by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Michael Brendan Dougherty of National Review Online explores Hong Kong’s experience with the common law.
When conservatives in England and America talk about their civilization as an inheritance, they often talk about the genius of the common-law tradition. By that they mean the body of legal thought and practice that grows from the bottom up. Our expectations about due process, evidence, and presumed innocence grow from this tradition. We usually contrast this with the law tradition on Continental Europe that has roots in the top-down approach of the Roman Empire. Thomas Jefferson talked about the American form of liberty as the sum of this common-law tradition of freedom, one that stretched back into the Middle Ages.
I’m sure that even for many of the conservatives audiences that endure these talks by pundits, academics, and philosophers, this topic can seem boring, abstract, and gaseous. It seems that way because we take it too much for granted. Most people in America probably never hear about the common law apart from the phrase “common-law marriage.”
In Hong Kong people are not lucky enough to be forgetful. Hong Kong is not in a neighborhood that lets its people forget. Most media stories note that the incredibly large protests that have rocked Hong Kong recently are against an extradition law that has been proposed by the government. It’s called the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Bill. It would allow the authorities in Hong Kong to extradite criminal offenders to China. In other words, it would facilitate the authorities’ ferrying people away from the common-law courts and jurisprudence of Hong Kong, a holdover from its days under British colonial government, to the politically controlled courts of China.