The lawlessness of law and order

Critical legal theorists have long realized that the law has often been given a privileged position without being explicitly defended in theoretical terms. In practical terms, many who work with the law realize that no matter how it adheres to black-letter doctrines, the law is subject to forms of governance, technical discourses of the legal science, political and economic imperatives, social consciousness, culture wars, and so on. In this essay, I focus on the fact that the civil disobedience and unrest seen in the unprecedented protest movement of Hong Kong in 2019 challenged government’s repression by raising important legal questions. Through social activism, the protest movement in fact raised some serious questions about the law’s lawfulness. To unpack this, I take a discursive approach through the lens of critical legal realism, which views the law as an ambiguous whole constituted by a variety of elements appearing between the two poles that anchor the very meaning of law, namely “lawfulness” on one end of the pole and “lawlessness” on the other. To help us answer some of the tough questions about citizen disobedience and the seeming loss of integrity of the law and the police in the Hong Kong protest movement, it is argued that we scrutinize the “continuum of the law” in relation to two vital elements in human rights practice, namely legal-political standards and the legality of police violence. Copyright © 2020 the authors.