Caldwell focuses on how the experience of the Weimar Republic’s failure influenced the formation of Germany’s second democracy, the Federal Republic of Germany. It highlights how the actors who shaped the Bonn Republic actively compared Weimar and Bonn: The “Weimar analogy” here was not an abstraction, but highly present both as a lesson and as a trauma. “Bonn’s Weimar” demonstrates how a historical analogy may work in practice and it proceeds to make several general arguments about the way the analogies work. In particular, the chapter shows that there was never one Weimar analogy but that it is mobilized in different ways, by different actors, to make sense of democracy’s failure.

Clearly the PRC would be – and was – against any significant moves by the UK in the meantime. Unlike the usual colonial template for the emergence of independent entities, whereby self–government was introduced on the way to formal independence, Hong Kong was no Malaya or Nigeria. By the terms of the Declaration itself, even from the UK’s perspective, what was involved was the ‘restoration’ to China of Hong Kong, which now was to be accompanied by nothing far short of a calculated provocation. The Joint Declaration had not provided, or promised, democratic reform. It was to be promised subsequently in China’s Basic Law for post–handover Hong Kong. Equally the Joint Declaration did not prevent explicitly the UK from commencing democratic reforms once Hong Kong was lost to it. That was the door wherein Britain went.

Chapter Six looks at how the design and implementation of the Hong Kong version of “One Country, Two Systems” and its discontents. The Basic Law guarantees some fundamental rights and freedoms for Hong Kong’s residents. It promises eventual universal suffrage of the government. But an alliance of Beijing and the local business elite prevented it from specifying the exact form and timetable for universal suffrage. It also contains a clause about the necessity of anti-subversion legislation that threatens preexisting rights and freedoms. These contradictions and ambiguities of the Basic Law sowed the seeds of political conflicts after 1997. These conflicts, coupled with the rising monopoly of Chinese capital in Hong Kong, stimulated Beijing’s urge to forfeit indirect rule and move to a radical assimilationist politics and direct rule. Beijing’s urge has been articulated systematically by a group of official scholars who advocated Beijing’s statist absorption of Hong Kong as a rehearsal of China’s power projection farther abroad. Beijing’s premature crackdown on Hong Kong’s autonomy unleashed escalating resistance that culminated in the great clash of 2019.

This chapter uses Hong Kong to illustrate the unique constitutional law challenges facing subnational jurisdictions, including that of dividing competences between the subnational and national authorities, of finding a mutually agreeable conflict resolution mechanism and of defining the place of the subnational constitution within the national constitutional order. As the only liberal, common law jurisdiction within a socialist party-state in the world, Hong Kong’s two decades of experience with China’s “one country, two systems” governing model illustrates how fraught the challenges facing a subnational constitution could be. Yet further reflection upon how Hong Kong can preserve its liberal constitutionalist status suggests creative solutions to those challenges.

In 2018, the nature of Israel as a state received further elaboration in law adopted by Israel’s Knesset titled Israel –The Nation State of the Jewish People. This law declared Israel to be “the nation state of the Jewish People.” The law was designated as a “basic law,” meaning that it held constitutional rank. The law declared “the development of Jewish settlement as a national value.” The law was criticized for excluding Israel’s Arab population from the country’s political constituency by declaring that Israel was the nation state of the Jewish people only. The law was also criticized for declaring settlement as a “national value,” since settlement in occupied territory is prohibited by international humanitarian law.

The Introduction posits that Hong Kong cultural identity is intertwined with law, and traces the historical development of how this came to be so. Drawing on the notion of the politics of disappearance by cultural theorist Ackbar Abbas, it argues that the major constitutional controversies in the city threaten, or are perceived to threaten, this sense of selfhood. It further argues that through its diverse modes of representation, film provides a forum for the visual expression of identity, and registers the ways in which it reacts to these controversies.

In Chapter 2, I situate Johnnie To’s popular comedy, Justice, My Foot! (1992 審死官), which revolves around a lawyer defending a woman falsely accused of murdering her husband, in light of the drafting of the Basic Law and passage of the Bill of Rights in early-1990s Hong Kong. I argue that To’s film, which appeared at cinemas a mere three years after the 1989 Tiananmen Square crackdown in Beijing, can be approached as a screening of a nightmare scenario on the minds of many viewers at the time: A Hong Kong-style lawyer trying to defend the innocent and maintain justice in a Chinese-style legal system that disregards basic human rights and that is plagued by corruption and nepotism. I will then explore the function of humor in the film to show how Justice, My Foot! repackages anxieties about the sinicization of law into a marketable cultural product for mass consumption.

