholars of law will continue to debate the circuitous route by which the Government of Hong Kong obtained an “interpretation” of the Basic Law from the Standing Committee of the National People’s Congress, which the CFA obligingly determined that it must follow. But the truth is that the CFA was on weak ground to begin with.

More worrisome is whether the CFA will be followed in the decision that ended the constitutional crisis in Hong Kong. There is authority in the Commonwealth courts that where an agency has discretion, “it must not disable itself from exercising that discretion in individual cases.” Essentially that rule is embodied in Lau Kong Yong—the decision that ended the crisis. But the Court did not hold that a child with no relatives on the mainland should not be separated from his family in Hong Kong. It held that: “the Director must have regard to the overall objective of the [Immigration Ordinance’s] statutory scheme”. Better, perhaps, for the long run of history. The Court declared a basic principle of law by which an administrative decision should be made. But it gave no order. Therein lies the difference between law and policy. Depending upon the intransigence of Public Policy Management, the Court may just have been raising its voice in the wind.

Eugen Ehrlich, the inventor of the concept of sociology of law, modestly defers to the logic: “…a book must be written in a manner that permits of summing up its content in a single sentence.”100 If that be true, then how much more should an essay, as much a piece of advocacy as this has been, fall under the same rule. This author is certainly not the originator of the concept of system dynamics theory, which is now in vogue. As for the systems approach, Spiro has shown that it also goes back as far as Hobbes in the 17th century.101 My own small contribution is merely to suggest to quantitative students, for whom the cumulative perspectives of decision-theory and systems theory must be more familiar than they are to the more single-minded law student, to take their law more skeptically—and more comprehensively—than it is doled out to them by the clerks behind bullet-proof glass.

Surely, when schools of public policy management take “a flexible and interdisciplinary approach”, and when agencies and agency officials “look at societal problems from many different perspectives, using technology, quantitative and qualitative analysis and group dynamics to arrive at innovative solutions” “that include quantitative analysis, modeling, [and] economics”, society is doubtless being better served. Advocates of public policy management training will argue that the foregoing elements are the best of decision-support theory in practice. And that may well be the case. But, “law” is not all rules and rule-making. Judgment also calls for exercise of those talents and training—within the context of the science of legal reasoning. If in all fairness, we cannot reach similar conclusions in similar cases, the likelihood is that such judgment should be reviewed.

Endnotes

1 De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed., p. 505. Introduction of a judicial rule like this in the United States would bring about a revolution in American law. It is widely quoted in all sorts of contexts in the U.K., where simple conflicts of interest are involved. It has also been cited by the courts in Hong Kong. However, it is completely ignored by government agencies there. The author would like to thank Mr Vincent Kin Ting Tsang, b.Eng., M.Phil. (computer science), for last minute provision of the jpg inserts which were essential to preserving the meaning of the text.

* A.B. (Hons.) Harvard; M.A., Yale; Dr.Jur., Freiburg i. Br.; JurisDr., Penn; LL.M., Virginia; Visiting Fellow (Life Member), Clare Hall, Cambridge, sometime Adjunct Professor of Law, Hong Kong University of Science & Technology.

2 Gustav Radbruch (1956), Der Geist des englischen Rechts [The Spirit of English Law] (Göttingen: Vandenhoeck & Ruprecht), p. 38. (Italics added.)

3 Sir Karl Popper, Conjectures and Refutations: the Growth of Scientific Knowledge (London: Routledge, 1992, ©1989).

4 See Glanville Williams, Learning the Law, 9th ed., 1973, p. 67f.

5 Brett, M.R., in Munster v Lamb [1883] 11 QBD 588, 601.

6 But see now Lord Goff in Kleinwort Benson Ltd. v Lincoln C.C. [1999] 2 AC 349, at 377: “It is universally recognised that judicial development of the common law is inevitable. If it had never taken place, the common law would be the same now as it was in the reign of King Henry II; it is because of it that the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live. The recognition that this is what actually happens requires, however, that we should look at the declaratory theory of judicial decision with open eyes and reinterpret it in the light of the way in which all judges, common law and equity, actually decide cases today.“

7 Gustav Radbruch (1956), Der Geist des englischen Rechts, supra n. 2, p. 38.

8 Denning,“From Precedent to Precedent,” the Romanes Lecture, 21 May, 1959, (Oxford: Clarendon Press, 1959). See also, The Discipline of the Law (London: Butterworths, 1979), p. 292f.

