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THE COMMON LAW IN TWO VOICES
Language, Law, and the Postcolonial Dilemma in Hong Kong
By Kwai Hang Ng Stanford University Press
Copyright © 2009 Board of Trustees of the Leland Stanford Junior University
All right reserved. ISBN: 978-0-8047-6165-9
Chapter One
The Challenge of Legal Bilingualism in Hong Kong
The englishness of the legal system in Hong Kong holds many things for outsiders to marvel at: the seventeenth-century English wigs and gowns worn by judges and lawyers, the elaborate decorum of lordship and learned friendship, and the stentorian tone of some of the judges. All give the impression that one might well be in an English court.
Excerpt from an English Trial in the Court of First Instance
COUNSEL: if the estate was worth that amount of money, did you know then what your entitlement was worth at the time?
WITNESS: No, I don't know.
COUNSEL: Did you ever find out?
WITNESS: Is it worthwhile to find out?
COUNSEL: Are you saying that if the amount is of that ... if the estate is of that amount, it is not worthwhile to find out how much your entitlement was?
WITNESS: I didn't say that. No, it's just that whether it is worthwhile for me is not because of the financial term, you see, see what I mean.... COUNSEL: Do you understand why you are here? You want a share of your father's estate. Is that correct?
WITNESS:I'm entitled to a share of my father's estate.
COUNSEL: Correct. And are you telling us ...
WITNESS: OK. And also I am seeking for justice
JUDGE: Oh, please. Let's just stick to the facts, all right? This isn't Canada, or Australia, or America. Let's sort of leave aside that kind of, that kind of thing.
WITNESS: OK.
JUDGE: And please try and confine yourself to the facts.
WITNESS: OK.
JUDGE: If he asks you what somebody said, never mind, fair enough. Just tell us if you can remember what the person said, and say what it was. Or if you can't remember what the person said, please just tell us that you can't remember. All right?
WITNESS: Yeah.
JUDGE: Thank you.
COUNSEL: I'm grateful my Lord.
In his popular Rumpole novels, John Mortimer was offering a semirealistic portrayal when he described how the highly successful Phyllida (Trant) Erskine-Brown, whom Rumpole, Mortimer's alter ego, admiringly names the "Portia of our chambers," would occasionally disappear from her chambers for a few weeks to take on a case in Hong Kong. In fact, a barrister from London would feel right at home in a courtroom in Hong Kong. At least, that is, until he stepped into a Cantonese-language one.
Excerpt from a Cantonese Trial in the District Court
WITNESS: Altogether, I gave them altogether. They needed money to spend for the new Year. So I advanced the money.
COUNSEL: Yes.
WITNESS: They needed money to spend for the New Year, they said to me.
COUNSEL: That means you at that time ...
WITNESS: Sometimes there weren't many jobs for people to do. Their lives were very miserable. [sigh] That's so true. Workers didn't have money to spend for the new Year. They needed money to buy their food. Mr. Barrister, do you know?
COUNSEL: I think I do know.
WITNESS: [laugh] What?
COUNSEL: I think I'm more miserable. [laughter from the workers]
WITNESS: So, so [laugh] ...
JUDGE: You two shouldn't keep doing this here ...
COUNSEL: I'm sorry.
WITNESS: [simultaneously] is that right?