With the founding of the two German states in 1949, the period of political transition in postwar Germany came to an end. Nazi trials, however, continued in both West and East Germany. The Epilogue examines how policy toward Nazi prosecutions changed with independence in both the Federal Republic and German Democratic Republic. West Germany pursued a policy of rehabilitation for most former Nazis, coupled with the further prosecution of small numbers of ‘intolerable” Nazi atrocities. This was part of a strategy of “democratization via integration.” Meanwhile, East German continued a more robust prosecution program, even if the number of trials was still substantially smaller than during the occupation period. The epilogue also recapitulates the argument of the book. Worse trials in the West helped inadvertently to democratize the emerging Federal Republic of Germany, while better trials in the East contributed to the consolidation of a new, Stalinist dictatorship. Transitional justice in Germany thus produced counter-intuitive results at odds with the prevailing wisdom among scholars and activists.

This chapter examines Hong Kong perspectives on the rule of law and argues that concern with maintaining the rule of law has been at the heart of the battle over political reform. In these political clashes a rather hardline Beijing approach to rule by law is juxtaposed against the very liberal Hong Kong perspective developed under British rule. As deLisle points out inand Cullen and Campbell elaborate on, there is a wide gap between Hong Kong and Beijing on the rule of law. With Beijing’s perceived lack of the rule of law, Hong Kongers have generally viewed the promised high degree of autonomy and noninterference by the central government as crucial to maintaining the rule of law and avoiding arbitrary rule in Hong Kong’s separate system. Such hands-off approach was clearly understood in formulating the “one country, two systems” model for Hong Kong under the Sino-British Joint Declaration and the Basic Law, though application has fallen short. Starting with the historical commitments, this chapter critically examines the series of official reports and decisions surrounding the 2014 clashes over political reform in Hong Kong and considers their relevance to the rule-of-law debate.

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the Israeli Supreme Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The findings expose that, contrary to the common conception, it is overwhelmingly common for measures to fail the analysis prior to the final stage, including the suitability stage and especially the necessity stage. The justification of the invalidation of measures is typically made up of a combination of disproportional harm relative to benefit together with additional flaws in the policy, as reflected by the other subtests of the doctrine. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the German Federal Constitutional Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The findings reinforce the existing perception that strict proportionality is the central stage of the proportionality analysis: it is the stage responsible for the vast majority of failures, and even in the rare cases of failure at the worthy purpose, suitability, or necessity stages, half of those cases continue to the final stage. The findings do demonstrate several forms of deviations in practice from the standard sequential model of proportionality. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.

Where do lawyers look to when they wish to ascertain what the law is on a particular matter? This chapter goes over the various sources of law in Hong Kong. It starts at the top with the Basic Law, which is sometimes referred to as the ‘mini-constitution’ of Hong Kong. It covers the five interpretations of the Basic Law by the Standing Committee of National People’s Congress (NPCSC). It then takes readers through legislation, including primary and secondary legislation, and through the different parts of a statue. Case law is then examined, along with the different parts of a reported case, highlighting the parts of a judgment that constitute law. Lastly, Chinese customary law and national laws of the People’s Republic of China that are applied in Hong Kong are discussed.

This chapter provides an overview of the system of governance in the Hong Kong Special Administrative Region (HKSAR). It introduces readers to the fundamental concepts of ‘one country, two systems’ and ‘high degree of autonomy’ under the Basic Law, which provide the framework for the allocation and exercise of responsibilities over Hong Kong by the central authorities and the Hong Kong government. Within the sphere of Hong Kong’s autonomy, the Basic Law provides for the exercise of governmental powers by three arms of government: the executive, the legislature and the judiciary. The powers and functions of these three arms are outlined in this chapter, together with discussion of the doctrine of ‘separation of powers’.

The first chapter outlines the aims of the book, which is to provide an introduction to the Hong Kong legal system especially for first-year law students, but also for students of other disciplines, and practitioners and scholars from other jurisdictions who are looking for a comprehensive and user-friendly overview of Hong Kong’s legal system. It also highlights the key elements of that system, discussing its rules and principles, namely the rule of law, separation of powers and the independence of the judiciary, as well as legal institutions and legal personnel. This chapter traces the historical development of Hong Kong’s legal system, from the acquisition of Hong Kong by the British and the importation of English law (including common law) into colonial Hong Kong to the transfer of sovereignty of Hong Kong to the People’s Republic of China (PRC) in 1997 and the present-day legal framework under ‘one country, two systems’.