9 N.B. in Candler v Crane Christmas & Co., Ltd., 1 All ER [1951], 426, citing Knight Bruce, LJ, in Slim v Croucher [1860], 1 De G F & J. 518, 45 ER 462 (an analogous case ninety years earlier): “A country whose administration of justice did not afford redress in a case of the present description would not be in a state of civilisation.”

10 See London Tramways Co. v London County Council [1898] AC 375, 380.

11 Denning had been appointed to the Court of Appeal, the highest court below the House of Lords, in 1948, then to the House of Lords in 1957. In 1962, he returned to the Court of Appeal as Master of the Rolls (i.e., as Senior Judge). He later recalled that he had done this by choice, because if he dissented in the Court of Appeal, the House of Lords might have to consider it. If he dissented in the House of Lords, he could be ignored.

12 Denning’s position is best explicated in The Discipline of the Law (op.cit.), at p. 292. “Just as the propositions of the scientist fall when shown to be in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.”

13 [1966] 1 WLR 1234.

14 Among recent works, See: e.g., F.A.R. Bennion (1997), Statutory Interpretation, A Code, 3rd ed. (London: Butterworths), a key reference work; Sir Rupert Cross, John Bell and Sir George Engle (1995), Statutory Interpretation, 3rd ed. (London: Butterworths), basic general reading. See also three diverse and topical approaches: Jim Evans (1988), Statutory Interpretation; Problems of Communication, (Auckland: Oxford University Press); D. Neil MacCormick and Robert S. Summers (1991), eds., Interpreting Statutes: A Comparative Study (Aldershot, Hants; Brookfield, Vt.: Dartmouth); Colin Manchester, David Salter, Peter Moodie and Bernadette Lynch, Exploring the Law; The Dynamics of Precedent and Statutory Interpretation (London: Sweet and Maxwell, 1996).

15 Lord Devlin of West Wick (1984), “Foreword,” Lord Denning: the Judge and the Law, J.L. Jowell and J.P.W.B. McAuslan, eds. (London: Sweet & Maxwell), p.v. (Italics added.) These words on liberalization of the law from Lord Devlin are particularly noteworthy in light of critical commentary unleashed by his book, The Enforcement of Morals (London: Oxford University Press, 1965) for which he is best known outside Britain.

16 From a lecture while Pound was acting as advisor to the Ministry of Justice of the Republic of China (1946-48), “Development of Law in Modern China,”Sino-American Relations (Taipei), 2:2 (1976), p. 63 (previously unpublished).

17 Lon L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart,” 71 Harvard Law Review 630 (1958).

18 See, Norbert Wiener, Cybernetics, or Control and Communication in the Animal and the Machine (Cambridge, Massachusetts: The Technology Press; New York: John Wiley & Sons, Inc., 1948).

19 System Dynamics Society, Newsletter, October, 2004, at: http://web.mit.edu/sdg/www/what_is_sd.html.

20 See, e.g., Richard Susskind, The Future of Law, and Transforming the Law (Oxford: Oxford University Press, 1996 and 2000) and similar works. “How law is retained and disseminated powerfully shapes what lawyers think and do….,” Richard Ross writes , “Communications Revolutions and Legal Culture: An Elusive Relationship,” 27 Law and Social Inquiry 637 (2002), a Review Essay on two works of Ethan Katsh, The Electronic Media and the Transformation of Law and Law in a Digital World (New York: Oxford Univ. Pr., 1989 and 1995).

21 See, esp. De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed.), p. 505, cited at the head of this article.

22 Craig W. Kirkwood, System Dynamic Methods: A Quick Introduction, Ch. 7, p. 86, accessible at http://www.public.asu.edu/~kirkwood/sysdyn/SDIntro/SDIntro.htm, a website devoted to resources related to decision analysis and system dynamics activities at the College of Business of Arizona State University.

23 A composite statement of leading public policy management schools’ goals and curriculum, cited at the head of section 4 below.

