Vol. 20 No. 7 (July, 2010) pp.300-302
THE COMMON LAW IN TWO VOICES: LANGUAGES, LAW AND THE POST-COLONIAL PREDICAMENT IN HONG KONG, by Kwai Hang Ng. Stanford, California: Stanford University Press, 2009. 352pp. Cloth. $70.00. ISBN: 9780804761642. Paper. $24.95. ISBN: 9780804761659. E-book. $24.95. ISBN: 9780804772358.
Reviewed by Marie-Eve Reny, Department of Political Science, University of Toronto. Email: marieeve.reny [at] utoronto.ca.
In THE COMMON LAW IN TWO VOICES, Kwai Hang Ng explores the ways in which events in courtrooms in English vary in how they are conducted from those in Cantonese. Following the retrocession of Hong Kong from Britain to Mainland China in 1997, common law in Hong Kong, which since the beginning of the colonial era had been highly formalistic and dominated by the use of English, could now be practiced in Cantonese by locals (p.25). Moving beyond the idea of “anti-consequential morality in law,” Ng uses Weber’s concept of formalism to define legal formalism. It is a system based on “inward-turning rationality,” in which “rules can be internally interpreted with reference to other rules of the system [. . .], and [where] rules are logically related to each other” (p.34). Ng argues that Hong Kong’s system of legal bilingualism today means much more than the mere “introduction of a second language in the legal system” (p.27). The author maintains that the latter has undermined formalism in the common law of Hong Kong (p.27), as the use of Cantonese has enabled forms of interactions between litigants and magistrates which are hard to conceive in English-speaking courtrooms, including acts of defiance on the part of litigants, as well as animated exchanges. While in English trials indirect answers to questions “are readily sanctioned by judges and lawyers” (p.100), the use of Cantonese during trials sets the stage for a less formal atmosphere and less distant though sometimes tense exchanges between magistrates and litigants. The author also suggests that the ways in which questions are often asked in Cantonese courtrooms are not propitious to clearcut ‘yes’ or ‘no’ answers as expected in a legal formalistic system. Similarly, while facts established in Cantonese-speaking courtrooms tend to be “moral,” those in English courtrooms are usually “legal” (p.49). In light of the incompatibility of Cantonese with legal formalism, English remains the most preferred tool for professional communication among Hong Kong magistrates. Moreover, in a system where most local magistrates work and speak about law in English, the latter idiom has represented “a language of outreach and shelter” (p.30) in light of a strengthened Mainland Chinese influence in Hong Kong, following 1997. Ng however emphasizes that the persistent predominance of English in the legal system comes at a price, given that most Hong Kongers’ mother tongue is Cantonese.
The book constitutes a significant contribution in two ways. First, it suggests that the same institutional rules [*301] may vary greatly in their effectiveness when applied in different language settings (p.79). The use of different languages may come with distinctive ways of understanding social interaction in a legal context, thereby influencing the extent to which individuals use available legal resources or conform with expected legal rituals or procedures. Ng’s analysis leaves the door open to important questions which other social science literatures ought to address. For instance, if language impacts legal procedures in courtrooms and legal decision, to what extent could it not also impact how political decisions are made, or policy-making? Moreover, in societies that are bilingual or multilingual, has the use of more than one official language influenced how formal rules have been implemented across society?
Second, the analysis indirectly suggests that institutions that are profoundly disconnected from society have the ability to last and are uneasy to change. To this day, and despite the re-integration of Hong Kong within Mainland China in 1997, the current legal system inherited from British colonialism still operates mainly in English, a language considered to be inappropriate for communication among the majority of the Hong Kong population. Yet, despite the latter gap between institutions and society, there are no signs that the main language used in the legal system will change to better adapt to society’s needs and identity.
Despite the book’s several strengths, the analysis could have been improved on three levels.
First, it starts from a puzzle according to which court trials in English are conducted very differently from those in Cantonese, despite their happening in the same courtrooms, and provides a rich account of how events in the courtroom may vary in each circumstance. However, Ng does not elaborate on why the introduction of Cantonese as a legal language may make the atmosphere in courtrooms different from that in English-speaking trials. Doing so would have required elaborating on both the reasons why the use of Cantonese may make litigants and magistrates more prone to a casual interaction, and why the use of English is likely to secure a more distant exchange. The author says that the majority of observed English court trials required interpretation services (p.124), suggesting that most litigants were not comfortable enough in English to express themselves clearly in the language. Having to concentrate on speaking one’s second or third language in an intimidating context such as a courtroom could make litigants feel more ‘distant’ from their own local magistrates and less inclined to arguing. Conversely, to what extent does the mere fact of speaking one’s mother-tongue not facilitate the salience of witnesses and magistrates’ cross-cutting identities in court trials, thereby contributing to making court trials more emotional and tense? If one assumes that speaking one’s mother tongue allows individuals to better express their views and act upon their potentially multiple identities, it is possible that the use of Cantonese in court trials sets the stage for a more casual atmosphere, and facilitates animated exchanges, as well as potential rivalries between magistrates and litigants (p.7). Additionally, to what extent could class dynamics not also [*302] influence litigants-magistrates exchanges in the courtroom?
Second, in order to assess whether the use of English in a courtroom is inherently prone to a certain level of formalism, one would have to compare the atmosphere between litigants and magistrates in English-speaking courtrooms in Hong Kong with that of English-speaking courtrooms in other countries where common law is practiced. Can we conceive of English-speaking courtrooms in settings where common law is practiced where litigant-magistrate exchanges are more casual than the ones depicted in Ng’s analysis? Can a single language be associated with varying forms of social practice or behaviour? Conversely, in attempting to explain why exchanges in Cantonese courtrooms are more animated than in English ones, Ng emphasizes that “there is no such thing as colloquial English in Hong Kong” (p.95), and that it is in Cantonese that locals “chat, tease, joke, curse, argue and mourn” (p.61). The latter facts however do not exclude the possibility that Cantonese be used for more formal purposes, and for more ‘serious’ conversations. By excluding this possibility, the analysis could fall in the trap of essentialism, namely portraying a language as inherently prone to emphasizing particular discussion topics or ways of interacting socially.
Finally, in order to provide a more convincing explanation for the discontinuities of legal bilingualism in Hong Kong, the author could have brought a comparative element to the analysis. For instance, are there post-colonial settings where the local vernacular has been better adapted to similar kinds of legal institutions? Or is legal bilingualism also prone to less effectiveness in courtrooms in other post-colonial or bilingual societies, and if not, why?
Kwai Hang Ng’s book remains an important empirical and theoretical contribution to legal sociology and language politics. It constitutes an important step towards greater research on the impact of language on human behaviour in legal settings and beyond.
© Copyright 2010 by the author, Marie-Eve Reny.