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 THE BASIC NORM AND THE BASIC LAW
E
J W Harris*

From 1 July 1997 the fundamental constitutional document which will, as a

matter of form, govern legal practice in the Hong Kong Special Administrative
Region of the People's Republic of China is the Basic Law.' The most
internationally famous legal philosopher of the 20th century is the late Hans
Kelsen, one of whose celebrated theoretical constructs was the 'basic norm.'
There is no reason to suppose that the former constitutional document and the
latter theoretical construct have anything in common, or that any light is to be
shed on the one by virtue of the other, merely because of the common adjective
'basic.' It is extraordinarily unlikely that those who drafted the Basic Law had
any interest in, or any familiarity with, Kelsen's theory.
On the other hand, all legal theories advance contentions, of one kind or
another, about legal goings-on. If they purport to be general theories about law,
they make supposedly universal claims - usually at a very abstract level -
about legal practices. If 'foundationalism,' in some sense, is claimed to be a
universal feature of law-talk and legal administration, should we not expect to
find - if the theoretical claim is sound - that a particular instance of
constitutional foundationalism exemplifies the universal? If it does not, the
theoretical claim needs revising or is simply false. If it does exemplify the
universal, then the theory itself may throw light on what the aspiration to
formal constitutional foundation amounts to. It will be my contention that
Kelsen's theory does throw such light on the Basic Law, more especially in
relation to Kelsen's seemingly provocative claims about 'legally irrelevant
materials.'

Kelsen's theory summarised2

When that social institution called 'law' is present in a territory, what do we

find? We find individuals or groups purporting to issue prescriptions as to how
Fellow of Keble College, Oxford.
An earlier version of this paper was first delivered at the University of Hong Kong in March 1994,
when I was invited to the university as part of its distinguished visitors programme. I wish to record
my gratitude for the invitation and for the hospitality I received. Other versions of the paper were
presented at the City Polytechnic of Hong Kong and to the Hong Kong Bar Association. I have
benefited greatly from comments made during discussions on these occasions.
2The following abbreviations will be used to refer to translations of Kelsen's major works: EL = Essays
inLegalandMoral Philosophy (selected by Ota Weinberget), trans P Head (Dordrecht: Reidel, 1973).
GTLS = General Theory of Law and State, trans A Wedberg (Cambridge: Harvard University Press,
1945). GTN = Genera!Theoryof Norms (published posthumously), trans MHartmey (Oxford: Oxford
University Press, 1991). PTL = PureTheory of Law (translation of Reine Rechtslehre 2nd ed), trans M
Knight (Berkeley and Los Angeles: University of California Press, 1967). WJ =What isJustice?Justice.
Law and Politics in the Mirror of Science: Collected Essays (Berkeley and Los Angeles: University of
California Press, 1957). The summary offered here takes no account of two notorious changes which
Kelsen made in his theory towards the end of his life, since neither has any direct bearing on the issues
discussed in this article. The first concerns Kelsen's claim, advanced in the second edition of Reine
208 J W Harris (1994) HKLJ

other people ought to decree measures of coercion - the forcible deprivation

of life, liberty, health, or economic values.3 We find other people decreeing
such measures, giving as reasons in support of what they do the prescriptions
issued by the first lot of people. 4 We find that, generally speaking, when
individuals disobey the prescriptions (that is,fulfil the conditions stipulated as
sufficient by those prescriptions for the application of coercion), coercive
measures are indeed decreed against them and these measures are imple-
mented.5
All this could be portrayed as a complex series of events: the issuing of more
or less general, or more or less concrete, prescriptions about coercion, the
occurrence of conditioning behaviour, and the direct application of coercive
measures. The social scientist who is interested only in recording events could
leave it at that, offering such causal generalisations as seemed to him to fit the
facts. '[TIhe relevant interhuman relationships ... can be interpreted ... as
power relations (ie, relations between commanding and obeying or disobeying
human beings) - in other words, they can be interpreted sociologically, not
6
juristically.'
However, such an analysis of a community where there is law would leave
out of account a universal feature without which the social scientist could
hardly be said to have explained what was going on. That is the phenomenon
of descriptive law-talk. Everywhere where there is law there are people who, on
a daily basis, purport to give information about the currently valid law. On
innumerable occasions they make statements of the form: such and such is
illegal; persons in circumstances X have a legal duty to do Y,or a legal right to
claim Z; conduct of a certain kind constitutes a criminal offence, or a civil
wrong. Kelsen, from first to last throughout his writings, maintains that his
theory makes explicit what is implied by such statements. His pure theory of law
is a theory about juristic thinking, about an activity (a normative 'science of

Rechtslehre, that every positive norm iscreated by a real act of will - a view at odds with his position
in earlier works, including the first edition of Reine Rechtslehre (translated by B and S Paulson as
Introduction to the Problems of Legal Theory (Oxford: Clarendon Press, 1992). I have discussed this
matter in Law and Legal Science: An Enquiry into the Concepts Legal Rule and Legal System (Oxford:
Clarendon Press, 1979), pp 36-9. The second change concerns radical revisions in Kelsen's views
about the logic of norms, in particular his contention that contradictory norms may be simultaneously
valid. This change appears inworks published subsequently to the second edition of Reine Rechslehre.
Ihave discussed this development in'Kelsen and Normative Consistency' inR Tur and W Twining
(eds), Essays on Kelsen (Oxford: Clarendon Press, 1986).
3 GTLSpp 20-22,45,61,124-62.WJ pp 274-5. PTLpp 31-6,41,62,119,145-50, 221-78. ELpp 244-
5. GTN pp 22-3, 52-5, 133-5.
4 'A positive legal order commands its law-applying organs- judges in particular- to apply only the
norms of this legal order, and to apply moral norms only when they are the object of delegation by
this legal order' (GTN p 216). '[l]n the relationship between a general norm and the corresponding
individual norm posited by the law-applying organ, a logical relation exists insofar as the state-of-
affairs established in concreto by the court can be subsumed under the state-of-affairs defined in
abstracto inthe general norm' (EL p 246).
The effectiveness of a norm 'consists inthe fact that it isactually observed, and when not observed,
then applied' (GTN p 44).
6 PTLpp217-18.
Vol124 Part 2 The basic norm and the Basic Law 209
Vol 24 Part 2 The basic norm and the Basic Law 209
law') which has been in existence 'for millennia' and which 'serves the
intellectual needs of those who deal with the law.' 'To replace this science by
legal sociology is impossible, because the latter is concerned with an entirely
8
different problem.'
All theorising about law constitutes an abstract distillation of one or more
aspects of legal practice. In contemporary Anglo-American theory, adjudica-
tion is usually centre-stage. For Kelsen, pride of place is accorded to legal-
information-giving: 'how ... are all these juristic statements concerning legal
norms, legal duties, legal rights, and so on, possible? All his theoretical claims
are hostage to how we should understand the practice of giving information
about the law. Kelsen calls this practice, variously, 'juristic thinking,' 'juristic
interpretation,' 'legal cognition,' 'normative jurisprudence,' and 'the science of
law.' It should be borne in mind, however, that he also uses the expression
'science of law' to stand for the theoretical enterprise of working out the
implications of juristic statements. It is'legal science' of the latterkind in which
he himself isengaged. 'Legal science' as theory has 'legal science' as practice for
its subject of inquiry.'"

