Law, Politics and Professional Projects: The Legal Profession in Hong Kong
| DOI | 10.1177/a020307 |
| Date | 01 December 2001 |
| Author | Wai Man Sin |
| Published date | 01 December 2001 |
| Subject Matter | Articles |
LAW, POLITICS AND
PROFESSIONAL PROJECTS:
THE LEGAL PROFESSION IN
HONG KONG
SIN WAI MAN
City University of Hong Kong
ABSTRACT
This article attempts to theorize on the Hong Kong legal profession by examining the
changing positions and roles of lawyers in three episodes of Hong Kong’s recent legal
history: use of Chinese as a legal language, the right of abode issue and the right of
audience debate. In developing an indigenous theory (or indigenizing western
theories), I suggest, attention must be paid to the social context – the long use of English
as the sole legal language in a predominately Chinese-speaking society, and the special
social-political functions of law in defending Hong Kong from China and of being a
source of legitimacy for the government – in which Hong Kong lawyers find them-
selves and which distinguish them from their western counterparts. Thus, the theor-
etical framework I develop is one based on the concept of professional project, with
due recognition to the social-political functions of the law in Hong Kong. I also argue
that the concept of ‘social capital’ could provide a crucial connection between a Weber-
ian self-interested reading and a Durkheimian altruistic reading of Hong Kong lawyers.
It is further suggested that the framework, though inevitably of limited applicability
to other societies, may shed light on the role of lawyers in other countries where law
has also assumed a particular significance as a source of legitimacy for government.
INTRODUCTION
In 1999 six hundred lawyers, dressed in black, marched in silence through the
heart of downtown Hong Kong to protest against the government who, they
argued, were undermining the rule of law in its decisions over the issue of the
right of abode (South China Morning Post, 1 July 1999). The debate over the
right of abode, widely understood as one of the most important issues in
Hong Kong’s legal and social history, was brought about by the coming into
SOCIAL &LEGAL STUDIES 0964 6639 (200112) 10:4 Copyright © 2001
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force of the Basic Law, on 1 July 1997, when Hong Kong was returned to
China. Importantly, and revealingly, there were differences between the two
branches of the legal profession. The Bar was in the forefront of challenging
the government on the issue, while the Law Society was generally support-
ive of the government. With regard to another legal change, – the use of
Chinese in law, also caused by the change of sovereignty – however, the
lawyers were united. The Bar and the Law Society were more reluctant than
the government to accept a bilingual legal system. This article seeks to con-
sider the similarities and differences between the Bar and the Law Society on
these issues through the perspective of ‘professional project’ and, in particu-
lar, via consideration of the special functions law has been seen to serve in
post-colonial Hong Kong.
The article tracks the changing positions and roles of lawyers in three
episodes in Hong Kong’s recent legal history during the period 1987 to 2000,
a time when Hong Kong faced enormous pressure to change caused by the
handover of sovereignty in 1997. Since the focus is on the legal profession I do
not attempt to address all the complex legal and social issues involved. The
article explores, first, the changes in the policy towards legal language since
1987. The reactions of the legal profession are examined from the perspective
of ‘professional project’, in which the major goal of a profession is understood
to be to strive for the monopoly of the service it provides. In the terms of its
professional project, it will be argued that it has been essential for the legal pro-
fession to negotiate constantly with the state and the society for the continu-
ance and legitimacy of its monopoly. I argue that the legal profession in Hong
Kong was divided on the issue of language between senior and junior lawyers,
groups whose vested interests in the continuing use of English were different
in a number of ways. I will proceed to explore the right of abode issue and the
way in which the two branches of the profession responded differently to
decisions made by the government, with the Bar Association, in contrast to
the Law Society, proving to be one of the fiercest critics of the government. It
will be argued that in post-colonial Hong Kong, law serves two new functions.
The first is informed by a concern to defend Hong Kong from China. This, in
turn, has caused lawyers to take on a distinctive social-political role as defender
of Hong Kong against China. Second, the rule of law has assumed a particu-
lar significance as a source of legitimacy for the Hong Kong government. As
a result, both the Bar’s criticism and the Law Society’s ambivalent support of
the government, on what might have been purely legal grounds, have had sig-
nificant political implications in post-colonial Hong Kong. These new func-
tions of law, and the consequent roles of lawyers, distinguish Hong Kong
lawyers from their western counterparts in a number of respects. The third
issue to be explored concerns a clash between the different professional pro-
jects of barristers and solicitors around rights of audience, in particular follow-
ing the Law Society pleading for greater rights of audience in 2000. I argue that
the social capital that barristers gained by the positions they took on the right
of abode issue itself informed the subsequent strategies in this new and latest
round of struggle for a bigger market share of legal services in Hong Kong.
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