Band 19, Heft 1

The rule of law is often cast as the primary governance ideology of Hong Kong. Hong Kong is a capitalist, common law legal jurisdiction that had, at least until a recent political crackdown, strained to differentiate itself from authoritarian, socialist, mainland China over its northern border. This article explores government conceptions of the rule of law in Hong Kong, benchmarked against rule of law standards adopted by member states at the United Nations (UN). We argue that Hong Kong’s ‘official’ rule of law definition is at odds with an evolving international consensus on the rule of law within domestic legal and political systems. This has especially been the case after 2005, with the strengthening of rule of law discourse at the UN General Assembly and the rule of law’s increasing political contestation and weaponisation in Hong Kong. Compared with the contemporary consensus expressed at the UN, Hong Kong’s rule of law definition, as favoured by the territory’s executive, legislative and judicial branches, possesses a narrower ambit, but is also more finely articulated.

The constitution holds unparalleled importance in a well-established democracy, serving as the foremost legal, political, and social document that molds the life of the entire national community. Beyond structuring the fundamental components of a state, constitutions also articulate the core values guiding both public and private actors. However, upon closer examination of realities, the idealized concept of constitutions reveals a divergence in many contemporary democracies, including Sweden. Despite aspiring to the ideal-typical model, Sweden showcases a divergence in its constitutional landscape. Certain constitutional documents in the Scandinavian country are deemed ‘fully constitutional’, providing a solid and stable legal foundation acknowledged by both legal and political actors to shape and limit their work. On the contrary, substantial portions of Sweden’s constitutional charters appear less stable, lacking essential support within the legal discourse of the nation. This work aims to present the varying perception and utilization of constitutional charters in Sweden, exploring the factors contributing to their ‘political’ role rather than a purely legal one in the national discourse. Additionally, it highlights recent shifts in these factors, suggesting emerging tendencies that may guide major legal actors in Sweden toward a more inherently ‘legal’ vision of the constitution as a fundamental framework for all legal and political discourse.

In this article, I explore the cross-jurisdictional development of constitutionally conforming interpretation in the United States and Europe and trace the historical and sociological reasons for its emergence. In most legal systems, this tenet of interpretation has a uniform starting point, which lies in the aim of constitutional courts to exercise restraint when reviewing statutes. The political necessity for pioneering constitutional courts to lessen opportunities for attack from other branches of government has spurred their inclination to secure desired results through constitutionally conforming interpretation rather than facing the risks associated with declaring a statute unconstitutional. After the emergence of judicial review competencies, constitutionally conforming interpretation was adopted quickly and seemingly naturally, and its further development correlates with the further development of the constitutional court system in the respective jurisdiction. Contrary to what one might assume given the remarkably analogous but chronologically offset evolutions of constitutionally conforming interpretation in the United States and Europe, it has never been a product of legal reception. Instead, the concept materialized independently within European jurisdictions approximately one century after its initial emergence in the United States, evolving within the distinct context of European constitutional review mechanisms and the civil law tradition. Consequently, there are divergences in the approach to constitutionally conforming interpretation between the jurisdictions of the Old and the New World, allowing for a distinction to be made between a two-layered American and a single-layered European model of constitutionally conforming interpretation.

The question this paper seeks to answer is: can the refusal of parents to pay taxes be the basis for the State to deny their child’s right to education? In ISH-16 , the High Court of Lagos State, Nigeria, answered the question in the affirmative. This paper seeks to answer otherwise. It argues that human rights theory cannot support the Court’s reasoning. However, because the paper is more legal than philosophical, it neither attempts to give a ‘full’ philosophical account of human rights nor discusses the ‘best’ theory that can support its thesis. Instead, the paper adopts Williams’ Phenomenological Conclusions on human rights and the Kin Punishment Theory to assert its claim. First, the paper argues that from Williams’ Phenomenological Conclusions that P (a State) which owes Y (the child) X (the right to education) and must procure X for Y, the parents’ duty to pay taxes to the State finds no place in those conclusions. Second, the paper posits that the Kin Punishment Theory, a rule of customary international law, prohibits the kin – no matter how close or grave the crime is – from being punished for the sin of a close relative. Human rights theory considers the desert basis for punishing the kin of the offender to be ‘zero.’ The paper lays three premises: ( 1 ) that human rights attach to personhood ; ( 2 ) that a child is a separate person who has a legal personality since human rights law has detached the child from patria potestas ; and ( 3 ) that requiring a condition (tax payment) from the parents before their child can enjoy the right to education is a punishment . From these premises, the paper concludes that punishing the child (by denying them their right to education) because their parents (other persons) refuse to pay tax violates the Kin Punishment Theory.