The basic norm and the historically first constitution

There are three peculiarities (as Kelsen sees it) about statements which convey
information about the valid law. First, they are normative. They are not
translatable, without change of meaning, into statements of fact. They assert
what ought to be done. '[f all meaning is denied to the "ought" ... [tjhe
thousands of statements in which the law is expressed daily would be sense-
less.'ll
Second, they are not assertions of objective critical morality. Just as well
because, in Kelsen's view, there are no such things as objective moral values.
'I do not know and cannot say what justice is, justice in the absolute, that
beautiful dream of mankind. I must be content with a relative justice and can
only say what justice is for me.'12
However, third, such statements can be shown to be true or false relative to
something else.13 If it is said that the bailiff ought according to law to seize
Smith's goods, that can be shown to be true relative to the order of a judge. That
the judge's order ought to be carried out can be shown to be true relative to some
statute. And so on.

7 PTLp 105.
8 Ibid.
9 GTLSp117.
10 1 have discussed these varying senses of'legal science' in 'Kelsen and Normative Consistency' (note
2 above).
11 PTL p 104.
12 EL p 24.
13 GTLS pp 47-9. WJ pp 209-30. PTL pp 30,198-201,234-6. GTN pp 180-1, 152-65.
210 J W Harris (1994) HKLJ

Thus juristic statements always invoke a hierarchy of normative justifica-

tion. Since they do that, they must necessarily presuppose a foundational
authorisation. That foundation is what is meant by a 'constitution.' In any
society in which juristic statements purport to convey information, there will
be actual invocations of a constitution which confers limited or unlimited
authority on one or more bodies which issue general norms relating to the
application of coercive measures, and the validity of more concrete norms will
be founded on such general norms. We arrive at this conclusion inductively
14
from the universal practice of legal information-giving.
Every statement describing the content of positive law makes a normative
claim which isrelative to a historical act of constitution-creation. It may be
that what is called 'the constitution' in the day-to-day operations of legal
practice was itself promulgated in accordance with some earlier constitution.
Should that be the case the truth of juristic statements can be seen as being
relative to an earlier act of constitution-promulgation. The theory of the basic
norm asserts, as a universal truth about legal-information-giving, that there
must be at some point in the past a constitution-promulgating act which isnot
authorised by any positive enactment. There must always be a 'historically first
15
constitution.'
If the historically first constitution isa written document, every lawyer who
tells a client what his legal duties are is taking it as axiomatic that those who
enacted the document were empowered to specify legislative procedures
through which coercion in the territory was to be organised. If the historically
first constitution iscustomary, every such lawyer istaking it as axiomatic that
those whose behaviour created this custom were similarly empowered. Since
that isthe case, juristic information isconveyed by reference to an assumption
which would be sound if it had been true that some norm empowered the
creators of the historically first constitution to make such dispositions as to the
locus and extent of legislative power as they chose. No such norm was ever
enacted since, by assumption, it would be one which confers normative power
on the first act of norm-creation of which notice is taken. Yet the normative
claims contained in legal information-giving logically entail that non-posited
starting-point. The non-posited starting-point isbrought to light by theory. It
could do with a name. For want of any better label, Kelsen calls it 'the basic
norm.'
The basic norm is,Kelsen tells us, a'fiction' in the terminology ofVaihinger's
Philosophiededes als-ob:16

14 H Kelsen,367
'The Function of a Constitution' (trans I Stewart) in Tur and Twining (note 2 above).
15 GTLS p . PTL p 50 . GTN p 255 .
16 H Kelsen, 'On the Pure Theory of Law' (1966) 1 Israel LR1, 6. CfH Vaihinger, The Philosophy of 'As
If (London: Kegan Paul,1 92 4), pp 85-90.
Vol124 Part 2 The baskc norm and the Basic Law 211

According to Vaihinger, a fiction is a cognitive device used when one is

unable to attain one's cognitive goal with the material at hand. The
cognitive goal of the basic norm is to ground the validity of the norms
forming a positive moral or legal order ... This goal can be attained only by
means of a fiction.17

Every American lawyer giving advice to a client takes it as an indisputable

starting-point that the various assemblies who approved the United States
constitution in 1789-91 were empowered to do what they did. Every British
lawyer similarly assumes that the influential clique who succeeded in establish-
ing the United Kingdom constitution were empowered to do what they did. In
that sense, they all presuppose a basic norm. The point of the theory of the basic
norm is to root lawyers' amoral normative assertions in history rather than in
justice:

If the historically first constitution was posited by the resolution of an

assembly, then it is the individuals forming this assembly who are empow-
ered by the basic norm; if the historically first constitution arose by way of
custom, then it isthis custom, or to be more exact, it isthe individuals whose
behaviour forms the custom creating the historically first constitution, who
were empowered by the basic norm. 8

Alternative starting points

On the face of it, then, the concept of the basic norm can have nothing in
common with the Basic Law. The Basic Law isa real document which has been
promulgated. The Basic Law could be implemented, or it could be disregarded
by some future government exercising effective power over Hong Kong. A basic
norm can never be obeyed or disobeyed. It can never be effective or ineffective.
It can only be presupposed.
However, after 1997, it may turn out that juristic statements about the law
in force in Hong Kong are related in such a way to provisions of the Basic Law
that they presuppose a basic norm referring to actions connected with the
promulgation of the Basic Law. That would be so if all the reasons for validity
of every law assume provisions of the Basic Law as their taken-for-granted
starting-point.
Here we run into one of the puzzles provoked by Kelsen's bland references
to the 'historically first constitution.' Critics of his theory have pointed out that
it does not explain how a legal system can be regarded as distinct if the
constitution was duly enacted by some erstwhile imperial authority - as in the
17 GTN p 256.
18 GTN p 255.
212 J WHarris (1994) HKLJ

case of dominions granted independence by the British imperial parliament.

Surely then, it is argued, the historically first constitution would be that of the
United Kingdom, for the validity of the dominion constitution can be related
19
back to a statute of the Queen-in-Paarliament.
But this is to misrepresent the significance of the theory of the basic norm.
The theory insists that there must be a presupposed origin of normative
empowerment rooted in history. It does not demand that you must always trace
back through any series of laws with validating purport. If a private citizen were,
for some quirky reason, to direct all residents of Hong Kong to comply with the
provisions of the Basic Law, it would not follow that the validity of laws made
under the Basic Law must be traced back up a validity chain which terminates
with the quirky one's enactment. The claim that validation must stop some-
where does not entail that you must press back as far as you logically can.
The theory of the basic norm insists only that some historical foundation of
normative empowerment must be presupposed. If it makes no difference as to
the content of the laws described, more than one starting-point may be made
the basis of a theoretical reconstruction of actual juristic statements. So much
appears from Kelsen's discussion of the relationship between national and
international law. The jurist may interpret a national legal order as a unity and
ignore international law altogether, in which case she presupposes a basic norm
empowering those who created the historically first national constitution. Or
she may take into account the norms of international law applicable within the
relevant territory. In that case, there are two possibilities. She may interpret the
historically first national constitution as itself authorised by a norm of custom-
ary international law, a norm which decrees that the order of norms which is
by and large effective within a territory is a national legal system. If so, she
presupposes only a basic norm which empowers the customary norm-creating
practices of the international community. Alternatively, she may presuppose
only a basic norm authorising the national historically first constitution, and
subsume the relevant norms of international law under that constitution -
they will be valid only for the reason that norms of national law decree that they
shall be applied.2" As Kelsen stresses in his essay on 'Sovereignty and Interna-
tional Law,' 2' it makes no difference whatever to the content of the general
norms asserted to be valid which foundational stance is adopted.
It follows directly from what Kelsen says about the relationship between
national and international law that at least one choice of basic norms is open
in a theoretical reconstruction of Hong Kong law after1997. One could either
regard Hong Kong law as a distinct system deriving from the Basic Law, or one