24 O.W. Holmes, jr., The Common Law (1881), p. 1.

25 See, e.g., Diamond v Chakrabarty, 447 US 303 (1980). The U.S. Patent Office (PTO) argued that Chakrabarty’s modified bacteria was non patentable subject matter, and, i.a., considering legislative history (the “American rule”), when Congress wanted to permit patentability of living matter (in the 1930 Plant Patent Act) it did so by express legislation. However, the Supreme Court decided the case solely on the basis of construction of the statute (35 USC 101) (the “English rule), finding Chakrabarty’s new bacterium to be patentable as “a composition of matter” and a “new and useful manufacture”, and, incidentally, “the bacterium’s man-made ability to break down crude oil [spills] makes it very useful.” Similarly, in Pepper v Hart [1993] AC 593, the House of Lords broke an even firmer tradition not to consider legislative history (the English “exclusionary rule”). Everyone of the law lords involved affirmed that solely on the basis of construction of the statute, they would have to decide for Inland Revenue. However, the facts of legislative history were so egregious, that all agreed that they could not deny what everyone else in England knew. Nevertheless, see the reservations of Lord Steyn, “Pepper v. Hart, a Re-examination,” 21.1 Oxford Journal of Legal Studies 59 (2001).

26 See, Diamond v Chakrabarty, where no other method or invention had been as successful in dealing with oil spills, which had been numerous at that time, seemed, at least, to have been in the Court’s mind.

27 See, Sony v Connectix, 203 F.3rd 596 (9th, 2000), where it was held that violation of copyright in copying the bios of Sony’s invention was “fair use”, because it was “necessary” in order to learn the means to play the Sony games on a computer (which was also “fair use” because it was “transformative”).

28 See, Dissent of Denning, LJ, in Candler v Crane Christmas, [1951] 1 All ER 426 (CA) (cited above at n. 9), which position the House of Lords affirmed 12 years later in Hedley Byrne & Co v Heller and Partners, Ltd. [1963] 2 All ER 575 (HL).

29 O. Lee,“Engineering Students Moot Court Debates: ‘Is Software Patentable?’ ”Journal of Information Law & Technology, 2002 (1) JILT, http://elj.warwick.ac.uk/02-1/lee.html.

30 See: e.g., O. Lee with multimedia assistance of James She,“ ‘I Want To See—Not To Be Seen!’ Teaching ‘Moot Court’ Debating Skills through Interactive Multimedia,” in Jeff James, ed., Quality in Teaching & Learning in Higher Education, (Hong Kong: University Grants Committee, 1999); Abstract: http://ettu618.edu.polyu.edu.hk/abstracts/45.html.

31 See: H.K. Food and Environmental Hygiene Department (FEHD) press release: “Speaking at a press conference this (June 23 [2003]) afternoon, Deputy Director of the FEHD, Mrs Ingrid Yeung, said that a ‘zero tolerance’ and stricter enforcement will be taken against public cleanliness offences. She reminded that following recent amendment of the Fixed Penalty (Public Cleanliness Offences) Ordinance, the fixed penalty for littering, spitting, unauthorized display of bills or posters and fouling of streets by dog faeces had been increased from $600 to $1,500, as part of the Team Clean crackdown on these offences. “We will enforce the new fixed penalty system vigorously and impartially to bring home the message of keeping a clean and healthy environment” she stressed. http://www.info.gov.hk/cleanhongkong/en/media_room/press.20030624.html. The TV news that night reported the first two persons caught and fined were a man and his foreign domestic worker who earned only HK$3,000 a month.

32 Kao, Lee & Yip v Edwards (1993), Unrep. Civ. App. No. 97 of 1993, CA; [1993] HKLY, case 198.Italics added.

33 Catnic-Components, Ltd. v Hill & Smith, Ltd., [1982] R.P.C. 183, 243.

34 This matter has been extensively treated by Richard Susskind, in The Future of Law (Oxford: OUP, 1996); and, Transforming the Law (Oxford: OUP, 2002); and elsewhere.

35 Sir Carleton Allen (1964), Law in the Making, 7th ed. (Oxford: Clarendon Pr.), p. 1.

36 The tradition that the people are the ultimate source of legislative power and, therefore, of limitations on the exercise of power, is as old as Western civilization. This issue was quite literally argued as Europe emerged from the Middle Ages. St. Thomas Aquinas, spokesman for the papal party, which contended with the Holy Roman Emperor for political power, argued that a central authority had power to legislate—in the name of the whole people: “…to order anything to the common good belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people….” “Treatise on Law” from The “Summa Theologica”, 3rd ed., trans. Fathers of the English Dominican Province (London: Burns, Oates & Washbourne, 1941), part 2 (1st pt.), vol. 8, p. 6 (Q90, art 3) (italics added). Marsilio of Padua, the leading advocate of the Emperor’s party, followed a similar line of reasoning, while arguing that the whole people still retained legal limitations over the central authority:“The…whole body of citizens, or the weightier part thereof, is the legislator regardless of whether it makes the law directly by itself or entrusts the making of it to some person or persons who cannot be the legislator in the absolute sense….” The “Defensor Pacis”, vol. 2, tran. Alan Gewirth (New York: Columbia Univ. Pr., 1956), p 45 (Discourse 1, ch.XII).

