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Hong Kong Law Journal

1998

Analysis Liberalism, Democracy, and Hong Kong

James Allan
Copyright (c) 1998 by Sweet & Maxwell Asia; James Allan

Citation: 28 HKLJ 156 *1 To note that Hong Kong of late has been, and remains, at the centre of the world's interest and attention, and will stay there for some time to come, is hardly an original observation. To go on to say that the bulk of that interest revolves around the outcome of a most unlikely experiment, one in which two notably distinct political and economic systems are being peacefully fused, is no more novel. Indeed an abundance of writing on the subject already exists, with little immediate prospect of a reduction in its volume. Part of that abundance is historical, recounting how both China and Hong Kong came to be where they are now; part is analytical, exploring the institutions, economies, and sociological and cultural similarities and differences that now exist; and part is predictive, venturing forecasts, prognostications, premonitions, and - perhaps most honestly - outright guesses about what the future has in store. *1 Of especial significance to many is the fate of Hong Kong's (relatively long-established) liberal and (extremely recent) democratic heritage with the change from British to Chinese sovereignty. What are the prospects for liberalism and democracy now that sovereignty has shifted? In this paper I shall not directly address that question. Rather than indulge in predictions, I want instead to look more closely at democracy and liberalism, their essentials and non-essentials, and how they can and do fit together. Such an analysis will not make divining the future easier or more accurate. It may, however, help to penetrate the obfuscating rhetoric and instinctive emotional responses often associated with the terms democracy and liberalism. This in turn may assist those affected and interested to be clearer about what precisely each finds valuable in the liberalism and limited democracy that Hong Kong currently enjoys. Such clarity may even allow one imprecisely to arrange in order of importance those features of Hong Kong's liberal democracy he most values and hence thinks most worthy of defending. Liberalism *1 Let me start with liberalism. At its starkest, in the liberal world-view the individual is the basic, core currency, the starting point of political philosophy. Each separate person is an irreducible unit of society. Social life, the community, is conceived as being made up of distinct and distinguishable individuals. On the theoretical plane then, the stark liberal defines society, without qualification, in terms of a totality of individuals; the latter comes conceptually before the former. *1 A great deal follows from this way of envisaging social and political life. Separateness from others, to start, needs protecting. [Liberals'] constant *157 concern, therefore, is to preserve their separateness, to construct all kinds of high protective walls around themselves, and to ensure nothing enters, let alone settles, in their being without their knowledge and scrutiny. 1 A good liberal society, as represented in this extreme formulation, is therefore one which has these protections in place. For us today they most often take the form of rights or entitlements, frequently constitutionally not just legislatively protected, to such things as (i) freedom of speech, of religion, of association, of movement, and of assembly; (ii) life and a guarantee against the use of torture; (iii) certain standards of criminal procedure and police investigative techniques; and (iv) a uniform application of the rules to all (ie formal equality) without irrelevant criteria being applied (ie no discrimination on bases such as sex, religion, or race). *2 Related to this atomistic view of society (under the Parekhian version of liberalism) is the notion of self-ownership. Most forms of liberalism present this in terms of autonomy or choice or self-determination. 2 Each individual in liberal society, according to this main branch of liberalism,