The difference between the English and Cantonese courtrooms lies not simply in the switch of language. There is something more fundamental, something at once more elusive and yet gripping that accompanies the switch. In the English trial example, we see that a judge spells out a certain hidden vision of law for the witness, who tells the court that he is looking for justice. The judge's cold, almost Benthamite response to the witness's appeal to justice ("Oh, please") suggests a formalistic vision prevalent among legal professionals in Hong Kong-that law should be taken more as a rules-based adjudicatory machinery than as a freewheeling expression of the society's morality and values. English courtrooms are governed by rules, extensively so in Hong Kong. A typical courtroom exchange between a barrister and a witness is orderly, detached, and impersonal (I discuss this in more detail in Chapter 4). Witnesses are boxed in, both literally and figuratively; their narratives are on a leash; and their replies are strictly confined to direct answers to the questions raised by counsel. Hong Kong, we are told, is not Canada or Australia or America, where law more openly values and incorporates social norms of equity, fairness, and justice in its articulation. As the judge in the example pronounced, a witness should stay with the facts. Of course, as we will see, there is a lot to be said about what counts as the facts in the court of law. On the other hand, in the second example, we are given a brief glimpse of the lively exchanges that are not uncommon in Cantonese courtrooms. The exchange is fluid, jaunty, and, above all, carnivalesque, in the subversive Bakhtinian sense of the term. Witnesses are let loose; they talk more and are often more pugnacious. Freestyle storytelling, intense sparring matches, peppery sarcasm, and slaphappy remarks prevail in this environment, and the trials are louder, noisier, and often edgier. They are also less predictable. Sometimes cross-examination turns into the telling of a life story through the details of one's distant past, and sometimes cross-examination proceeds disarmingly on the surface yet is loaded with piercing insinuations and mischievous smirks; at still other times cross-examination even breaks down into emotional shouting matches, resembling scenes from Cantonese soap operas.
Since the political changeover, as it is called, in 1997, Hong Kong has had a bilingual common law system; Chinese (which often means Cantonese in the oral context and standard modern Chinese in the written context) and English share equal status within the system. In other words, the law stipulates that English and Chinese are to be used, received, understood, and treated as the same. What happens on the ground, that is, in the courts, however, suggests a different picture. Such differences obviously do not go unnoticed by the legal professionals involved in the everyday workings of the law. Barristers who use both languages describe English and Cantonese trials as trials that take place in two different worlds. English trials are, in their words, solemn, respectful, and dignified. Cantonese trials, again in their words, are noisy, mundane, and belittling. One judge I interviewed insisted on playing for me an official tape of a Cantonese trial. Other lawyers and judges advised me to listen to the trials in person, which I did for one year.
But if it is surprising to see litigants act differently when they speak in the different languages of English and Cantonese, it is even more surprising to find out how easy it is for bilingual counsel and even judges to engage in some of the demeaning and trivial Cantonese speech acts that they disdain. This puzzle suggests that language cannot be taken as some sort of tool or medium that is entirely at the actor's disposal. People do not always consciously use language to do what they want, or at least to do it exactly how they want it to be done. This is because the way we use language, or in this case, languages, is thoroughly a social practice-embodied, intuitive, and habitual-and is not entirely transparently accessible for conscious inspection. The metaphor of language as purely a tool assumes a fantastical degree of separation between a people and their language that is simply empirically unwarranted. It is in this sense that one can say that language is constitutive, a theme that I will come back to again and again in this book. Cantonese sets up a different background environment (compared to the English environment) that makes it easier for someone to act in some ways but more difficult to act in other ways. When put this way, it seems that it is all about language and that I am making an argument of linguistic relativism of sorts. What I hope to show, in fact, is that it is not about language per se (its syntax and other structural traits) but about the social practices that language embodies. The contrasting ways that people perform in the English and Cantonese courtrooms demonstrate that language is a socially enduring form. Language remembers; it is something, as Bakhtin puts it, that "has lived its socially charged life" (1981: 193). It is thus made up of a set of living practices that reach back to the past and stretch into the future-practices that are predicated on social sensibilities that define what works and what does not work within an environment. Language is enduring because it is something that cannot be easily changed (even today, language remains one of the most obvious legacies of colonialism for most places that were once colonized); it is also enduring because as a form it transcends individual idiosyncrasies. Its recognizable social character exists sometimes despite the absence of intentions and sometimes in spite of the intentions of the actors. Language gives social performances of different kinds their appropriate voices that people tacitly recognize.
