A Typography of Constitutional Arguments in Hong Kong

Abstract

This article explores how the Court of Final Appeal has generally appealed to five forms of constitutional arguments when interpreting the Basic Law: (1) textual arguments, (2) historical arguments, (3) purposive arguments, (4) precedential arguments and (5) consequentialist arguments. The article also argues that no constitutional theory can rely only on one particular unitary interpretive methodology (whether that exclusive source may be the text, history or precedents of the Basic Law) to resolve all constitutional disputes. After all, even within each modality or type of constitutional argument, there may be “intra-modal” conflicts, such that there can still be reasonable disagreements as to what the correct answer within that interpretive mode is. The article concludes by arguing that various types of constitutional arguments may be substantially interdependent and interrelated, such that they can dovetail with one another to reach a reasonably coherent and defensible legal result.