must be free to make his or her own life choices. Morality itself can be seen to depend on it. Hence the Kantian liberal ties the morality of individuals' acts to their having made choices, free choices. Only a choosing being, on this view, can be a moral being and so it follows that a liberal society should leave the individual as free as possible to make his or her own life choices. *2 John Rawls makes a broadly similar point when he says that a liberal state must be neutral between competing conceptions of the good. 3 For the state to adopt one particular version of the good would make it harder for dissenting citizens to pursue their own versions and limiting their freedom in this way would be illiberal. *2 Individuals are not all different however. There is a shared core or common nature - all of us, say liberals, share an interest in such things as security, stability, liberty, property, minimal external constraints, and self-development. It is this shared core nature that allows Rawls to describe, consider, and defend a version of the just state arrived at by means of a social contract analysis. This sort of justification is not new to the liberal, of course. Social contract theories can be traced back through Rousseau and Locke, and even to Hobbes. *158 But the point is that such analyses presuppose some sort of shared concern or common nature, be it Hobbes' imputed universal desire to survive (which for him meant escaping the state of nature, where the life of man is solitary, poor, nasty, brutish, and short, 4 by creating an absolute sovereign) or Rawls' attribution that we are all risk-averse (and would, behind a veil of ignorance, choose a political system that did most - in absolute terms - for the least well off, lest we be they 5). *2 Liberalism's defining of society in terms of separate and autonomous individuals who nevertheless share a common nature makes it unsurprising that in the liberal state freedom and equality are most highly prized. Individuals are moral agents (orthodox version) or most happy (utilitarian version) only when they are as free as possible. And as separate, morally autonomous beings - or similar pain and pleasure experiencers - they are in essence equal and should be treated so by the state. These prescriptions, that the state should afford legal protections to each individual so he can be as free as possible, go back at least as far as J S Mill. Indeed many consider Mill's On Liberty, 6 written early in the second half of last century, to be the bible of liberalism. *3 For the purposes of this paper, however, I need only point out again that the emphasis on individual freedom and equality leads the liberal state to guarantee by law certain rights as basic. (It also, I might add, results in conflicts when these two core values clash, as happens over, say, pornography, hate speech, or religious schooling.) *3 The liberal state, as I shall repeat in a moment, is in many ways a very attractive one. But liberalism is not without its critics. To start, the stark version of liberalism sketched above leaves the very notion of the individual open to question. Thus Bikhu Parekh argues that: *3 The concept of the individual is obviously complex and presupposes a theory of individuation. By the very conditions of his or her existence, every human being is inseparably connected with other human beings and nature. To individuate a person is to decide where to draw the boundary between that person and other persons and nature [L]iberalism defines the individual in austere and minimalist terms. It abstracts the person from all his or her contingent and external relations with other people and nature, and defines the person as an essentially self-contained and solitary being encapsulated in, and unambiguously marked off from the outside world by his or her body. 7 *3 *159 Parekh's point, as I understand it, is that the more this picture - of the self-sufficient, freely choosing, moulded by no customs, mores, or persons but himself, individual - is a fiction, the more it seems to loosen the basic liberal purchase. But other, less severe liberal theorists disagree. They concede that it is mistaken to view individuals as asocial, self-contained, and solitary beings. These less stark liberals prefer to avoid defining liberalism as a theory of the self, or of human nature, or of society, 8 opting to ground liberalism instead as a single thesis about the proper scope and limits of the power of the state. 9 This allows them to defend individual rights (the hallmark of liberalism) without defending any particular justification for them. *3 Whatever the merits of such a strategy, even liberals who accept the communal nature of man place great weight and value on making sure each individual is master of himself in the political and legal realms (and hence can even choose to engage in communal commitments). Yet however stark the liberalism, this weight and emphasis would appear at least somewhat misplaced if, say, determinism 10 - the doctrine which claims free-will is a myth and we humans are like all else completely determined in our actions - were true. And without going quite that far, it might seem that

