A Comparative Study of the Meaning and Importance of Several Constitutional Cases in the Highest Courts of the PRC, Hong Kong, & Taiwan

This dissertation, "A Comparative Study of the Meaning and Importance of Several Constitutional Cases in the Highest Courts of the PRC, Hong Kong, & Taiwan" by Robert J, Morris, was obtained from The University of Hong Kong (Pokfulam, Hong Kong) and is being sold pursuant to Creative Commons: Attribution 3.0 Hong Kong License. The content of this dissertation has not been altered in any way. We have altered the formatting in order to facilitate the ease of printing and reading of the dissertation. All rights not granted by the above license are retained by the author. Abstract: Abstract of Thesis Entitled: A COMPARATIVE STUDY OF THE MEANING AND IMPORTANCE OF SEVERAL CONSTITUTIONAL CASES IN THE HIGHEST COURTS OF THE PRC, HONG KONG, & TAIWAN Submitted by ROBERT J. MORRIS, JD In partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY At the University of Hong Kong April 2007 The ways in which the highest courts of the PRC, Hong Kong, and Taiwan have decided recent important constitutional cases reveal fundamental explanations of how these three areas of Greater China have developed along different political and social paths despite their common Chinese ancestry, history, and culture. Indeed, they reveal that in terms of the law, concerns of ancestry, history, and culture are far less important than the common (constructed) social-political experience (including psychology) of a people that together determine what is commonly called "identity," and that (legal) identity is not monolithic, essentialized, or totalized even within "Greater China." It appears that nothing-not past or politics or dogma-is necessarily legal prologue, even though such extralegal influences sometimes bear heavy sway. Rather, a i process of "selective adaptation" has been at work in the law and courts of each of the three areas according to the paths sets by politics, history, and current events in each. The methods and reasons by which the three courts have positioned themselves in their respective polities provides an entry into a comparative study of their methodologies and holdings in terms of these positioning maneuvers vis-a-vis the cases. The study focuses on the fact that the courts and their cases are different, not on why this is so. These analyses proceed along the lines of traditional legal methods, using traditional legal sources and theory in order to examine both the specific cases themselves as well as the jurisprudence of comparative law. In these ways and in its order of progression (PRC, Hong Kong, Taiwan), the thesis seeks to define and employ a better, more fine-grained methodology of comparative law and of both the content as well as the maneuvering tactics of the cases and the three courts inter sese, than is usually applied to the study of law in Greater China, and to "see it whole." The thesis concludes that the comparative analysis makes possible the thought of political, or at least legal, detente as among the three regimes within Greater China through the rule of law and the coercive power of the state. Such analysis is crucial both globally and locally in the post-WTO globalized world where both scholars and practitioners who work across borders need to understand how systems may be exceptional and striking in their differences and similarities-especially within the "One China" view that tends to erase or essentialize important comparisons. In sum, the thesis accepts and typifies the dictum of Bernhard Grosfeld that "Comparative law is without a doubt the most promising part of modern jurisprudence." ii DOI: 10.5353/th_b3767862 Subjects: Courts of last resort - ChinaAppellate courts - ChinaCourts of last resort - China - Hong KongAppellate courts - China - Hong KongCourts of last resort - TaiwanAppellate courts - TaiwanCourts of last r