19 J M Finnis, 'Revolutions and Continuity of Law'in A W B Simpson (ed), Oxford Essays in

Jurisprudence, 2nd Series (Oxford: Clarendon Press, 1973), pp 50-61; J Raz, The Concept of a Legal
System (Oxford: Clarendon Press, 2nd ed 1980), pp 105-9.
20 GTLS pp 121, 219, 366-70, 373, 382-3. PTL pp 214-17,328-42.
21 H Kelsen, 'Sovereignty and International Law' (1960) 48 Georgetown Q 627.
Vol124 Part 2 The basic norm and the Basic Law 213

could subsume it under international law via the treaty-making power which
that law confers on states' governments and the Joint Declaration of 1984 made
by the governments of the United Kingdom and the People's Republic of China
- always bearing in mind that the choice exists only if the content of the law
in force in the territory would be the same either way. It follows also that further
choices as to normative foundation are available which are glossed over by
Kelsen's simplistic references to the 'historically first constitution.'
Leaving to one side the international dimension, three foundational as-
sumptions (presupposed basic norms) are imaginable so far as the position in
Hong Kong after 1July 1997 isconcerned. We could attribute to those giving
legal information alternatively:
(1) At the root of our system of validation is the historical fact of the
promulgation of the Basic Law. There isno law above or beyond the Basic Law.
(2) The Basic Law is valid for the reason that it was promulgated by the
National People's Congress in accordance with Article 31 of the 1982 consti-
tution of the People's Republic of China. The constitution of the Republic is
our foundational starting-point. Beyond that constitution we cannot go - in
Kelsenian terms, we presuppose that whoever promulgated the constitution of
the Republic were empowered to enact a constitution for the entire territory of
China (including the Special Administrative Region of Hong Kong).
(3) The reason why the Basic Law is valid is that it was authorised,
ultimately, by legislation of the United Kingdom parliament. Immediately
prior to the enactment of the Hong Kong Act 1985, that parliament derived
ultimate legislative power over the territory of Hong Kong from a norm of the
customary United Kingdom constitution regarding competence to legislate for
British colonies. The validity of our laws may thus be traced back to that
customary constitution, beyond which we cannot go.22

An interview with Kelsen Chang

If it would make no difference at all to the accuracy of any information given

about the law in force in Hong Kong, any one of the three foregoing foundations
may be said to be presupposed.
Imagine we are now in the year of grace 2007. A businessman, Mr Ho, is
consulting his lawyer, Mr Cheng. Owing to the eccentricity of their parents,
these permanent residents of Hong Kong have curious fore-names. Mr Ho's first
name isEconomicus, and Mr Cheng's isKelsen.

22 These three alternatives are canvassed, in rather different terms, by Raymond Wacks in 'One
Country, Two Grundnormen?The Basic Law and the Basic Norm'in RWacks (ed), HongKong, China
and 1997: Essays inLegal Theory (Hong Kong: Hong Kong University Press, 1993), pp 151-83.
214 J WHarris (1994) HKLJ

Economicus Ho: So you see, I want to change my line of business

altogether. Instead of using my factory to produce decorative underwear as
it now does, I want to produce canned octopus for export. Advise me about
the relevant law.
Kelsen Cheng: I have checked that your lease is validly made in accord-
ance with chapter 5 part 2 of the Basic Law and nothing in what you propose
contravenes any term of the lease. There are, however, certain things you
must not do. You have certain duties by virtue of legislation enacted by the
legislature of the Hong Kong Special Administrative Region and as well
duties imposed by the common law of nuisance. I have checked all the
relevant ordinances and subordinate legislation in force in 1997, as modi-
fied by the Hong Kong legislature. I have also made sure that there is no
relevant customary law covering your case, nor any provisions of Chinese
national law as listed in the third annex to the Basic Law (bearing in mind
the additions to that annex made by the Standing Committee of the
National People's Congress during the past ten years). Those then are the
relevant legal duties bearing on your business plans.
Economicus Ho: Go on!
Kelsen Cheng: Sorry! I think that's all.
Economicus Ho: But you have not provided me with a statistical predic-
tion of the likelihood of sanctions being applied to me should I not observe
any of these duties. I have a calculator here. I know the marginal cost of
operations which respect rather than violate these requirements. If you will
just fill in the predictive information I need, I can plan my affairs with
complete economic rationality. One hears that violations of law are not
always detected, that some officials turn a blind eye, that there isprosecutorial
discretion, limited prosecutorial resources, and so forth. Just give me the
facts.
Kelsen Cheng: Mr Ho, you have come to the wrong office. There is my
friend, Sociologicus Liu, just across the road who might be able to help you,
though I think his information would not be quite as precise as that which
you seek. My job is simply to tell you what, according to law, you ought to
do.
Economicus Ho: You say these are things I ought to do. Does that mean
that, in your opinion, these restraints on my activities are just?
KelsenCheng: Not at all. Justice is a subjective matter. Whatever views
about justice I or you or anyone else may have, the duties I have enumerated
are laid down by the laws of Hong Kong. Those laws, and the power to create
new laws from time to time, are set out in the Basic Law - especially articles
8 and 18.
Economicus Ho: You keep talking about this Basic Law. Do you treat its
provisions as unchallengeable gospel?
Vol 24 Part 2 The basic norm and the Basic Law 215
vol 24 Part 2 The basic norm and the Basic Law 215
Kelsen Cheng: When I am giving legal advice, yes I do.
Economicus Ho: Why?
Kelsen Cheng: Because the laws actually applied and enforced in this
territory, all of them, derive their validity from the Basic Law.
Economicus Ho: I see that, and I have noticed that other legal advisers
talk as you do. But tell me something that puzzles me. Do you lawyers make
the Basic Law your starting-point just because it is the Basic Law, or because
the Beijing authorities who now have sovereignty over Hong Kong invoked
the Chinese constitution when they promulgated the Basic Law, or because
the British parliament which once exercised sovereignty passed legislation
indirectly authorising the Basic Law?
Kelsen Cheng: Look, Mr Ho, I am a very busy man. Take your pick
between those three possibilities. Whatever the answer to your last ques-
tion, the law presently in force is as I have described it to you.