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the big doses of social conditioning all of us quite clearly experience in growing up and later undermine the pre-eminence liberals of most stripes give to political autonomy and hence freedom. *4 Other critics of liberalism dislike some of the ramifications of self-ownership; for one thing it can provide the foundations for a relatively laissez faire economy in which people are free to alienate their labour. This sort of liberal economy and alienation, say some, destroys man's true freedom and is undesirable, at least in the longer term. *4 Then there are critics who dislike orthodox liberalism's 11 forswearing of the common good. 12 For them there are goods which the state should endorse and aim towards, regardless of whether these goods impinge on the scope of action of particular individuals. Oddly, this criticism is shared by traditionalists on the right and communitarians on the left. *4 And the last criticism of liberalism, at least of orthodox liberalism, I shall mention here is the moral certainty or paternalism that surrounds its central tenets. Liberal values having to do with the sovereignty and inviolability of the *160 individual are sacrosanct. However tolerant the general liberal attitude to dissent, it brooks no opposition to the rightness' of the moral primacy of the individual. Certain individual rights simply are fundamental and untouchable and in that sense have a moral objectivist quality. Those who disagree (eg Asian values' proponents) are not to be left alone to work out their own arrangements - as one might expect - but must be made to respect individual rights. And this is true, as we shall see, even if the dissenters happen to be the majority and so liberalism comes into conflict with democracy. (One thing I want to make clear in this paper is that liberalism is distinct from democracy and that the two can and do clash.) *4 Those criticisms notwithstanding, the liberal state is still a very attractive one. Few people seem to prefer an illiberal state over a liberal one, at least not after having experienced both. Liberalism's emphasis on freedom and equality happens to trigger a receptive chord in most people. *4 At this point, though, it may be apt to observe that liberalism today overwhelmingly goes hand in hand with democracy. Perhaps it is the latter that people find attractive. Democracy *4 The essence of democracy is much simpler to describe. A democratic government refers to how a government is chosen. That method is by voting, with the majority's preference (loosely speaking) prevailing. Of course there are a multitude of voting systems in operation around the democratic world. First-past-the-post, proportional representation, and preferential voting systems all exist in diverse shapes and forms. Added to that multiplicity is a slew of other variations - parliamentary and presidential systems, republics and constitutional monarchies, bicameral and unicameral legislatures, term limits and no term limits, mandatory and optional voting. But through all the heterogeneity, democracy boils down to majority rules, to letting the numbers count. *5 Until recently, democracies were a rare species. The English-speaking world, Japan, India, and the western part of Europe were pretty much the only members of an exclusive club. Lately, South America, eastern Europe, bits of south-east Asia, and portions of Africa have also been admitted. The popularity of democracy has never been greater. *5 Moreover, democracy has an ancient, if spartan, lineage. It first appeared nearly two and a half millennia ago in the Athens of classical Greece. Liberal notions are relative newcomers in comparison to that record. Nor need democracy share liberalism's priorities and underlying individualism: *5 The Athenians were keen to deserve well of their community and to enrich it by giving their best Athenian democracy was informed by a view of *161 freedom that demanded active political participation as its necessary expression. Athenian democracy trusted the masses [whereas] the liberal is deeply suspicious of them [Athenian democracy was] defined in participatory and communal terms. 13 *5 In mentioning the democracy of classical Athens my intention is to advert to the fact that democracy and liberalism need not go together. It is quite possible to have one without the other. The classical Athenian form of democracy provides an example of elected government, but a government not committed to or fettered by liberal values or the over-arching importance of the individual. Singapore may provide another. An illiberal democracy is not just some theoretical postulate, it has existed and arguably does still. That being the case, it is useful to understand democracy in an unencumbered sense - signifying merely how government is chosen and so carrying few concomitant

implications about, say, individual rights and freedoms or the treatment of minorities. 14 *5 If democracy need not presuppose liberalism, can the obverse also be asserted? Can a state be liberal but not democratic? Here in Hong Kong such questions seem almost silly; the answers are evident. For while it was not until 1991 that there were any directly elected legislators in Hong Kong, that same British Crown colony enjoyed the benefits of a liberal system of government well before then. The press has long been free. (Indeed a broader range of opinion is represented in print in Hong Kong than just about anywhere, all American cities included.) Criminal trials have presumed the innocence of the accused. Choice and practice of religious worship have been unhindered. The judiciary has been from the outset independent and the rule of law upheld. Basically the panoply of British civil liberties and protections of the individual were long ago (more or less 15) transplanted to Hong Kong. Liberalism preceded democracy by many decades to the shores of Britain's great Asian entrept colony. *5 This arrival in Hong Kong of liberalism before democracy reflected historical developments in the mother country, of course. The First Reform Bill in *162 Britain, which took the percentage of adults eligible to vote from about 5 per cent to just over 7 per cent, was not passed until 1832. Britain had embraced liberalism well before then. (And to make the point starker, until the Fourth Reform Bill of 1918 still only 30 per cent of adults were eligible to vote.) *6 Therefore history and example show us that the liberal state can be undemocratic, just as a democracy can be illiberal. You can have one - either one - without the other. Fitting together: who's on top? *6 That point made, that there is no necessary connection - even in practice - between liberalism and democracy, it is nevertheless clear that overwhelmingly the two are found together. As a very safe rule, to find a liberal state one looks for a democracy and to spot a democratic government one watches for liberal tendencies. *6 How then do the two usually fit together? One possibility is that the two go hand-in-hand and never clash. This would be the case if the majority always preferred and voted for liberal outcomes. Then the legislature would only ever have mandates for laws that treated each member of society as an autonomous and formally equal individual. Were the liberal world-view and preferences, in other words, shared by the preponderance of citizens, in good times and in bad, then it would be safe to say that liberalism and democracy do not clash. As we all know, however, it is not safe to say that. The views of the majority sometimes can and do clash with so-called liberal values. (Merely think of popular attitudes towards homosexuality.) In fact it is usually in the context of just such a clash that reference is made to the tyranny of the majority. *6 Owing to this observable fact that clashes can and do occur, which of democracy and liberalism is the dominant partner? This is an empirical question. To answer it one looks at existing states that have both liberal and democratic features to see which aspect predominates. The acid test is this: Is the governmental structure one that can be said to leave all important decisions, even those affecting core liberal concerns and values, to the voters? Or more prosaically, does it look as though the masses are trusted? *6 It seems to me that the answer is a clear and resounding NO. When liberal values clash with the beliefs and sentiments of the majority of voters (as expressed in democratic elections and through democratically elected legislators), the cards are everywhere - in varying degrees - stacked on the side of liberalism. Let me support this assertion. *6 The most obvious way in which core liberal values are made pre-eminent is by means of a written constitution with some sort of entrenched Bill of Rights. Such instruments set out, in rather vague, amorphous, but highly emotive terms, the place of the individual in society. This place is stated in the language *163 of rights and amounts to a catalogue of prized liberal values. Given that these rights of the individual are enunciated in over-arching and entrenched constitutional documents that cannot be over-ridden by mere legislation, they are virtually insulated against removal or change by the majority. One need only consider the constitutional structure of the United States in this respect to see how dominant liberalism is over participatory democracy. (In the world's most powerful democracy legislation is regularly struck down for breaching guaranteed individual rights, or at least for breaching the judges' perceptions of what those rights require in specific circumstances. And this is in addition to extremely low voter turn-outs at elections, a distorting electoral college system for choosing a

