From legal pluralism to dual state: evolution of the relationship between the Chinese and Hong Kong legal orders

This paper argues that the relationship between the Chinese and HK legal orders has evolved from a form of legal pluralism found in the EU to a monist but bifurcated system – to a “dual state”, to borrow from Ernst Fraenkel’s theory. Recent events, including China’s imposition of a security law on HK, have consolidated that change. The picture that emerges is that Hong Kong’s common law system has become a dual state enfolded within China’s socialist legal system, which is itself a dual state. The analysis not only enables us to rationalise the developments in the two jurisdictions’ relationship, but has wider theoretical implications: it suggests a way of distinguishing a dual state from a fully liberal legal order, clarifies the relationship between theories of legal order and regime types, distils the similarities and differences between legal pluralism and dual state, and reveals the challenges of and potential for maintaining liberal values in an authoritarian regime.