In contemporary society, the function of legal systems extends far beyond traditional dispute resolution to encompass various dimensions such as public governance, technological development, and social risk management. In recent years, Hong Kong society has frequently compared the differences between Common Law and Civil Law. However, relying solely on historical evolution or isolated judicial cases to assess their relative merits may not fully capture the complex challenges facing modern legal systems. This article argues that, beyond focusing on distinctions between legal families, greater consideration should be given to how legislators and administrative authorities utilize legal systems to advance public interest within a constantly changing environment.

In his article "All Laws Should Be Based on Public Interest" (Ming Pao, December 9, 2025), Professor Ho Lok-sang provides an in-depth analysis of the institutional characteristics of the two major legal families. He focuses on the role of the judicial system in public interest, including procedural safeguards in adversarial litigation, the function of expert witnesses, and the institutional significance of excluding illegally obtained evidence. While respecting his viewpoint, the author of this article posits that the operation of modern rule of law is no longer confined to the judicial level. Amidst technological innovation, public health crises, and rapidly evolving social risks, legislation and administration often wield more direct influence in shaping institutions. Although courts gradually consolidate the concept of public interest through case law, a more pressing task is whether legislators can proactively construct forward-looking regulatory frameworks to address emerging issues and provide institutional stability.

Analyzed from the perspective of jurisprudence, "public interest" must neither be reduced to an abstract slogan nor treated as an immutable dogma. Through observing H. L. A. Hart's "rule of recognition," public interest can become a legally effective principle not because of its moral appeal but based on how it is institutionalized into identifiable and applicable legal reasons. This includes clear enabling provisions, defined thresholds for application, procedural safeguards, and justifications subject to judicial scrutiny. Only through institutionalized normative design can public interest maintain the predictability and consistency required by the rule of law, avoiding arbitrary invocation by administrative power or policy rhetoric.

Furthermore, from Ronald Dworkin's conceptual distinction between "rules" and "principles," public interest aligns more closely with a legal principle that functions through balancing, rather than a rule that directly determines individual cases. It must be considered alongside other principles such as fundamental rights, procedural justice, and equal treatment, achieving a reasonable balance under the requirement of integrity. This implies that when legislators address issues like technological risks, data governance, and public safety, they should not merely pursue policy efficiency. They also need to construct a legitimate proportionality framework and provide mechanisms for transparency, public participation, and remedies. This ensures that "public interest" becomes a normative basis that can withstand rational scrutiny, rather than a unidirectional, closed justification for governance. On this foundation, the judiciary ensures that public interest does not erode the bedrock of the rule of law and fundamental rights.

Understanding how public interest is embedded within institutions aids in comprehending the practical operational differences between Common Law and Civil Law more holistically. Common Law emphasizes procedural detail and principles refined through case accumulation, while Civil Law offers the clarity and structure of codified statutes. Reducing them to a simple dichotomy risk overlooking their complementarity across different policy domains: the commercial sphere often benefits from the flexibility and international compatibility of Common Law, whereas public health or technological regulation frequently relies more on clear statutory frameworks to enable effective administrative execution. The responsibility of legislators is not to choose between the two major legal families, but to adjust the application of legal tools according to the policy scope and societal needs. From this perspective, the public interest Professor Ho focuses on points to a broader question: in a highly specialized and technological society, which public values should be progressively clarified by the judiciary, and which must be defined in advance by legislation? Placing the entire burden of balancing public interest on the courts not only risks overburdening the judiciary but may also make the direction of public policy overly dependent on the evolutionary pace of individual cases. Conversely, clearly establishing policy objectives, risk tolerance boundaries, and supporting mechanisms through the legislative process can help the judiciary deliver more consistent and predictable rulings within a defined framework.

Although precedent holds profound influence within the Common Law system, the pace of social change often outstrips the judiciary's ability to develop rules incrementally through cases. Relying entirely on judicial development of rules may leave society without timely institutional protection. Therefore, the importance of the legislative process becomes even more prominent. A clear legal framework enables judicial bodies to maintain consistency in interpreting the law and provides society with clear behavioral guidance, reducing governance uncertainty.

Hong Kong's legal environment is often described as "complex," partly because it is the only common law jurisdiction operating in both English and Chinese, and an increasing number of cases involving Chinese Mainland factors (especially commercial cases) are entering the judicial process. However, this complexity is not a disadvantage; rather, it highlights the system's flexibility and capacity to absorb diverse influences. As a common law jurisdiction, Hong Kong retains the flexibility and international connectivity advantages of Common Law in the commercial sphere, while interacting with other legal systems in public policy domains and adopting more structured regulatory frameworks when necessary. This is not contradictory but a natural adaptive process of the system responding to changes in the social and policy environment.

In conclusion, the purpose of a legal system is not to cling to tradition but to respond effectively to societal needs. Whether Common Law or Civil Law, their ultimate value lies in their ability to promote the public interest. Faced with emerging issues, the collaboration between legislature and judiciary, the clarity of legal frameworks, and the adaptive capacity of institutions warrant greater attention than the classification of legal families itself. Hong Kong's institutional flexibility thus offers greater possibilities for future legal development.

By Dr. Philip Wong

Deputy Director of STEAM Education and Research Centre, Lingnan University

Mr. Xiongyi Guo

Assistant Research Officer of Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University

The views do not necessarily reflect those of Orange News.

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