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president which makes it possible to win a plurality of votes cast but lose an election, and a second-chamber Senate chosen not on the basis of population.) Add to that the fact that all democracies that I know of, save Australia, 16 have some sort of Bill of Rights - though of course not all of them have such vigorous, potent, and justiciable models as those of the United States or Canada - and one can see the privileged position given to liberalism in its embrace with democracy. But more on Bills of Rights in a moment. *7 A second indicium of the priority given to liberalism is the representative nature of modern democracies. I do not mean by this to make some atavistic plea for a fully participatory, Athenian-style democracy. Townhall decision-making is possible only within the small and limited confines of townhalls - not in a modern, industrial state of millions and millions of people. Still, recourse to direct means of determining citizens' views is rare. Referenda are extremely infrequently used outside of Switzerland and California, 17 and in the latter the outcomes are often over-turned by the courts anyway. 18 Politicians in other jurisdictions have been known to deride referenda as undemocratic (where a more accurate description might label them as prone to illiberal results). Then there is the filtering nature of political parties and their elite. (Consider Scandinavian countries where almost all parties favour the European Union and yet many citizens, sometimes a majority, do not.) And let us not overlook voting systems which either, like proportional representation models, unduly favour centrist parties and so reward moderate views or, like first-past-the-post models, shut out extreme viewpoints altogether. *7 *164 A final safeguard of liberal principles I shall mention is the general power of judges when interpreting legislation. Even in the absence of a bill of individuals' rights, judges have a residual law-making power when interpreting statutes. Where the words employed by the elected legislature lack a clear and obvious meaning, in the penumbra of uncertainty as it were, judges have discretion. 19 Or if, like Ronald Dworkin, one rejects the existence of strong judicial discretion, there is at least a purported obligation to find what appears to me to amount to the most liberal answer consistent with the settled law of the jurisdiction. 20 To the extent then that a highly unrepresentative body like the judiciary can be relied upon to subscribe to and favour (ie to read into legislation whenever there is indeterminacy) the basic liberal tenets, this residual judicial power to interpret statutes is yet a third main way in which liberalism has the upper hand over democracy. *7 For the remainder of this section on how democracy and liberalism can be observed to fit together I would like to look again, but more closely, at the democratic legitimacy of strong judicial review under a constitutionally entrenched and justiciable Bill of Rights. I want, that is, to consider the democratic credentials of constitutions (like those most obviously of the United States or Canada) which have such instruments. A good way to start is by turning to the Waldron-Freeman debate of a few years ago in the journal Law and Philosophy. 21 *7 The two men disagree over whether judicial review of primary legislation (on the basis of a justiciable and constitutionalised Bill of Rights which judges can invoke to strike down the legislature's statutes) is or is not undemocratic. Freeman argues that such review is not undemocratic; Waldron argues that it is. Neither, however, thinks the dispute a linguistic one. Now, of course if democracy is simply defined in procedural terms, as a matter of stipulation, then it is trivial that judicial review is undemocratic. But this is not an argument, for stipulative definitions carry no argumentative weight. 22 Like Professor Freeman, I do not think this is a matter of verbal definition. He is quite right to say that simply stipulating a definition of democracy settles nothing. 23 *8 Rather, the dispute revolves around whether democracy involves or entails certain outcomes certain right and just outcomes - or whether democracy is purely procedural - the procedure being that the views of the majority *165 prevail. Freeman contends that democracy is best understood as also protecting rights, that on some conception of its role judicial review can better implement the ideal upon which political democracy is based that it is an important democratic institution. 24 This is because majority procedures are not perfect with respect to the requirements of democratic justice . Judicial review is appropriate [when] legislative procedures are incapable of correcting themselves. 25 In other words, for Freeman there are certain basic rights that should be upheld and protected and to the extent a strong judicial power of review under a Bill of Rights does so it is desirable and, for him, democratic. He believes the sovereign people may democratically create and define, through a constitution, the nature of the limits of ordinary political authority, including those on the legislature. Judicial review, then, is simply one device that free and equal sovereign persons might agree to and impose on themselves as a constraint upon majority legislative processes. *8 Waldron rejects this argument. The thrust of Waldron's reply is that democracy should, indeed