37 See, e.g., Denning, LJ, dissenting in Candler v Crane Christmas & Co., [1951] 1 All ER 426, at 431, citing Brett, LJ, in Slim v Croucher. Quoted at n. 9, above.

38 This crucial dilemma in access to the courts in Hong Kong is treated in the Postcript to: O. Lee (2000), “Media Alarm and the Handover: the ‘Right of Abode’ Cases and the Constitutional Crisis in Hong Kong”. 10-2000 Humboldt Forum Recht, http://www.humboldt-forum-recht.de/10-2000.

39 Ibid.

40 John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks (Berkeley: Univ. of California Pr.,1975).

41 W.O. Weyrauch, “Law as Mask—Legal Ritual and Relevance,” 66 Calif. L. Rev. 699, 725-26 (1978).

42 W.O. Weyrauch, “Aspiration and Reality in American Law,” in Alan Watson (ed.), Law, Morality, and Religion: Global Perspectives (Berkeley: Robbins Collection Publication, School of Law, University of California, 1996) pp. 217-26.

43 Aristotle, Rhetoric, Book I, Ch. 13, transl. by W. Rhys Roberts, 1954.

44 See: e.g., René David; and John E C Brierley (1996), Major Legal Systems in the World Today: an Introduction to the Comparative Study of Law , 3rd ed. (London: Stevens), passim.

45 F.A.R. Bennion (1997), Statutory Interpretation, A Code, 3rd ed. (London: Butterworths), As he says, “statutory interpretation keys into the whole system of law”, p. 2.

46 C.W. Churchman, The Systems Approach (New York: Dell, 1968), p. 29. Cf. also his Challenge to Reason (New York: McGraw-Hill, 1968); and R.L. Ackoff and P. Rivett, A Manager’s Guideto Operations Research (New York: Wiley, 1963).

47 Herbert J. Spiro has pointed out that systems theory was current in the social sciences well before Churchman and the OR theorists cited below, and has roots going back to Hobbes in the 17th century: Spiro Ch 3, “Systematic Politics,” in, World Politics, The Global System (Homewood, Ill.: Dorsey Pr., 1966); cf. also his paper, “An Evaluation of the Utility of Systems Theory,” in, J.C. Charlesworth, ed. (1966), Political Analysis (New York: Free Press, 1966).

48 See, e.g., E.M. Sinnott, The Biology of the Spirit, 2nd ed (New York: Viking, 1957); and, Matter, Mind and Man: the Biology of Human Nature (New York: Atheneum, 1957; 1966); cf. also Pierre Teilhard de Chardin, The Phenomenon of Man, intro. Sir Julian Huxley(Paris; New York: Harper & Row, 1955; 1965).

49 Joseph Needham, Order and Life (Cambridge, Mass.: M.I.T. Press, 1936; 1968), p. 165ff.

50 Ludwig von Bertalanffy, Problems of Life (New York: Wiley, 1952); Organismic Psychology and Systems Theory (Barre, Mass.: Clark Univ. Pr., 1968); and, General System Theory (New York: Braziller, 1968).

51 C.W. Churchman, Challenge to Reason, (op.cit.).

52 R.L. Ackoff and F.E. Emery, On Purposeful Systems (Chicago: Aldine-Atherton, 1972).

53 Northrop developed this theory in many works, but perhaps most fully in, The Logic of the Sciences and the Humanities (Cleveland: World, 1947; 1969), esp. ch. V.

54 This shared aesthetic sensibility, as it applies to mediational approval is especially elaborated in F.S.C. Northrop, The Meeting of East and West (New York: Macmillan, 1946); and “The Mediational Approval Theory of Law in American Legal Realism,” 44 Virginia Law Review 347 (1958), at 358.

55 See, F.A. Hayek, “Arten der Ordnung [Kinds of Order]” in 14 ORDO: Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft (1964) 3; and subsequently: “Notes on the Evolution of Systems of Rules of Conduct (The Interplay between Rules of Individual Conduct and the Social Order of Actions,” in Studies in Philosophy, Politics and Economics (Chicago: Univ. of Chicago Pr., 1967), pp. 73ff.; and also: “The Results of Human Action but not of Human Design,” ibid. pp. 96ff. Examined in greater length in O. Lee, “The Law of a Free Society Emerges Like the Laws of Economics: F.A. Hayek, from The Road to Serfdom to Law, Legislation & LibertyN.Y.U. Journal of Law & Liberty, Fall, 2004.

