Todays Facebook and the media in Hong Kong is flooded with official speeches from yesterdays Opening of Legal Year ceremony. Apart from the Official ceremony in the evening, there was an unofficial Christian Service held for the Opening of the Legal Year during lunch time. The service was officiated by The Most Rev Paul Kwong (Archbishop of Hong Kong Sheng Kung Hui) and His Eminence Cardinal John Tong Hon (Bishop of the Catholic Diocese of Hong Kong), with the Old Testament read by Mr. Martin Lee, SC and New Testament read by The Hon Chief Justice Geoffrey Ma. Below is the text of the Homily preached by The Reverend Dr. Philip L. Wickeri (the Archbishops Advisor on Theological and Historical Studies) at the unofficial Christian Service on the Opening of the Legal Year, 12/1/2015. ***************************** Opening of the Legal Year St. John’s Cathedral 12 January 2015 1:00 pm Deuteronomy 19: 15-21 Galatians 3: 19-24 The Salem witchcraft trials in late seventeenth century Colonial Massachusetts are the setting for Arthur Miller’s award winning play, The Crucible, first performed on Broadway in 1953. This was a difficult period in modern American history, the McCarthy era when many Americans were wrongly accused of disloyalty. The Crucible can be read on many levels: it is part history, part allegory, part political commentary, but it is above all an engaging drama. In the second scene of Act II, the defender of a woman who is accused of witchcraft, apologizes to Judge Danforth by saying he is no lawyer. The Puritan Judge upbraids him saying, “The pure in heart have no need of lawyers.” Miller recalled these words during his first visit to China in the late 1970s, when he was told that there were then less than two hundred lawyers in the entire country. Miller’s irony was not lost on his hosts, for even then, the Chinese government was beginning to emphasize the importance of the rule of law in its program of openness and reform. The pure in heart may indeed have no need of lawyers, but the rest of us, including all of us gathered here today, need jurists for our own protection and the maintenance of social order. In our hearts of darkness, and in our imperfect society, we need the law to restrain, correct and guide our institutions and administer justice. Welcome to the opening of the legal year. You do not need me or anyone else to remind you that the rule of law and the independence of the judiciary are foundational for Hong Kong society. This is part of what has made Hong Kong unique. We are the only common law jurisdiction in Greater China. We have something to contribute by way of what we can model to the world. The fact that there has traditionally been a church service marking the opening of the legal year is testimony to this uniqueness. It indicates that the rule of law is important for our community as a whole, and not just for barristers, solicitors and judges, politicians and the elite. We all have a stake in what you do on a day-to-day basis, and so we come here, at the beginning of the new legal year, to reaffirm our commitment to the rule of law. The earliest record of this service that I have been able to find in our Hong Kong Sheng Kung Hui Archives was in 1934, when Bishop R. O. Hall spoke to the assembled justices, solicitors, barristers and people of the community. There he made a medical analogy to describe the judicial profession. I quote: The judicial profession is to the community what the anesthetist is to the medical profession. The anesthetist, by removing consciousness, converts a person into an impersonal organism. In the judicial profession, you are continually compelled to apply local anesthetics to the body corporate of society. You treat this person or that person as less than personal, for the sake of the health of the rest of society. This breadwinner or that, this father or that brother, must be reduced to complete uselessness to those dependent on him, for a fortnight, or six months or twenty years, not for his own good, but for the sake of others…The central point (here) is that we must realize the limitations of judicial procedure (in addressing the ills of society). (SCMP, October 22, 1934) I am not sure if you in the legal profession like having yourselves compared to anesthetists, and certainly an analogy from eighty years ago does not fully hold today. Bishop’s Hall’s point, however, was to suggest that justice is not the final ideal, for justice is not necessarily moral. Confucius said as much when he observed that law cannot generate human virtue. The problem was that he could never find a virtuous ruler to put his principles in place. Morality begins where justice ends, justice must be impersonal to be objective. In contrast, morality and ethics must be personal to be believable and compelling. Neither law nor morality are for the pure in heart, but they can work together for the maintenance of society, the promotion of equality and fairness before the law and the improvement of the human condition. 2014 was a difficult year for Hong Kong. The events of the last six months have revealed the deep divisions in our society. Politically, economically, and to some extent generationally, we are divided as never before. A large part of our division centers on different conceptions and interpretations of the word “democracy” as applied to Hong Kong: the nature of “true” democracy, the elections proposed for 2017, the interpretation of “The Basic Law,” the pace of democratic reform, the relationship between the Hong Kong SAR and the National People’s Congress. I cannot begin to wade into these deep waters in this address, but I believe it is important at the beginning of a new legal year to comment on the relationship between democracy and the rule of law. Democracy has to be “learned” in any society or culture, and such learning depends upon a variety of factors. In his classic study The Social