LEGALISM AND STRATEGIC JUDICIAL DECISION-MAKING IN HONG KONG

Johannes Chan is renowned for espousing and defending a legalist view of the judicial role. This article seeks to contrast his legalist theory of judicial behav-iour with the strategic school. Using five iconic case studies from the Court of Final Appeal, the article explains why as a descriptive claim, the legalist school does not reflect actual judicial practice, especially for the disputes that matter. It further argues why, as a normative claim, this legalist account may not be the wisest option for judges who seek to defend the rule of law and their institutional autonomy in Hong Kong. In closing, the article discusses how Chan's thoughts have evolved, with Chan now seemingly accepting that the strategic school, as both descriptive and normative accounts of judicial behaviour in Hong Kong, is at least plausible, especially in light of the city's turn towards authoritarianism. If we read Chan correctly, it would appear that he has over time become, in sub-stance, more sanguine about strategic judicial decision-making than he admits.