must, be understood in procedural terms because judicial review itself cannot properly be understood save in procedural terms. *8 The practice of judicial review is defined completely by the following procedure: when a legislature and the Court disagree (including when they disagree about the powers of the Court) the Court's view prevails whether it is substantively right or not Not only is judicial review to be understood in purely procedural terms, but it is to be understood in terms of majoritarian procedure [The Supreme Court] takes all its decisions by majority voting among its members Five members in favor of some controversial view about fundamental rights are sufficient to outweigh four against. 26 *8 The decision-rule used by judges, that more votes beat fewer, is precisely the same rule used in elections and referenda. The only difference lies in the number of people affected by the issue who get to vote: just nine, as opposed to millions. 27 It is a mistake to think a Bill of Rights operates as a substantive restriction on the outcomes reached by the courts unless one also believes that there are knowable right answers when it comes to allocating and withholding the Bill's rights and additionally that judges always get those answers correct (which even Freeman does not believe). If judges sometimes get it wrong and the Bill of Rights is therefore just an instrument judges are expected to comply with - not one judges will always live up to - then the same can be said of *166 legislators. And this is true, I might add, whether one is a moral sceptic who does not believe there are right or wrong moral answers or one is a moral objectivist who believes there are, but also recognises the diversity of existing views about rightness and is humble enough not to equate all rightness with his own beliefs. 28 All the Bill of Rights does is transfer final say to a small band of unrepresentative judges; it does not guarantee a just decision. [O]ur rule is not that the right view is to prevail. Our rule is simply that the matter is to be considered and that a bare majority of five Supreme Court justices over four is to settle the issue. 29 *9 Seen in this light, in purely procedural terms, how can it be more democratic to let the votes of nine prevail over the votes of millions or of tens of millions or of hundreds of millions? Once even strong judicial review is recognised to be a procedural and majoritarian exercise, I think it is hard to deny that democracy itself, properly conceived, is purely procedural and majoritarian. *9 But many others disagree. For even if one rejects Freeman's particular argument that strong judicial review is compatible with democracy, there are other attempted reconciliations. Perhaps the best known of these is Ronald Dworkin's. In the introduction to his Freedom's Law, 30 Dworkin rejects the majoritarian or letting the numbers count conception of democracy in favour of what he calls the constitutional conception of democracy, 31 according to which democracy is identified with treat[ing] all members of the community, as individuals, with equal concern and respect . Democracy means government subject to conditions of equal status for all citizens. 32 This sort of equation of democracy with right outcomes (about equality and respect) allows Dworkin to say it is compatible with democracy to abandon majoritarian institutions when they do not respect these conditions (or, rather, to opt for procedures - like strong judicial review - that protect them better). *9 In my view this Dworkinian reconciling argument is deeply flawed, first, because it assumes there are non-subjective right outcomes and understandings of what it is to treat people with equal concern and respect, and second, because it ignores the fact that giving people a vote on fundamental matters of social policy (which is precisely what the rights in Bills of Rights are all about) seems itself to be one integral aspect of treating them with equal concern and respect. 33 Without further elaboration here, however, I simply say that if Dworkin's non-majoritarian conception of democracy strikes one as *167 unpersuasive, a sort of having your cake and eating it too exercise, then one is thrown back on a Waldronian conception under which democracy is properly conceived of in purely procedural and majoritarian terms. Democracy, then, is letting the numbers count, and so in terms of democracy it seems virtually impossible to defend the allocation of final social policy-making power to nine or seven or however many judges. What Freeman and others want to do is to read liberal outcomes into democracy. They want democracy to mean liberal democracy and expect or hope that judges will be more protective of liberal values than the population at large. *9 I return, therefore, to my earlier assertion and say again that generally today when liberalism and democracy are observed together the former is the dominant partner. One can no doubt point to exceptions here and there (eg differential treatment of people in various liberal democracies on the basis of group not individual characteristics) but these truly are exceptions. Core liberal notions about the place of the individual in society are generally well protected against the tyranny of the majority. Liberalism, democracy, and Hong Kong