The common law

We might perhaps wish to intervene at this point and force out of Cheng an
answer to Ho's last question. Before considering how that might be done, I
would like to digress a little to raise a question about the common law, applying
for the moment to that concept still the straitjacket of a Kelsenian analysis. The
interview continues as follows:

Economicus Ho: Leave that question, then. There are two specific
matters, strictly of law, on which I require your advice. Supposing, despite
all my precautions, noxious chemicals were to escape from my factory and
were eventually to cause damage to my neighbours which I could not
reasonably have foreseen. Would I be liable to pay for the cost of the
damage? Secondly, supposing (Heaven forbid) that one of my employees
took a bribe from a supplier, suppose I can't prove that it damaged me in any
way, suppose that the rogue invests the bribe on the stock exchange and
makes a killing, and then suppose that he goes bankrupt owing taxes to the
government and debts to other creditors and owning nothing except the
fortune he has made from investing the bribe. Can I scoop all his resources
and tell the revenue and his other creditors to go whistle for their money?
Kelsen Cheng: Now as it happens, Mr Ho, three years before the Basic
Law came into force, the House of Lords and the Privy Council, respectively,
answered both those questions in ways you will like. The House of Lords laid
down that the rule of common law, known as the rule in Rylands v Fletcher,
does not impose liability for unforeseeable damage when noxious substances
escape. 3 The Privy Council laid down that there is a rule of equity according
23 Cambridge Water Co Ltd v Eastern Counties Leather PLC [1994] 1 All ER 53.
216 JWHarris (1994) HKLJ

to which, where an employee takes a bribe, the bribe itself and any increase
in value resulting from its investment isthe property of the employer.24 Now
the Privy Council decision was given on an appeal from New Zealand, but
the constitutional position of Hong Kong courts, before 1997, was that they
were bound by all Privy Council rulings on matters of common law or equity.
House of Lords decisions were not technically binding in the same way, but
the prevailing practice was to follow them unless there was some differen-
25
tiating circumstance peculiar to Hong Kong.
Economicus Ho: What does the Basic Law say about it?
Kelsen Cheng: It says, in Article 8, that the laws previously in force in
Hong Kong, including the common law and rules of equity, 'shall be
maintained.'
Economics Ho: Great!
KelsenCheng: Ah, wait a minute! Both the decisions to which Ihave just
referred departed from widely held views as to what the position was at
common law or in equity within the Commonwealth, and they are both
controversial. It ispossible that our Court of Final Appeal, in which power
of final adjudication is vested by Article 82 of the Basic Law, might take a
different view. Even if they were mistaken in doing so, their ruling would be
binding on any litigants in accordance with the doctrine of res judicata. Let
me explain. Courts offinal appeal, like any other courts, may be directed to
apply or not to apply coercive measures by valid general norms. However,
if a legal system provides no further appeal and the principle of res judicata
isaccepted within it, you have to understand the law as directing the court
either to decide in accordance with the general norm or else to decide as it
thinks best.26 However, 'if there are valid general legal norms whose
meaning isthat they are to be applied by the courts, then as a rule the courts
do apply them, and it isonly exceptionally that judicial decisions which do
not correspond to the general norm become valid. The principle of res
judicata ... is not in fact an abgrogation but only a qualification of the
21 7
principle of material legality of judicial decisions.'
EconomicusHo: All right, Iaccept that ifour Court of Final Appeal were
to go haywire there would be nothing to be done. But surely, our top judges
respect the Basic Law at least as much as you do, and if Article 8 says that
rules of common law and equity in force in 1997 'shall be maintained,' they
will know where their duty lies and they will maintain these delightful
rulings of the House of Lords and the Privy Council.
24 A-G for Hong Kong v Reid [1994] 1All ER 1.
25 Cf Peter Wesley-Smith, 'The Common Law of England inthe Special Administrative Region' in
Wacks (ed), Hong Kong, China and 1997 (note 22 above).
26 GTLS pp 153-5. PTL pp 267-7 1.GTN pp 53-4, 248-9.
27 GTN p 249. 'As long as the legal order ison the whole efficacious, there isthe greatest probability
that the courts will actually decide as in the view of normative jurisprudence they should decide': WJ
p 270.
Vol124 Part 2 The basic norm and the Basic Law 217

KelsenCheng: Actually, it does not say'rules of common law and equity.'

It says 'the common law and rules of equity.' But whatever terminology it
had used, we have to take on board what is implicit in the general notion of
'the common law.' You see, quite apart from res judicata, the concept of the
'common law' itself entails an authorisation in the highest court of any
common law jurisdiction to pronounce what the rules of common law and
equity are. 28 According to the Basic Law, the Hong Kong Special Admin-
istrative Region is, among other things, a common law jurisdiction. 29 It is
true that Article 8 speaks of laws previously in force being maintained
subject only to amendment by the legislature. Nevertheless, by invoking the
notion of 'the common law' it was necessarily conferring a power on our
Court of Final Appeal to declare what common law and equitable rules are
valid for Hong Kong, just like final appellate courts do in all other common
law jurisdictions. It does not say that common law and equitable rules as they
were understood on 30 June 1997 can be changed only by legislation. It does
not refer to a system of rules frozen at a particular moment of time. The
notion of the common law includes, at least, a power to develop both
common law and equitable rules.

'Unconstitutional' legislation

Let us return to the question which Cheng refused to answer: which of three
possible foundational starting-points was he presupposing? He said it did not
matter which, since the content of correct juristic statements was the same. It
would be another matter, in accordance with Kelsen's theory, if all the legal
norms effectively applied and enforced could only be described as valid from
one starting-point. By-and-large efficacy of the system described is, Kelsen
claims, an essential pre-condition of juristic interpretation. '[W]e presuppose
the basic norm only if there exists a coercive social order by and large
effective.'30 'The basic norm is thus not a product of free invention. It refers to
particular facts existing in natural reality, to an actually laid down and effective
constitution and to the norm-creating and norm-applying facts in fact estab-
lished in conformity with the constitution.'31
Kelsen illustrates this point by reference to the effects on legal practice of
successful revolutions. When they have occurred, lawyers presuppose a new

28 Cf J WHarris, 'The Privy Council and the Common Law' (1990) 106 LQR 574.
29 Article 82 provides that the Court of Final Appeal may invite judges to sit on the court 'from other
common law jurisdictions.' Article 84 provides that the court may refer to precedents 'of other
common law jurisdictions.'
30 H Kelsen, 'Professor Stone and the Pure Theory of Law: A Reply' (1965) 17 Stanford LR 1128,1142.
31 'The Function of a Constitution' (note 14 above), p 115.
218 JW Harris (1994) HKLJ

basic norm.32 This claim was notoriously the subject of certain controversial33
decisions of courts in Pakistan, Uganda, and Southern Rhodesia in the 1960s.
If, then, some institution, whether in Hong Kong or in Beijing, were to start
enacting legislation for Hong Kong in a way not provided for in the Basic Law,
and if that legislation came to be effectively applied and enforced, some new
basic norm would be being presupposed by anyone who gave information about
the law which included this 'unauthorised' legislation. It should be noted,
however, that such a change in basic norm need not, consonant with Kelsen's
theory, be presupposed merely because some institution, whilst purporting to
act within the authority of the Basic Law, actually exceeds that authority (in
the view of some commentators).
Suppose the Standing Committee of the National People's Congress
declares some law in force before 1997 to be in contravention of the Basic Law,
pursuant to its power under Article 160, but the reasons it gives for making such
declaration seem wholly inadequate. Or supposing, under Article 17, it returns
a law of the Hong Kong legislature, and it appears to the observer that it had
no good ground for considering that the legislation was not in conformity with
the provisions of the Basic Law mentioned in that article. Or suppose the
Standing Committee should, under Article 18, add to the national laws listed
in Annex 3 without observing the limits in that article. Suppose the National
People's Congress amends the Basic Law, purportedly in exercise of its power
under Article 159, but it isconsidered that the amendment does, contrary to
that article, contravene the established basic policies of the People's Republic
regarding Hong Kong.
In all these cases, it would seem, Kelsen would require the Basic Law to be
interpreted as conferring power to enact legislation, in the alternative, either
in conformity with the limitations contained in the Basic Law or irrespective
of those limitations. That would be so because the Basic Law makes no
provision for reviewing any of these decisions. Kelsen says that if a constitution
makes no provision for judicial or other means of invalidating 'unconstitu-
tional' legislation, it must be interpreted as authorising, in the alternative,
either constitutional or 'unconstitutional' legislation.34
This notion of alternative authorisation constitutes an extremely artificial
rendering of the way the concept of authority actually functions within legal
practice 35and isalso inconsistent with the notion that officials and institutions