56 See: e.g., in The Federalist Papers.

57 U.S. Constitution, 9th Amendment.

58 Kent v Dulles, 357 US 116 (1958).

59 Zechariah Chafee, Jr. (1941), Free Speech in the United States (Cambridge, Mass.: Harvard Univ. Pr.), (italics added). Douglas does not cite to where in Chafee’s learned 600 page collection of essays he gleaned this truism. Chafee does say, at page 32, that the individual interest in free “locomotion” outweighs the “social interest in shipping” that formerly “required the compulsory labor of articled sailors”. But that is certainly a weak basis on which to construct a basic right to travel. I am afraid we owe the honor of articulating authority for this indispensable basic human right in the Kent decision only to judicial law-making by Douglas himself.

60 S.D. Warren and L.D. Brandeis, “The Right to Privacy,” 4 (5) Harv. L. Rev. 193 (1890).

61 Griswold v Connecticut, 381 US 479 (1965).

62 In this connection, see the fascinating article by Reinhard Zimmermann“Statuta Sunt Stricte Interpretanda?, Statutes and the Common Law: A Continental Perspective,” 56 (2) Cambridge Law Journal 315 (1997).

63 The present author has discussed this thesis in: O. Lee, The Legacy of the Buddhist Social Ethic: Legal and Moral Systems in Asian Customary Law , 2d ed. (Cambridge Buddhist Institute Series, forthcoming, 2005); 1st ed. (San Francisco: Chinese Materials Center, 1978).

64 See:Aristotle in Nicomachean Ethics, “ Book 5, translations by: Terence Irwin (Hackett Publ. Co., 1985); David Ross (Oxford Univ. Pr., 1980); J.A.K. Thompson (Penguin books, 1955).With special thanks to Professor David Wiggins, “A Neo-Aristotelian Approach to Justice,” a paper from “Human Nature in Law and Political Morality,” Cambridge Forum for Legal and Political Philosophy, 11-13 July, 2002.

65 Basic Law of Hong Kong, Art. 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”

66 “Interpretation and General Clauses Ordinance” of the Laws of Hong Kong, Cap. 1, Sec. 2A.These are amended as follows: “All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.”

67 I.e., better, “None of the legislators’ business.” This was the then startling conclusion of the Wolfenden Report. Great Britain, Home Office/Scottish Home Department, Committee on Homosexual Offenses and Prostitution: Report of the Committee… Cmnd 247 (London, HMSO, 1957; 1962). p. 24, para. 61.

68 A composite taken from the mission statements of the Gerald Ford School of Public Policy of the University of Michigan and the MPP program of the Woodrow Wilson School at Princeton.

69 See:Ng Ka Ling and the the Director of Immigration, FACV No. 14 (1998) and Cham Kam Nga and Director of Immigration, FACV No 13 (1998). The Government had sought the Immigration Ordinance amendments as a result of the “right of abode” accorded to certain non residents in the Basic Law which only became effective on the date of the “handover”.

70 Marbury v Madison, 1Cranch 137 (1803); 5 US 137.

71 In, e.g., Warren v Indiana Tel. Co., 26 NE2d 399 (1940), 404; 27 Ind. 93.

72 See, e.g., P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law:A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions. (Oxford: Clarendon Pr., 1987).

73 See:e.g., Jeffrey Goldsworthy, The Sovereignty of Parliament:History and Philosophy (Oxford: Oxford University Press, 1999).

74 The Human Rights Act 1998, sec. 10, leaves it in this situation to the legislator to make UK legislation compatible with its human rights provisions by way of a facilitated procedure (Order by Minister, or Order in Council).

75 Atiyah and Summers, ibid., p. 41f.

76 See:Lau Kong Yung and Director of Immigration, FACV Nos. 10 and 11 (1999).

77 Ibid.

78 Ibid., p. 23.

79 Ibid., Mr. Justice Bokhary, citing Jeffrey Jowell, “Of Vires and Vacuums:The Constitutional Context of Judicial Review,” [1999] P.L. Autumn 448, at 460.

80 See, e.g., Peter Stein, “Legal Science during the Last Century: England” in M. Rotondi, ed., La Science de Droit au Cours du Dernier Siècle 40 (1976).