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*10 Thus far I have argued that liberalism starts with a more or less atomistic view of society and seeks to build a moral and legal wall around each separate person. These walls' usually take the form of rights or entitlements. Democracy, however, is purely a procedural device for choosing and removing a government. In a democracy, the majority rules and the numbers count. In the modern world these two overwhelmingly are found together. But liberalism holds sway. We see liberal democracies around us, not democratic liberalisms. *10 Now it is time to move from the abstract to the concrete. As I noted in starting this paper, Hong Kong has a relatively long-established liberal heritage (not, of course, because of judicial review which is an extremely recent development - but rather because of the transplanted British freedoms noted above). Its experience of democracy, by contrast, is extremely recent. More recently still, Hong Kong became a part of the People's Republic of China, albeit a part with unusual latitude and privilege when it comes to its legal system, its economy, the prosperity of its inhabitants, and more. *10 China, however, has neither liberal nor democratic traditions. Indeed it seems safe to say that the present Chinese government is hostile to, and wary of the spread of, both democracy and liberal values. With the liberal support provided by the United Kingdom government taken away, no one can be sure what will happen, though we already see the rolling back 34 of democratic *168 initiatives and the attempted diminution of the Hong Kong Bill of Rights Ordinance 1991. 35 (Lest I be misunderstood, I for one certainly do not believe liberalism requires a Bill of Rights. 36 But the concern generated by any such diminution is likely to be more than is strictly warranted, and so worrying for that reason itself.) *10 A Hong Kong that is not a fully-fledged liberal democracy need not be some oligarchical or illiberal regime. There is much grey between the white and the black. But it would be wise for all those concerned to be clear about what precisely each finds valuable in the liberalism and democracy that Hong Kong currently enjoys.

1.

. Bikhu Parekh, The Cultural Particularity of Liberal Democracyin David Held (ed), Prospects for Democracy: North, South, East, West (Cambridge: Polity Press, 1993), pp 156-75. For a fuller exploration of liberal democracy see C B Macpherson, The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977). . One heterodox version of liberalism would be Benthamite utilitarianism. Jeremy Bentham saw individuals as subject to iron laws of psychology under which each attempted to maximise his own happiness (albeit frequently unsuccessfully). For Bentham then, autonomy is really beside the point, although individuals' pleasures and pains still remain at the centre of his political thinking and concern. See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (J H Burns and H L A Hart (eds)) (London: Athlone Press, 1970), especially ch 1-10. . John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972). . Thomas Hobbes, Leviathan (1651), ch 13 (at p 100in the edition edited by Michael Oakeshott) (London: Macmillan Publishing, 1962). . See Rawls (note 3 above). . John Stuart Mill, On Liberty (London: Penguin, 1974; first published in 1859). . See Parekh (note 1 above), pp 157-8 (footnote in text omitted). . Allen Buchanan, Assessing the Communitarian Critique of Liberalism(1989) 99 Ethics 853. This article gives an excellent defence of liberalism against communitarian critics. . Ibid. . For a powerful argument that determinism is true see Ted Honderich, A Theory of Determinism, The Mind, Neuroscience and Life Hopes (Oxford: Clarendon Press, 1988). . If the main branch or orthodox version of liberalism today can be understood as a sort of Kantian liberalism, there is still an influential branch of utilitarian liberalism. While the Kantian or Rawlsian liberals reject the idea that the state should aim for the common good, utilitarians obviously do not. They say the state should aim for the greatest happiness.