32 GTLS p 118. WJ p 124. PTL pp 49-50, 208-11.

33 The literature isdiscussed inJWHarris, 'When and Why Does the Grundnorm Change?' (1971) 29
CLJ 103 and 'Kelsen, Revolutions and Normativity' in Elspeth Attwooll (ed), Shaping Revolution
(London: Macmillan, 1991).
14 GTLS pp 155-6. PTL pp 271-6. Similarly, he maintains that, if national law is subsumed under
international law, there must be assumed to be a norm of international law authorising any by and
large effective national legislation even if its enactment violates a treaty obligation (GTLS pp 371-
2; PTL pp 330-1).
35 Cf J W Harris, 'Kelsen's Concept of Authority' (1977) 36 CLJ 353.
Vol 24 Part 2 The basic norm and the Basic Law 219

are subjected to legal role-duties by mandatory legislation (considered below).

Such as it is,however, it could be prayed in aid to solve a problem which arises
if statements of Hong Kong law are taken to be founded, ultimately, on the
constitution of the People's Republic of China. Article 31 of the Chinese
constitution empowers the National People's Congress to enact legal systems
for special administrative regions 'in the light of the special conditions.' On
4 April 1990, inpurported exercise of this power, the seventh National People's
Congress at its third session enacted the Basic Law for the Hong Kong Special
Administrative Region.
However, Article 1 of the Chinese constitution provides: 'The socialist
system is the basic system of the People's Republic of China.' Article 1 of the
Basic Law provides that the Hong Kong Special Administrative Region is 'an
inalienable part of the People's Republic of China.' How then could the
National People's Congress have been acting constitutionally when it pur-
ported to enact a law whose provisions stipulate that the socialist system and
policies 'shall not be practised' in this part of China?36 If Kelsen's conception
of alternative authorisation is accepted, one could interpret the Chinese
constitution as authorising the National People's Congress under Article 31 to
enact laws for special administrative regions either by observing the constitu-
tional limitations on its power or by transgressing those limits. Of course, this
problem does not arise as a question internal to Hong Kong law if the only
presupposed foundation is the Basic Law itself.
Thus, in terms of Kelsen's theory, we cannot choose between competing
formulations of the presupposed basic norm merely by showing that the
effectively enforced laws include provisions whose constitutionality is, from
one putative perspective, controversial. Only if some institution begins to
exercise effective legislative power without purporting to invoke some provi-
sion of the Basic Law can we be sure that there has been a breach in
constitutional continuity. Should that occur, a new basic norm would need to
be presupposed.
Even then, Kelsen's sketchy discussions of the'historically first constitution'
and the 'phenomenon of revolution' might well be inadequate for characteris-
ing the nature of the change. He generally writes as if all ultimate legislative
sources must arise altogether at some historical date. They are either promul-
gated in a written constitution, or come about through the crystallisation of a
customary constitution. In fact, the listed and ranked ultimate sources which
are 'presupposed' by legal practice may well derive partly from a written
constitution and partly from custom.37 In common law jurisdictions with
written constitutions, for example, local doctrines of stare decisis evolve as part

36 Cf Yash Ghai and Peter Wesley-Smith, 'Constitutional and Leqal System' in A J Halkyard and P
Smart, Trade and Investment Law inHong Kong (Singapore: Butterworths Asia, 1993), pp 14-16.
37 Cf Harris, Law and Legal Science (note 2 above), pp 70-81.
220 J W Harris (1994) HKLJ
(1994) HKLJ
220 J W Harris
of judicial practices and are seldom set out in the written constitution. Written
and customary sources are enmeshed in juristic interpretation.
The listed and ranked sources presupposed at any particular time may be the
outcome of minor breaches in constitutional continuity rather than dramatic
wholesale ouster of one constitution by another. All such matters can be
represented in terms of changing basic norms, using Kelsen's methodology
whilst not sticking to his terminology. For example, the notion of a technical
Kelsenian 'revolution' may be deployed as one way of representing develop-
ments, such as the House of Lords 1966 Practice Statement (by which it
assumed power to overrule its own decisions), or the change in judicial attitude
towards parliamentary sovereignty consequent upon the accession of the
United Kingdom to the Treaty of Rome.38

Legally irrelevant material

To return to Ho's unanswered question, assume that by 2007 no kind of

legislation isin force in the Special Administrative Region which cannot be
subsumed within the powers to legislate conferred by the Basic Law. The law
in force is the same, in every particular, whether one takes the normative
foundation to be just the Basic Law, or the constitution of the People's Republic
of China, or the United Kingdom constitution. Might it not be argued that the
best candidate is the one which fits most smoothly with the text of the Basic
Law itself?
The winner would then probably be a basic norm which takes the constitu-
tion of the People's Republic as foundational. The preamble to the Basic Law
refers to Article 31 of the constitution and recites that the National People's
Congress hereby enact the Basic Law. Article 1 of the Basic Law affirms that
Hong Kong is an inalienable part of the People's Republic. Many other
provisions vest powers or impose duties upon institutions of the People's
Republic. British enabling legislation is,on the contrary, nowhere mentioned
in the Basic Law; and the Hong Kong Act 1985 itself does not in terms refer to
the Basic Law (though it does to the Joint Declaration of the two governments).
On the other hand, the reference to the Joint Declaration in the preamble
to the Basic Law and the reference in Article 5to the 'previous capitalist system
and way of life' remaining unchanged for fifty years might be invoked in support
of the view that all the legislative powers set out in the Basic Law derive from
British devolution. Or again, the general principle of autonomy set out in
Article 2 and other provisions instantiating that principle could be prayed in
aid by someone who wanted to argue that the Basic Law is itself the basic
foundation of the system.
38 See RCross andJ W Harris, Precedent inEnglish Law (Oxford: Clarendon Press, 4th ed 199 1), pp 104-
8, 182-5,210-12.
Vol 24 Part 2 The basic norm and the Basic Law 221

From the standpoint of a strictly Kelsenian analysis, all such arguments have
to do with political ideology and are legally irrelevant - given our assumption
that it makes not a whit of difference to the content of the law whichever of
these alternatives is said to be presupposed. In fact, Kelsen's claims about legally
irrelevant products of the law-creating process have more far-reaching impli-
cations for the analysis of the Basic Law or of any other constitutional
document.
For Kelsen the function of a constitution within the hierarchy of by-and-
large effective norms which constitutes a legal order is exclusively that of
conferring more or less limited legislative power upon one or more legislative
organs. Constitutional documents and statutes frequently contain materials,
such as ideological pronouncements of one kind or another, statements of fact,
references to legislative purpose, and so on, which would appear nowhere in the
conditions of general legal norms stipulating the application of coercive
measures. 'All these are ... legally irrelevant products of the law-creating
process.'39 'If law is defined as norm at all, legal science cannot dispense with
the concept of legally irrelevant contents.'40
Again and again, Kelsen refers to tendencies within traditional legal science
whereby writers smuggle their ideological commitments or their views of
justice into what purport to be objective statements about the valid law. 41One
of the purposes of his pure theory is to disentangle mere propositions of law from
legal politics, by uncovering all the (and only the) assumptions which are made
when legal propositions (without politics) are asserted. In a sense, the word
'pure' has got into the wrong place. It is not the theory which ispure. The theory
is, or it is not, sound. It is a theory which purports to explicate 'pure'
information-giving legal propositions. The aim of the theory is 'to enable the
jurist concerned with a particular legal order, the lawyer, the judge, the
legislator, or the law-teacher, to understand and to describe as exactly as
possible his own positive law .. '42
Of course, the theory isnot sound if there exists no such activity as pure legal
information-giving, or if it is of insignifcant importance compared with other
activities which go on within that social institution we call 'law.' Perhaps it is
all really politics. Let us insert another interjection into the interview between
Economicus Ho and Kelsen Cheng.