81 This doctrine itself appears to be developed as much through the literature as judicial opinion.<See:De Smith, Woolf, and Jowell, Judicial Review of Administrative Action (5th ed.):“A decision-making body exercising public functions which is entrusted with a discretion must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases. It may not ‘fetter’ its discretion.”

82 This author has discussed this predicament, particularly in Hong Kong, in a “Postscript on Access to the Court,” in O. Lee (2000), “Media Alarm and the Handover:The ‘Right of Abode’ Cases and Constitutional Crisis in Hong Kong,” 2000 (10) Humboldt Forum Recht (Berlin).

83 The reality of this danger was highlighted in 1999, when a comfortably middle class woman, and a member of the Legislative Council attempted to test her rights under the Hong Kong Personal Data (Privacy) Ordinance and lost. Although her own attorneys had donated their time, the award of costs threatened to bankrupt her. Her political friends were able to help her save the day. But this does not offer viable reassurance to others who may have legitimate claims. See:e.g., “Legislator misses deadline to repay legal fees,”BBC Summary of World Broadcasts,” part 3, Asia Pacific, November 22, 2000 (in web-lexis-nexis.com).

84 Codified as 5 USC 701-706.

85 Heckler v Chaney, 470 US 821 (1985), at 831.

86 5 USC sec. 704

87 5 USC 551 et seq.

88 5 USC sec. 701

89 Ibid., at 832-33.

90 International Tel. and Tel. Corp. v Local 134, 419 US 428, at 443-44.

91 5 USC, sec. 704.

92 [1998] 5 B.H.R.C. 293 .

93 See:Caparo Industries Plc. v Dickman and Others, [1990] 1 All ER 568 (HL).

94 Barrett v Enfield London Borough Council [1999] 3 All ER 353. Cf., X [Minors] v Bedfordshire C.C. [1999]. See esp. P. Craig and D. Fairgrieve, “Barrett, Negligence and Discretionary Powers,” [1999] P.L. 626. The author had the privilege of reading a manuscript of this article, but has not been able to access the published version.

95 Dating from Denning, MR, in Schmidt v Secretary of State for Home Affairs, [1969] 1 All ER 904, at 909, applied to Hong Kong in Attorney General of Hong Kong v Ng Yuen Shiu , [1983] All ER 346, but sadly still not recognized in the United States. Parties have claimed various “legitimate expectations” before U.S. courts, as, e.g., of privacy, but not to my knowledge of a claim of performance by an administrative agency. Cf. Søren Schønberg, Legitimate Expectations in Administrative Law (New York:Oxford University Press, 2001), which deals with English, French, and E.C. law.

96 Another salutary doctrinal advance that has not yet reached the United States.

97 In Cherokee Nation v Georgia, 30 US 1 (1831), Marshall, CJ, held that the Cherokees were a “distinct political society,” a “domestic dependent nation” subject to the laws of the United States, not of Georgia which was trying to drive them off their lands. Favorable as the language of the decision seemed to the Cherokees, the case against Georgia was dismissed as if that disposed of the matter. It did not, and the same issues were raised again in Worcester v Georgia, 31 US 515 (1832), in which Marshall held that “the Cherokee nation…is a distinct community occupying its own territory in which the laws of Georgia have no force. The whole intercourse between the U.S. and this nation, is by our Constitution and laws, vested in the Government of the United States”.

98 President Andrew Jackson, the “champion of the common man” had fought against the Indians and appears to have shared the common man’s hatred for them. Contrary to the policy first enunciated in Marbury, Jackson is widely reported to have said: “John Marshall has made his decision, now let him enforce it.” Jackson did enforce the Indian Removal Act (1830), by which the Indians were supposed to “exchange” their lands in the eastern United States for lands west of the Mississippi, a trek on foot of a thousand miles, one of the darkest chapters in American history.

Professor Robert V. Remini, who has written a number of books on Jackson, apparently denies that Jackson ever made the statement on Marshall’s decision long attributed to him, in Andrew Jackson and his Indian Wars (Harmondsworth: Penguin, 2002) (which this author has not yet seen). However, the book jacket is said to report:“Remini contends that despite the injustice and the atrocities that accompanied the removal, Jackson in fact ensured the tribes survival, for they certainly would have been wholly exterminated had they remained in place.” With respect, this could have been put in another way. “The time cometh, that whosoever killeth you will think that he doeth God service….”(John 16.2).

99 Discussed further by this author in “Media Alarm and the Handover”, cited in note 38 above.

100 E. Ehrlich, Fundamental Principles of the Sociology of Law, transl. by W.L. Moll, Foreword.

101 See note 47, supra.

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