Law and Society

LLAW1009 2023-2024
Tutorial 3

Professor Anne Cheung

Department of Law
The University of Hong Kong

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 To reflect on

How a society resolves disputes

Learning The role of judges
Objectives The role of the court
The concept of Rule of Law

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Lon Fuller 1902-1978

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Q.1 Two Basic Forms of Social Ordering
p.357-8

1. organization by common aims

• Men may come together to secure an advantage for all participants
• Wanting the same thing(s)
• E.g. labour union, voluntary association, Law Association, nation
2. Organization by reciprocity
• Wanting different things e.g. trading, exchange, buying a loaf of
bread

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Q. 2 Distinguishing characteristic of
adjudication

• - “it confers on the affected party a peculiar form of participation in

the decision, that of presenting proofs and reasoned arguments for a
decision in his favour” p. 364
1. Peculiar mode by which the affected party participates in the
decision
2. The peculiarly urgent demand of rationality that the process
demands
3. Judging claims of right and accusations of fault p. 370

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Q. 3 Adjudication and Rationality

• Adjudication is a device which gives formal and institutional

expression to reasoned argument in human affairs
• Assumes a burden of rationality in social ordering
• Its decision must meet a high standard and a peculiar kind/standard
of rationality p. 367
➢ Its strength and weakness
➢ Confined to claim of rights

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Q. 4 Adjudication are only claims of right or
accusations of fault

• It is the function of courts to ‘declare rights’

• Limited to cases where rights are asserted and tested
• The design by the institutional framework
1. Adjudication is a process of decision that grants to the affected party a form
of participation that consists in the opportunity to present proofs and
reasoned arguments
2. The litigant must assert some principle by which his arguments are sound
and his proofs are relevant
3. Claim of right is a demand supported by a principle
4. Issues tried are claims of right or accusations of fault p. 369

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Q.5 Why is partisan advocacy important?
p. 383-4

• Combatting the natural human tendency to judge too swiftly: gives

time to explore the peculiarities and nuances
• Allows preliminary ananlysis of issues at preparatory stage: what
facts can be proved
• A public trial of the facts and issues
• Necessary for an impartial judgment and for larger ordering of affairs
• The benefit of intelligent and vigorous advocacy on both sides

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Q. 6 Lawyer as a guardian of due
process? P.384-5

• Lawyers must be faithful to the required procedures and institutions>

essential for the function of our society
• Duty to preserve and advance the indispensable cooperation
• Duty attached to his relation with the public, not only to their clients
• Has an affirmative duty to help shape the growth and development of
public attitudes toward fair procedures and due process
• E.g. discovery of relevant documents including those harmful to one’s
case; full and frank disclosure of ex parte application

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Ma So So Josephine v Chin Yuk Lun
Francis (2003)
• Chief Justice Li:

• 1. The proper conduct of litigation by the legal profession is essential to the administration

of justice. This appeal concerns the position of solicitors. They are officers of the court and

owe duties to the court in the conduct of proceedings. The court has an inherent

jurisdiction to supervise their conduct and to impose sanctions where the solicitor

concerned has acted in breach of his duties to the court.

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Q. 7 Alternative Dispute Resolution
• Alternative: substitute for the traditional dispute resolution
mechanism, namely the court

• Goals:
1. To relieve court congestion, reduce undue costs and delay
2. To enhance community involvement in the dispute resolution
process
3. To facilitate access to justice
4. To provide more “effective” dispute resolution

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Q. 8 Multi-Door Courthouse
• Traditionally, the courthouse only offers one “door” for resolving
disputes, i.e. court adjudication
• A dispute resolution centre provides a variety of dispute resolution
processes according to the needs of the particular dispute under one
roof
• The concept of MDC is premised on the notion that there are a range
of dispute resolution processes and there are advantages and
disadvantages in any specific case to using one or another dispute
resolution process
• Modern courthouse should have different doors leading to different
processes
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• Primitive mode
• Cases would be assessed and referred to mediation, arbitration,
court adjudication, fact-finding, malpractice screening, media
action lines or an ombudsman
• Ideal mode
1. Small claims adjudication
2. Services for continuing relations cases
3. Ombudsmen
4. Social service
5. Trial court
6. Compulsory arbitration for small monetary claims

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Q. 9 Judicial Mediation
• Benefits:
1. Facilitation of early settlement
2. Introduction of a ‘culture of mediation’

• Criticisms:
1. Blurring of the judicial role
2. Abuse of the judicial function
3. Lack of mediation skills
4. Lack of transparency
5. Compromise of impartiality
6. Relocation of judicial resources
7. Limited choice of judges if mediation fails 14
Q.11

• Discuss how these concepts are related: the Rule of Law, the
Separation of Powers and Judicial independence

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Your approach?

• Define the concepts

• Any overlapping elements?
• Any common elements?
• Any common theme/purpose?

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Q. 10 The Most
important elements of
the concept of the Rule
of Law

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Tom Bingham Photograph: David Levene, The Guardian

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Rule of Law

• All persons and authorities should be bound by and entitled to the

benefit of laws publicly and prospectively promulgated and publicly
administered in the courts p. 69

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 1. law must be accessible, be intelligible, clear and predictable: applies to
legislation and judgments
- Ensure there is a clear majority
- Preclude excessive innovation and adventurism by judges
- Judges may not develop the law to create new offences or widen existing
offences
2. Q. of legal right and liability should ordinarily be resolved by application of the law
and not by the exercise of discretion p.72
3. apply equally to all (with exception?) p. 74
4. must afford adequate protection of fundamental human rights
5. affordable: means must be provided for resolving disputes in court e.g. Legal Aid
scheme
6. ministers and public officers must ex. Their powers in good faith and without
exceeding the limits of such powers> judicial review> separation of power
7. adjudicative procedures must be fair p.80
8. Compliance by the state with its obligations in international law

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Goeffrey Ma, former Chief Justice
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Judicial independence
• The ex. Of judicial power requires judges to determine and handle
cases strictly in accordance with the law and legal principles
• Judges shall be chosen on the basis of their judicial and professional
qualities (art. 92 BL)
• Should exercise judicial power independently, free from any
interference
• Conduct fair trial i.e. burden of proof, presumption of bail,
presumption of innocence
• Impartiality of judges

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Lord Denning

• To every subject of this land, however powerful, I would use Thomas Fuller's words
over three hundred years ago,

‘Be ye never so high, the law is above you.’

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