Economicus Ho: About these restraints which, you say, the law imposes
upon my business plans - Well, I've dipped into the Basic Law myself, and

39 GTLSp 123.
40 PTLp 50.
41 See, eg, GTLS p xiii; PTL pp 1, 51,53,106,35-8; H Kelsen,'On the Theory of Interpretation' (trans
B and S Paulson) (1990) 10 Legal Studies 127.
42 GTLS p xiii.
222 J W Harris (1994) HKLJ

in Article 5 it says that 'the previous capitalist system and way of life shall
remain unchanged for 50 years.' I'm a capitalist, aren't I? And the pursuit of
profit without restraint is my way of life!
Kelsen Cheng: Yes, Mr Ho. But you see there is a later chapter of the Basic
Law specifically dealing with economic matters (Chapter 5), and some of
the provisions of that chapter might have the effect of imposing limits on
the legislative capacity of the Hong Kong legislature. The article to which
you refer adds nothing. It expresses a political commitment, no doubt; but,
like the other general principles affirmed in Chapter 1, it has no bearing on
the scope of anyone's legal duties. It is legally irrelevant.

If we apply a rigid Kelsenian analysis to the terms of the Basic Law we would
go through its provisions in the following way. Parts of it may enact or adopt
specific general norms which direct how coercive measures are to be applied.
Other parts may confer legislative powers. Most importantly, many of its
provisions may be read as limiting legislative power. All these are legally
relevant. The rest is ideology, legal politics. Of course, political ideologies are
of the first importance in the life of communities. Any social scientist should
give them great attention. But they represent no more than subjective world
views or casts of mind.43 They are not part of that objectively describable
normative order which is law. The provisions of the Basic Law which cannot
be read as legislation or as conferring or limiting legislative power might just as
well have appeared in any other document, except that inserting them in the
constitution may be an expedient means of publicising them. If they play no
role in the exposition of general norms directing sanctions they may be
wondrously worthy; they may play an important psychological role in the chain
of social causes and effects. But they are legally irrelevant.
Chapter 1 of the Basic Law enunciates certain general principles -
inalienable Chinese sovereignty, Hong Kong autonomy, the capitalist system
and way of life, the right of private ownership of property, and so on. Supposing
someone in the position of Kelsen Cheng (the legal adviser), or someone
writing a textbook about some aspect of Hong Kong law, has already conveyed
accurate and comprehensive information about the relevant laws in force in
Hong Kong, what need has he to top-dress his information by any citation of
these general principles? They may figure in political discussions concerning
the future development of the Special Administrative Region, then being
given whatever colour the participant in such a discussion considers important.
But save to the extent that they can be read as imposing fetters on legislative
power, what 'legal' relevance do they have?
The same questions may be asked of those provisions which embody rule-
of-law values. Article 25 states: 'All Hong Kong residents shall be equal before
" EL ch 5.
Vol 24 Part 2 The basic norm and the Basic Law 223
vol 24 Part 2 The basic norm and the Basic Law 223
the law.' Article 42 states: 'Hong Kong residents and other persons in Hong
Kong shall have the obligations to abide by the laws in force in the Hong Kong
Special Administrative Region.' Assuming that you already know the valid
laws on any topic, that you have already taken on board the particular concrete
rights, liberties, powers, and obligations which these laws confer or impose,
what does it add to be told that the law applies equally to you, or that the legal
duties you have are legal duties?
These articles could perhaps turn out to be fetters on legislative power.
Again and again, the Basic Law reiterates that laws which contravene the Basic
Law are excluded. It may be that Article 25 rules out some forms of reverse
legislative discrimination, and that Article 42 disentitles the legislature from
enacting laws which exempt state officials from otherwise general legal obliga-
tions. The point of the Kelsenian analysis would be to force questions: how is
a provision to be fitted into the formal structure of the law, as distinct from
being an announcement of political aspiration?
The same analysis could be pushed right through the Basic Law, as it could
with any other constitutional document. The definitions of institutional
structures would no doubt figure in a Kelsenian reconstruction since such
institutions will be referred to as part of the content of innumerable laws. Some
of the 'shall' provisions in Chapters 5 and 6 would be more problematic. On
their face, they appear to direct the government of the Hong Kong Special
Administrative Region and the government of the People's Republic, and
various Hong Kong and Chinese institutions, what to do. Could these be
genuine legal duties if no provision is made for enforcement? Might they be
merely aspirational political programmes?
There is some ambivalence in Kelsen's last work - the postumously
published General Theory of Norms - about the status of explicitly mandatory
provisions which are not supported by sanctions. On the one hand, he
maintains his often-repeated view that the concept of legal duty refers only to
conduct the opposite of which ismade the condition of a sanction. From this
it follows that unsanctioned imperatives do not impose duties and, if they
cannot otherwise be fitted into the conditions of further coercion-stipulating
norms, they are legally irrelevant. 'If the legislator were to command that loans
be repaid or to forbid committing theft, without attaching a sanction to the
non-repayment of loans or the commission of theft, he would merely be
expressing a legally irrelevant wish; the repayment of loans and the avoidance
45
of theft would not be legally commanded.'
On the other hand, he occasionally speaks of mandatory norms addressed to
officials as commands, whether or not a further norm provides for punishment

44 GTLS pp 54-6, 58-9. WJ pp 275-7. PTL pp 111-17.

45 GTN p 97.
46 GTN p 103.
224 J W Harris (1994) HKLJ

of the official, by invoking a quite different concept of role-duty. 'Judges are

empowered by statutes to apply general legal norms to concrete cases. As a rule,
they are also commanded to do so. A judge violates the duties of his office if he
refrains from making use of his power in a concrete case: he acts illegally.'46
By extension of this idea, could we not say, of unsanctioned provisions in the
Basic Law which require Hong Kong and Chinese institutions to take or refrain
from various measures, that a failure to comply in a particular case is an illegal
departure from prescribed role-duties, and hence such provisions are not legally
irrelevant? Indeed, it may be argued that direct invocation of the value of
legality makes all imperative legislative provisions duty-imposing (and hence
legally relevant) irrespective of sanctions, so that the fundamental units into
which legal information is reducible are duty-imposing and duty-excepting
47
rules rather than coercion-stipulating norms.
What should we make of the rights and freedoms set out in Chapter 3 of the
Basic Law? Some of these provisions may be interpreted as directly enacting, or
reaffirming, specific general norms such as the prohibition of torture by Article
28, or the inviolability of homes proclaimed in Article 29. Others may be
understood as restrictions on legislative power - like the freedoms of speech,
association, assembly, demonstration, forming trade unions, and striking in
Article 27; the freedoms of movement and emigration in Article 31; the
freedoms of conscience and religious practice in Article 32; the freedom of
choice of occupation in Article 33; and the academic and cultural freedoms in
Article 34. Sometimes, however, the qualification 'lawful' is built into the
prohibitions set out in this chapter. Article 28 prohibits 'unlawful,' as well as
'arbitrary,' arrest and body searches. Article 36 confers a right to social welfare
'in accordance with law.' Article 37 provides that freedom of marriage and the
right to raise a family freely 'shall be protected by law.' Article 38 states that
residents shall enjoy the other rights and freedoms 'safeguarded by the laws of
the Hong Kong Special Administrative Region.' In all these cases, if one knows
what the law is already, what do these prescriptions add? Are they not simply
statements of political aspiration which are, in Kelsenian terms, legally irrel-
evant?