Origins of Democracy and Dictatorship (1966) Barrington Moore traces the learning of democracy in the transition from agricultural to industrial society, and the emergence of a national bourgeoisie, and the development of stable political institutions. We are far beyond this stage in Hong Kong, and we certainly have the conditions for democratic governance. But because of our colonial past, our return to China in 1997, and our unique situation as a common law jurisdiction under “one country, two systems,” we have a ways to go in the development of democratic political institutions, broadly based political parties and representative political leadership. In short, our politics, and this is true regardless of one’s political position, are not yet well established or mature. Democracy has to be learned, but I want to suggest that law can be its own schoolmaster. In this respect, I am arguing for a normative view of the law, a view that is not uncontested, to be sure, but one that is imminently practical for our purposes and for our common future. By a normative view of the law, I mean that the law can be the source of its own normativity. The relation between laws and actions is one of obligation, and the normativity applies equally and to everyone. It is the duty of public officials and all citizens to follow the law. If they choose not to follow the law, for whatever reason, then they should be subject to the consequences of not following the law. This is true even if they disagree with the law. The motivation for following the law is not moral – law ends where morality begins – but obligatory because it is good for society as a whole. Insofar as it is applied to every member of the society, and as long as it is consistent with pre-existing and generally accepted norms, the law teaches citizenship, or in the words of scripture, it becomes a disciplinarian. The sixteenth century Protestant Reformer John Calvin (1509-1564) was a lawyer trained at the University of Paris. He used his legal mind to construct The Institutes of the Christian Religion, a systematic interpretation of theology that may be regarded as a classic of Christian theology. His method of argument is legalistic, but framed by his understanding of God’s grace. You should read Calvin, if you haven’t already, for it often takes one trained in the law to follow his argument. In The Institutes, Calvin speaks of the threefold function of the law. His interpretation is still instructive in understanding the ways in which law can function in society and promote democracy. He is still cited in many theological, political and legal texts. His views also reflect what I term a normative view of law. The first use of the law, according to Calvin, is to be a mirror reflecting both the perfect righteousness of God and our own shortcomings. In other words, the divine law, or natural law, reflects an unattainable ideal against which we can measure ourselves and our legal institutions. We measure ourselves but we always come up wanting. St. Augustine wrote “the law bids us, as we try to fulfill its requirements, and become wearied in our weakness under it, to know how to ask the help of grace.” No one can fulfill all that is implied by divine law. This was suggested in our second reading at this service. This first use of the law, then, is beyond the capability of the judicial profession to control or interpret, but it is a standard to what a society guided by justice and law may aspire. The second function of the law is its civil use, to restrain evil. The law cannot change the human heart, but it can curb or inhibit lawlessness, greed and all forms of wrong-doing. By its threats and judgments, as well as its promises and protections the law shapes society. This is so especially when it is backed up by a civil code, a legal polity and extensive legal precedent. The law, in this sense, secures civil order; protects individuals, institutions and their property; and contributes to social cohesiveness. This understanding of the law is reflected in our first reading. It is related to what Bishop Hall said about the anesthetic function judicial profession. More to the point, it is what the Chief Justice spoke of in last year’s address to the Judiciary when he spoke about “the integrity of the law.” The legal year begins and ends with interpretations of the second function of the law, and this is where we spend most of our time. The third function of the law is far and away the most interesting, the most creative and the most relevant to our discussion of democracy and the rule of law. The law can function to guide people into the creation of a more just society. The law, in other words, can refer us back to the more perfect divine law and help us to become better individuals in a more just society. The law does not just condemn (the first function), not just restrain (the second function), but also guides and creates in us a rule of life that can be a rule for all. In this third sense, the law can be an instrument to promote of human flourishing and social well-being. It cannot by itself create morality or democracy, but it can help to create social conditions under which these become more possible. You have a full agenda in the opening of this new legal year, and you bear important responsibilities. We, in the wider community, are in your debt, and we expect much from you, as you demonstrate the integrity and impartiality of the law. “The pure in heart have no need of lawyers,” or of justices, barristers, solicitors or attorneys for that matter. But we who live in the real world, in a deeply divided society, where our time is running out, look to you to help us see the way forward. We intend to hold you to account, so get on with what you have to do. Philip L. Wickeri Hong Kong Sheng Kung Hui
Posted on: Tue, 13 Jan 2015 05:12:03 +0000
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