Henry Litton’s op-ed piece attacking Hong Kong judges for failing to conform to our new constitutional realities has caused something of a stir in the legal community. So I shall leave the legal points raised to them. A hostile view here.
What surprised me was the paragraph in which Mr Litton considered what he called “the big picture”. It goes like this: “For hundreds of years, the Middle Kingdom was the undisputed economic and cultural centre of the world. It fell into decay during the latter days of the Qing dynasty but is now resurrecting, through much agony and hardship, its central role. It is also re-establishing, through the Belt and Road Initiative, the ancient trade connections between the Middle Kingdom and the other great civilisations, this time on a much wider scale.”
This is a big picture all right, but I am not sure that it is really the sort of thing which ought to be going through judges’ heads while they consider applications for judicial review.
Apart from its other disadvantages, it has the serious drawback of not being particularly accurate. I am reminded of Napoleon’s comment that “History is a series of lies about which we agree.”
For most of China’s history there was, after all, not really a world to be the centre of. Great empires rose and fell in Africa and America unnoticed on the Eurasian continent and unconscious of the rest of the world. There was a flourishing trade, at times, along the Silk Road but China was one end of it, not the centre.
Modern historians assert that China in 1500 was the most prosperous and cultured civilisation in a world which was becoming aware of itself. Europe was divided and quarrelsome in a most undignified way.
But the ensuing two centuries suggest that perhaps a decentralised hubbub was more effective than a monolithic empire. While Europeans took over large swathes of the world the Chinese empire succumbed to a Manchu invasion and became part of someone else’s empire, which it remained for 400 years.
The idea that there is some natural gravitational force which dictates that China’s “natural” position is at the centre of anything is deeply unhistorical.
I have lately been reading Simon Winder’s entertaining history of Lotharingia. This antique state dates back to Charlemagne’s grandchildren, who agreed to divide his empire into three pieces. One piece in the West corresponded roughly to what is now France. A second piece in the east corresponded roughly to what is now Germany.
The third piece was a belt, starting in Holland and sweeping south down both banks of the Rhine to terminate in the northern part of what is now Switzerland. This was an awkward construction and its history consisted largely of attempts to make something of it, hampered by attempts by the two obvious contenders to encroach on it. The region is particularly rich in historic battlefields.
The moral of this story is that no political entity is eternal and no frontier should be regarded as fixed beyond amendment.
One of the benefits of YouTube is that you can find animations which show the changing political landscape over time. European ones (specimen here) are fun if you know your history. And you get the same message. The frontiers in 2020 are only distantly related even to the frontiers in 1914. Whole countries appear and disappear.
Similar efforts are offered for Asia, specimen here. The area now occupied by China is not the same as the area occupied by any of the previous Chinas. The triumphant China of 1500, for example, did not include Xinjiang, Tibet or Taiwan, which may inspire a certain nostalgia in those places. Dynasties came and went, leaving gaps filled by a patchwork of smaller states. The geographically largest dynasties were not necessarily the longest-lasting ones.
Countries do not, as Mr Litton puts it, “fall into decay”. They confront challenges, with varying degrees of success. Some of the challenges are natural — floods, earthquakes — but the most tricky ones involve relations with other nations. Luck plays an important role.
Well, no doubt the willingness of at least one senior Hong Kong judge to trot out the party line on Chinese history will go down well in Beijing. But I fear Mr Litton is chasing a mirage if he thinks Hong Kong judges can be “trusted” by Beijing without ceasing for all practical purposes to be judges.
The central government knows nothing of law, common or otherwise. Its requirement for trustworthy judges is that they should find in favour of the Party, whatever the details of the case.
Hong Kong judges are in the same bind as the Chief Executive. If they are liked and admired in Hong Kong, they will for that very reason be distrusted in Beijing. If they are trusted in Beijing they will for that very reason be regarded with scorn and contempt in Hong Kong.
This dilemma is the joke which history has played on them and Mr Litton’s preferred solution is just to impale himself vigorously on one horn of it.
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