Legal principle

Should we buy this type of analysis? Is there any point in sieving through a
constitution so as to distinguish those provisions which actually enter into the
content of specific legal provisions from those which are 'legal politics'? Should
we rather dismiss the whole enterprise as 'formalist' or 'positivistic' - an
exercise in logic, not in life?

47 Cf Harris, Law and Legal Science (note 2 above), pp 102-6.

Vol 24 Part 2 The basic norm and the Basic Law 225

That would certainly be appropriate if we are sure that persons like Kelsen
Cheng do not, will not, and never did exist. Nobody ever conveys distinctively
legal information. Lawyers and others who refer to the law always make
statements of past or future fact, or express their moral opinions, or point to the
moral or political judgments of others.
All theoretical claims about law are hostage to what we conceive legal
practice to amount to. Legal practice is,I would suggest, a multifaceted activity.
No theoretical representation has ever succeeded in capturing all that goes on.
A real lawyer in Kelsen Cheng's situation would not refuse to speculate
predictively about the likelihood of detection and enforcement. He would not
have insisted on sending Economicus Ho across the road to his friend
Sociologicus.
For all that, I think that pure legal information-giving is a distinct and
important facet of legal practice. It takes place on countless occasions, not
merely across the lawyer's desk. It occurs whenever someone who happens to
have the information tells someone else what are the tax rates, the parking
restrictions, the age of marriage rules, the schedules of social security benefits,
the intestacy laws, and so on, in force in a particular place at a particular time.
But giving legal information isnot all that lawyers do. They engage in legal
reasoning and legal justification over matters which are not settled by the
prescriptions valid within a Kelsenian reconstruction. Sometimes, they appeal
to principles. They assume that not all political principles are in point, but only
those which are embedded within legal doctrine. Should we not therefore
distinguish the latter as 'legal principles'?
Kelsen was aware that this happened, but he suspected it was a cover for
smuggled politics. 'If the concept of a legal norm is not clearly distinguished
from that of a legal principle, then the boundary between positive law on one
side and morality, politics, and manners on the other is blurred: the only people
who can want such a result are those representatives of legal science who
consider it their task not so much to know positive law and describe it
objectively, as to justify or question its validity on moral or political grounds
and so engage in highly subjective evaluation of law under the banner of
objective legal cognition.'48
Curiously, Kelsen would be at one on this point with the modem adherents
to critical legal studies. Roberto Unger, for example, maintains that legal
reasoning cannot be separated from open-ended controversy about the terms
of social life. Legal reasoning and full-blooded politics are not to be differenti-
ated. 49 Of course, Kelsen and adherents to the CLS movement would part
company on the question of whether legal prescriptions could ever unambigu-
ously stipulate anything.
48 GTN p 117. The comment isdirected specifically at Joseph Esser's transformation theory. Kelsen was
apparently not acquainted with the writings of Ronald Dworkin.
49 R M Unger, The CriticalLegal Studies Movement (Cambridge, Mass: Harvard University Press, 1986).
226 JWHarris (1994) HKLJ

In stark opposition to the Kelsenian position stand those legal philosophers

who contend that, whilst political judgments always enter into our legal
conclusions, legal reasoning and legal justification are nevertheless distinct
from untrammelled political controversy. The most celebrated representative
of this camp isRonald Dworkin. For Dworkin, law is not something as to which
we give descriptive information. It is something about which we argue. We
support our arguments by a combination of authoritative materials (the
dimension of fit) and appeals to justice, fairness, and procedural due process
(the substantive dimension). 50 In brief, law is the best politics that will fit the
authoritative materials.
I cannot here discuss the far-reaching implications of these contrasting
jurisprudential positions. 51 Suffice it to say that Kelsen's claims about legally
irrelevant materials cannot be accepted without qualification if we suppose
that legal doctrine constitutes a distinctive form of normative justification to
which appeal may be made in all those many cases where the outcome to be
reached merely by applying formally valid enactments is unclear. In brief, law
is rules plus doctrine. In that case, principles embedded in doctrine are not
legally irrelevant since they constitute the basis of one model of legal reason-
ing.5" To suppose this does not commit one to Dworkin's claim that there will
always be a uniquely correct answer.53
Systems like the common law and equity are not merely collections of rules
plus a power in final appelate courts to mould, develop, or alter these rules. They
are replete with choice-guidance devices of many kinds which may always be
invoked in interpreting the law. The same is true of constitutional statements
of principle or value or political commitment. All such matters figure in the
reasoning of courts and legal advisers do and should draw them to clients'
attention as occasion requires.
A maxim forming part of the tradition of a law-applying institution (which
may be invoked to guide interpretation) isa specifically legal principle whether
or not it also instantiates some broader political value. The common law
principle that in pari delicto potior est conditio defendentis, or the equitable
principle that a statute is not to be used as an instrument of fraud, are legal
principles in this sense; but it would be difficult to characterise them as broad
political principles. Maxims contained in constitutional documents will be
both legal principles, given a particular meaning by the tradition of the courts
which have interpreted them, and statements of political aspiration to which
the community has announced its commitment. Of course, it can always be

50 Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).