If to start a revolution is to let things get out of control, then the use of Cantonese in the courtrooms of Hong Kong is revolutionary, in more ways than one. In the magistracies of Hong Kong, where Cantonese has become the dominant language, it is not uncommon to find litigants displaying a jutting sense of defiance to the magistrates on the bench, even at the cost of a stiff penalty. Magistrates are called the lackeys of the court; shoes, apparently the only "hard" objects available to a defendant on the dock, are sometimes even thrown at the magistrates. One magistrate working at the busiest magistracy in Hong Kong told me that this had happened to him not once but twice. "Luckily, they both missed," he quipped.
THE SOCIAL CHARACTER OF INSTITUTIONS
What happens in Cantonese and English courtrooms has implications far beyond the scope of a case study of legal bilingualism in a Chinese society. In its broadest formulation, the everyday practice of legal bilingualism presents a puzzle about why a particular institutional form, that is, formalism, in virtually the same external environment in which it has dominated for more than a century, must now struggle for control in that same environment even though only one thing has changed-language. At its root, this anomaly challenges the received wisdom about the nature of institutions among sociologists and questions whether institutions, of which the modern legal system is in many ways the institution par excellence, operate as autonomously as many of us believe. Sociologists are trained to believe in the power of institutions, so much so that many of us often visualize modern society as a constellation of autonomous institutional regimes. We are too enamored of the power of an institution to induce behavioral stability by stipulating that the institution must follow its own rules within its own environment. If an institution could speak, its motto would have to be "This is my house!"
But if the modus operandi of an institution is making and implementing its own rules to run its own house, then how could two languages, English and Cantonese, which are stipulated to be of the same status and to perform the same function within the same system, differ so palpably in situ? How is it that the legal system of Hong Kong, arguably the most formalized legal system in Asia, fails to seal its own rules in its own house?
In this book I try to offer a different picture of the relation between institution and society. The crux of my argument can be stated in a simple form: that the success or failure of formalism as a prevalent institutional form turns on the existing power structure in the wider society. To my mind, the question is not why institutions are autonomous; the question is why some institutions achieve the appearance of autonomy, despite the many facts to the contrary. No institution operates in a social vacuum without recourse to and uninfluenced by the wider society of which it is a part. The situation is doubly tricky for the common law system in Hong Kong, which was established by British colonial officials who were socially remote from the local contexts where the law would be applied and its sanctions imposed.
The difficulty with studying the social foundations of an institutional form is precisely that sociologists are also members of the society they study. We stand inside history. Institutions, successful institutions in particular, acquire an appearance of autonomy. They are social fixtures; they seem to exist forever; and their practices become a given, achieving a status that Pierre Bourdieu (1977: 164) calls doxic. In such cases, it is difficult to find a visible point of reference from which to track the social processes that legitimized the arbitrariness of the institution in the first place. This explains why our sociological common sense is not very good at grasping the deep-rooted connection between institutions and society. We are often blind to it because we have long taken it for granted.
Hong Kong's bilingual common law interests me as a case (as much as, admittedly, I am making a case out of it) because of its liminality, that revelatory moment it offers to befuddled observers to step out of their interpretative rut (Turner 1974). First, in the most obvious sense, it is liminal for its unique bricolage of English and Chinese elements. It is the Anglo-American common law by way of postcolonialism-Cantonese vernacular mixing with English decorum. It is transitional, open, and pregnant with ambiguities. But second, in a more profound sense, liminality refers to a kind of epistemological reflexivity; the case of bilingual common law itself offers an external standpoint from within that allows sociologists to stop going in circles. Its in-between, transitional character allows us to see, yet again, the strange in the familiar. What is crucial about the bilingual common law in Hong Kong is that it is not the result of any coherent ideological campaign or singular political movement. As in so many other things Hong Kong, it is the result of a compromise negotiated by Britain and China, which at different times have owned Hong Kong's sovereignty. It would be hard to dream up from scratch an institutional design that features a common law system with English and Chinese as its languages. Here, in the unique context of Hong Kong, the political necessity of using Chinese is bound up with the legal concern to maintain institutional continuity.
(Continues...)
Excerpted from THE COMMON LAW IN TWO VOICES by Kwai Hang Ng Copyright © 2009 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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