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. See eg John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980). . Parekh (note 1 above), pp 162-3. . Democracy understood as letting the numbers count and as majority rules, as stipulated above, presupposes the ability of citizens to take part in the decision-making process. Hence, the ability and freedom to form political parties and to associate with others and to speak freely about public affairs is presupposed in a democracy. . One might reply that the liberalism that existed in colonial Hong Kong was somewhat enervated. For instance, prior to the signing of the Joint Declaration, trials were conducted and legislation was available only in the English language (though defendants were given interpreters). Similarly, the presumption of innocence was reversed for certain criminal offences and some topics were kept off the school curricula. This is all true (though I doubt any country in the world has been or is free from all illiberal practices). But then reverse onus provisions also existed in the criminal law of Canada, Britain, New Zealand, and many other liberal countries. Clearly the notion of liberalism is a relative one and the extent to which it can aptly be used to describe any particular state is debatable. That said, relative to many, many other countries, including democracies, Hong Kong in my opinion had a liberal system of government (ie the liberal tendencies clearly outweighed the illiberal). . Arguably the United Kingdom and Israel could also be described as lacking Bills of Rights. However, while the UK (at least for the moment) does not have a domestic Bill of Rights it is a party to the European Convention on Human Rights, violations of which can, with persistence, eventually be brought before the European Court of Human Rights whose decisions, though not coercively enforceable, are generally complied with by the UK government. And Israel's Knesset has recently passed two new Basic Laws on Freedom of Occupation and Human Dignity and Freedom which allow courts some scope to review primary legislation. See Meir Shamgar, Judicial Review of Knesset Decisions by the High Court of Justice(1994) 28 Israel Law Review 43, 54-6. . For an interesting discussion of the place and role of referenda in modern democracies see the survey article Full Democracy in The Economist, 21 December 1996, after p 76 (Asian ed). . Ibid. . See H L A Hart, The Concept of Law (London: Clarendon Press, 2nd ed 1994), ch VII. Earlier, at p 134,Hart talks of the penumbra of uncertainty while at p 123he uses the penumbra of doubt. . See Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 2nd impression with a new appendix, 1978). . What I have called the Waldron-Freeman debate is a shorthand for the exchange of views in Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review(1990) 9 Law and Philosophy 327-70and Jeremy Waldron, Freeman's Defense of Judicial Review (1994) 13 Law and Philosophy 27-41.For the remainder of my paper I shall simply refer to these articles as Freeman and Waldron respectively. . Freeman (note 21 above), p 336. . Waldron (note 21 above), p 28. . Freeman (note 21 above), p 340. . Ibid, p 361. . Waldron (note 21 above), p 31. . Ibid, p 32. . See Jeremy Waldron, The Irrelevance of Moral Objectivism in Robert George (ed), Natural Law Theory (Oxford: Clarendon Press, 1992). . Waldron (note 21 above), p 36. . See Ronald Dworkin, Freedom's Law (Cambridge, Mass: Harvard University Press, 1996), pp 1-38. . Ibid, p 17.

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29. 30. 31. 32.

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. Ibid. 33. . For a full attack on Dworkin's theories see James Allan, Legal Interpretation and the Separation of Law and Morality: A Moral Sceptic's Attack on Dworkin(1997) 26 Anglo-American Law Review 405-30.See also note 36 below. . For instance, the Provisional Legislative Council was a much less representative body than the Legislative Council which it replaced. Similarly, the size of the electorate for the functional constituencies in the first elected Legislative Council (elected in May 1998) was significantly smaller than in the 1995 elections. . On 23 February 1997 the Standing Committee of the Eighth National People's Congress decided to remove three sections of the Bill of Rights Ordinance under Art 160 of the Basic Law. For an English translation of that decision see Yash Ghai, Hong Kong's New Constitutional Order (Hong Kong: Hong Kong University Press, 1997), from p 499, and (1997) 27 HKLJ 419.For a discussion of that decision, and debate over whether such deletions really matter, see Appendix One to Ghai's book, from p 491, and Peter Wesley-Smith, Maintenance of the Bill of Rights' (1997) 27 HKLJ 15.See also pp 152-5 above. . I argue as much in Bills of Rights and Judicial Power: A Liberal's Quandary(1996) 16 Oxford Journal of Legal Studies 337and A Bill of Rights Odyssey for Australia: The Sirens are Calling(1997) 19 University of Queensland Law Journal 171-93,co-authored with Richard Cullen.

34.

35.

36.