51 I have compared Unger's and Dworkin's positions in 'Unger's Critique of Formalism in Legal
Reasoning: Hero, Hercules, and Humdrum' (1989) 52 MLR 42.
52 Cf Harris, Law and Legal Science (note 2 above), ch 5.
53 R M Dworkin, 'Is There Really No Right Answer in Hard Cases? in R M Dworkin, A Matter Of
Principle (Cambridge: Harvard University Press, 1985).
Vol124 Part 2 The basic norm and the Basic Law 227
Vol 24 Part 2 The basic norm and the Basic Law 227
claimed that the 'correct' articulation of the community commitment pointed
to by the constitutional maxim ought to be the underlying concern of courts in
performing their interpretive tasks. Yet it is also always possible for a critic to
contend that, whilst the 'true' meaning of a value enunciated in the constitu-
tion is one thing, as a matter of constitutional law it has, regrettably, turned out
to have a quite different signification in the jurisprudence of the relevant final
appellate authority.
The Basic Law repeatedly excludes from the laws of the Hong Kong Special
Administrative Region any rule which contravenes the Basic Law. The power
of interpretation of the Basic Law is, by Article 158, vested in the Standing
Committee of the National People's Congress. However, it isalso stated in that
article that the Standing Committee 'shall authorise' the courts 'to interpret on
their own in adjudicating cases the provisions of this law which are within the
limits of the autonomy of the Region.' As to provisions outside these limits, the
Court of Final Appeal is to seek an interpretation from the Standing Commit-
tee and courts are required to follow any such interpretation.
It may be that a body of constitutional case law will emerge insofar as the
courts render interpretations 'on their own.' That is what has happened in
other common law jurisdictions with written constitutions. Should that occur,
the 'true' import of the listed rights and freedoms and other values affirmed by
the Basic Law - sovereignty, autonomy, the capitalist system and way of life,
equality before the law - may diverge from what is acknowledged to be their
significance as a matter of constitutional law. (Presumably, no such divergence
could emerge from the interpretive pronouncements of the Standing Commit-
tee, since that is not a body infused with common law notions of precedent and
case law. Of these pronouncements a critic may say that, whilst the Committee
understands these values in a certain sense, he contends that they should be
understood some other way; but not that the Committee's interpretations
depart from established principles of constitutional law.)
It follows from all this that the terms of the Basic Law should be sieved
through with an eye on a three-way (rather than Kelsen's two-way) split. Some
provisions, or some understandings of some provisions, will actually figure in
the articulation of laws laying down particular legal duties, or of powers to
create such duties. Some may be predictable candidates for founding bodies of
constitutional principles which the courts will apply in interpreting both the
Basic Law and subordinate legislation, and which will be added to the maxims
of common law and equity as guides to the development of case law generally.
But some will remain glorious (or empty) political commitments of no concern
to legal practice.
How the Basic Law's provisions will actually fare is for the future to reveal.
A Kelsenian analysis can only set the scene by forcing a series of questions about
their possible import. That, at least, it does.
228 J W Harris (1994) HKLJ
(1994) HKLJ
228 1 W Harris
Efficacy

Let me return, for the last time, to the question which Kelsen Cheng refused
to answer, about possible alternative presupposed bases for a formal reconstruc-
tion of normative empowerment. For Kelsen, nothing but efficacy dictates
which basic norm is to be presupposed. 54 However, as was argued above, it may
be possible to interpret the same efficacious set of prescriptions as a binding
order of norms from more than one foundation.
There are passages in Kelsen's writings in which he appears to indicate that
commitment to political values also enters into such a choice. He says that an
anarchist would not presuppose the basic norm,55 and that a communist would
not presuppose the basic norm which confers validity on the norms of a
capitalist legal order. 6 Such remarks were understood by some commentators
to have a reverse implication. One who presupposed the basic norm must
approve the values implemented by the law. 7
In a famous note to the second edition of Reine Rechtslehre, Kelsen denies this
implication. He concedes that his reference to anarchists not presupposing the
basic norm had been 'misleading ... anarchism is a political attitude, based on
a certain wish. The sociological interpretation, which does not presuppose a
basic norm, is a theoretical attitude.'58 Not presupposing the basic norm entails
a decision to interpret interhuman relations as factual power relations and
avoid the normative language of legality altogether. 9 Presupposing or not
presupposing a basic norm has nothing whatever to do with political commit-
ment. The only normativity to which juristic interpretation of legal practice
commits one is that pallid normativity which consists of, and goes no further
than, attributing normative power to those who promulgated the historically
first constitution. 'Even an anarchist, if he were a professor of law, could
describe positive law as a system of valid norms.'6 °
If efficacy alone were the basis for foundational juristic assumptions, why
should we not include, as well as past evidence about effective law-application
and enforcement, confident predictions which we may make about such events
in the future?
Kelsen never addressed that problem. In his simplistic references to 'the
phenomenon of revolution' he assumed that one was viewing the situation,
after the event, when either a revolution had undoubtedly succeeded or it had
undoubtedly failed. What if it is in the balance? That was the issue which

4 GTLS pp 118,437. WJ p 22 4. PTL pp 46-50, 86-7,208-11. And see text cited in notes 30 and 31
above.
55 GTLSp413.
56 'Professor Stone and the Pure Theory of Law' (note 30 above), p 1144.
57 Cf J M Eekelaar, 'Principles of Revolutionary Legality' in Simpson (note 19 above).
58 PTLp 218 n.
59 PTL pp 217-18.
60 PTLp 218 n.
Vol 24 Part 2 The basic norm and the Basic Law 229

provoked so much criticism of the application by the Rhodesian courts of

Kelsen's theory in the 1960s.61
It is possible to answer questions Kelsen never addressed, while sticking
strictly to his methodology. If in a time of turmoil there are no promulgated
rules (just or unjust) which are by and large applied and enforced, it would seem
that no foundational presupposition could be made. Legal information-giving
would be pointless. There would, for the time being, be no law. Has that not
been the case at times and places in the history of the world? It may have been
so in parts of China at the height of the Cultural Revolution.
If the laws presently effective within a territory can be validated by
presupposing different foundations, but one can be sure that should conflicting
norms emerge referable to the different candidates only one set would be
enforced, is not that predicted efficacy a reason (consistent with Kelsen's
premises) for naming that one the basic norm which juristic interpretation
actually presupposes? That is,I suggest, the answer to puzzles which have been
raised about constitutional devolution and independence. The year following
the enactment of the constitutions of one of the older dominions of the British
Commonwealth, if one had asked a local lawyer what would happen if the
United Kingdom parliament purported to repeal the constitution and to
resume direct legislative power, he might have said: 'In that case, alas, our
courts and officials would enforce the British legislation.' Ifso, he would be, in
his juristic statements, continuing to presuppose the United Kingdom consti-
tution as foundational. But at some point - probably not very far on, and very
likely before the passing of the Statute of Westminster of 1931 - local lawyers
would have said that should the United Kingdom parliament do anything so
foolish, our courts and officials will apply 'our' constitution. Whenever that
change came about - and we shall never know precisely because the matter
was happily not put to the test - the dominion constitution was taken to be
foundational. A new basic norm conferring ultimate norm-creating power on
whoever promulgated the constitution was presupposed.
Suppose, after 1997, the British parliament was crazy enough to repeal the
Hong Kong Act 1985 and to purport to legislate for the territory. We can
confidently predict that no official within Hong Kong would enforce such
legislation. Suppose that the National Congress of the People's Republic of
China were to purport to repeal the Basic Law (something not permitted by the
Basic Law itself), or to ignore the Basic Law in legislating for Hong Kong. Ifyou
have no doubt that Chinese legislation would be effectively enforced in Hong
Kong, and if you take it that all lawyers giving information about Hong Kong
law after 1997 will share this assumption, then that isthe new basic norm -
one which takes the constitution of the People's Republic as foundational. So

61 See note 33 above.

230 J W Harris (1994) HKLJ

long as that unhappy possibility is not raised, or if there is any doubt about final
effective power, we can say that Hong Kong lawyers may be understood as
presupposing either a basic norm which authorised the creation of the Basic
Law or as presupposing a basic norm which authorised the creation of the
constitution of the People's Republic. Perhaps the constitutional provisions as
to autonomy, the capitalist system, fundamental rights and freedoms, and the
common law can be understood as undertakings that the question need not be
asked because the scenario will not arise - at least for fifty years. In that way
our Kelsenian analysis will have revealed what was perhaps obvious enough if
one had thought the matter through from any other angle. The structure of the
Basic Law is designed to enable law to function in Hong Kong whatever view
one takes on the question whether its legal system really is a separate system.