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Can law change nature?

On May 14 the Court of Final Appeal ruled the current laws governing marriage in Hong Kong are unconstitutional, as they bar transsexuals from tying the knot.

Although some media in Hong Kong have touted this decision as a step in the right direction, it could also be argued that it may be a step backwards.

Kemel Justice Bokhary was quoted in the media as saying that the decision appeals to a human right, as one of the most sacred functions of the legal system is to protect the rights of minorities.

“What is involved is a constitutionally guaranteed human right. One of the functions—perhaps by far the most important one—of constitutionally guaranteed human rights is to protect minorities,” the South China Morning Post quoted Bokhary as saying in an editorial entitled, A step in the right direction, on May 15.

While not denying that the protection of the rights of minorities is indeed a sacred function of a constitutionally guaranteed law system, it is also fair to argue it is not its only sacred function.

The dissenting judge on the Court of Final Appeal bench, Patrick Justice Chan Siu-oi, pointed out that the decision implies a radical change to the traditional concept of marriage.

While we live in an age where traditional values are all up for scrutiny, this does not mean they are necessarily wrong and nor does it mean that they are necessarily right.

The question that Chan is implying is whether there can be a right to marry if the capacity for marriage does not exist and to proclaim the right before examining the capacity could leave the decision offending the law of human nature rather than protecting the right of a minority group.

While the editorial in the South China Morning Post appeals to “far-reaching changes in modern society” undergone by “the nature of marriage as a social institution,” it could also be argued that actually it is the perception of marriage rather than the nature of marriage that has changed.

Shimon Cowen, in Politics and Universal Ethics, refers to an opinion put forward by Murray Gleeson, the former chief justice of Australia, that purports rights are anchored in values and that a right is as good or as true as the value it represents (pp. 14-15).

Constitutional law did not invent marriage, but codified practices for ordering behaviour in society. Marriage, recognised as a union of man and woman, pre-dates the existence of the state and has been traditionally accepted as including the possibility of procreation as an essential, although not exclusive component.

Legal systems cannot change the nature of things. Arguably, a court could rule a change in the law of gravity, but it would not alter its nature—leaving people wondering to what end.

But it would certainly create problems in terms of what society should teach young people.

If the May 14 decision only reflects a change in perception of marriage, the question of how society should educate young people on marriage is a valid one. If it is a perception that does not represent a reality, are the rights that go with it real or only perceived, subject to the whim of public opinion?


The decision appears to close off rather than promote discussion in society on the issue. It may even serve to stifle it. JiM