To those who grew up with legalism, part 1

Law has been so vandalised in Singapore that an entire generation has grown up without knowing what it is. This struck me when I found myself speaking with two young adults who couldn’t grasp what I meant when I said, “Governments can act unlawfully, even legislation can be unlawful.”

I don’t know how typical they are, but there is little to show me that they are not. I don’t intend to be critical of them because I can understand how difficult it is to escape the political environment we have grown up in. Instead, they were like reminders to me not to assume that Singaporeans see law the way I see it.

What this essay and its follow-up hope to do is to explore what “law” should mean, in its nobler sense.

In my view, the two young women held a rather legalistic understanding of what law is, and they tended to see the government as a kind of sovereign that promulgates laws in a monarchical way. Laws to them, if I may reduce what I gathered from our conversation to a few simple words, are rules made by the government and applied to the people. To the extent that laws apply to actions of the government, it’s a means of formalising and regularising what they do.  That being the case, it was difficult for them to fathom what I meant by governments acting unlawfully, and parliaments passing unlawful legislation.

How can that be? they asked.  If the government and parliament are makers of law, how can they be in breach of law, except in minor administrative ways?

The key problem is that our understanding of law has been warped by a half-century of censorship that has denied us a more informed discussion of the role of law. I feel a need to correct this otherwise many different discussions about other public issues will be hobbled by an overly narrow conception of law.

* * * * *

Law is a living body of justiciable rules meant to govern the way a society operates and the ways individuals relate to each other. Society also has customary rules which are not justiciable; these are not laws. Law serves a number of different purposes, but mainly it’s for order, justice and to an extent, morality (but many moral rules, e.g. spousal fidelity, are considered non-justiciable). It’s a living body of rules, meaning it evolves in keeping with society’s understanding of what order, justice, etc, ought to be.

So who makes law? Whatever the legal tradition — and there have been many from different civilisations — law springs from a combination of the textual and the judicial. The balance between the two may differ from one tradition to another. The textual typically comes from the executive or legislative: it could be a monarch promulgating a decree, or a legislature passing statutes. It could be a group of religious scholars in theocratic societies. It could even be the population as a whole acting through a referendum.

But since textual codes can never be comprehensive, covering all situations and foreseeing all circumstances, or one part of the code may conflict with another, there is always a place for the judicial, and in some places, jury. Judges are supposed to be the fount of wisdom for a society. Through their deliberations, they resolve conflicts including  (a) conflicts between parties over facts, (b) disagreements over process,  (c) over the meaning of a text, (d) conflicts between differing parts of the code and (e) between what’s stated in the codes and new circumstances or new knowledge. In their deliberations and rulings, judges are expected to be guided by the grand purposes of law, and therefore highly developed legal systems give them great freedom in their interpretive function.

Take (e). Suppose there exists a 700-year-old law that says wives who disobey their husbands should be burned at the stake for they are personifications of evil. And suppose too that in these seven centuries, nobody has taken the trouble to repeal this enactment.  Should a case be brought under such a law today, we would expect the judge to rule that in keeping with our modern understanding of the equality of genders within and without marriage and our modern respect for life, such a law is just not on. To apply the letter of the law today violates our modern understanding of public order, justice and/or morality, so even if the provision is extant, that law is just . . .  unlawful.

However, judges try to be prudent and it is not considered wise to come up with whole new interpretations out of the blue. They try their best to find some newer text or a clause in an hierarchically superior text (e.g. constitutional documents) which better express modern wisdom. And if the facts support the modern/hierarchically superior wisdom better than the old commandment, they resolve the conflict in favour of the former.

Singaporeans may find this conception of law too fuzzy for comfort. Raised as many of us have been within a culture of being told what to do, the uncertainty, relativity and mutability of this higher conception of law leaves us uneasy. However, it is precisely because of these characteristics that justice is best served, taking into account relevant circumstances and new knowledge, whereas uncritically accepting all acts of the legislature as absolutely the last word on anything is to bind ourselves to rules for the sake of rules.

In part 2, I wish to talk about two cases in America to illustrate how law operates over text.

9 Responses to “To those who grew up with legalism, part 1”


  1. 1 KiWeTO 15 August 2010 at 00:29

    One thing that I feel that Lawmakers throughout the ages have not thought through is that of making laws finite.

    Laws that need reviewing every x number of years, would reduce the opportunity for amoral governments to use and abuse.

    a 700 year old law would not exist, since it would at best need reviewing after every X.

    And they wonder why laws always seem to lag economic reality.

    We still punish white collar crime way more leniently than robbery, insofar as as the scale of the damage (to a single victim or to a mass of victims.)

    Laws need shelf lives, like governments and any other thing human-built and organized. In that sense, the USofA has the advantage vis-a-vis parlimentarian systems because it “resets” its government’s philosophy with the passing of each 8 year cycle.

    E.o.M.

  2. 2 abao 16 August 2010 at 00:12

    Rules are not law but law is a set of rules meant to provide support for the people.

  3. 3 bk 16 August 2010 at 14:27

    Hi Alex you could have simply just told these guys that everything that Hitler did to his opponents and to the Jews in Germany and Europe during his reign was legal..everything that the other side did was illegal simply because he enacted laws that legalise the persecution and murder of Jews and all his political opponents. Simply Put … correct?

  4. 4 yawningbread 17 August 2010 at 09:55

    bk – Indeed I could have, I should have thought of it!

    But you know what, a little part of me is also aware, with disappointment, that many singaporeans have little knowledge of history… so maybe the reference to the Nazi era might make little sense to them?

  5. 5 Anonymous 17 August 2010 at 10:18

    Alex,

    “mutability” is an interesting concept.
    But the customs/rules of many societies in particular Asian societies are typically immutable or fossilized – like stoning people to death, widow burning, avoidance of certain food and death by hanging.

    Would request that you focus your essay on what’s relevant/related to our context. For example, the sort of justice that many Singaporeans would be familiar with – that of Justice Pao.

    The eastern and western minds operates quite differently – I happened to flip through a book written by Richard Nesbitt, A Geography Of Thought, in which he related studies done which elicited a clear difference between an easterner’s and westerner’s way of looking at the same situation. It seems that easterners and westerners focus on different things when given the same facts of real incidents. The examples studied were the multiple killing of several people by one (aggrieved) person who immediately also killed himself after the deed – in an eastern and western context, respectively.

  6. 6 George 17 August 2010 at 10:23

    Alex,

    “mutability” is an interesting concept.
    But the customs/rules of many societies in particular Asian societies are typically immutable or fossilized – like stoning people to death, widow burning, avoidance of certain food and death by hanging.

    Would request that you focus your essay on what’s relevant/related to our context. For example, the sort of justice that many Singaporeans would be familiar with – that of Justice Pao.

    The eastern and western minds operate quite differently – I happened to flip through a book written by Richard Nesbitt, A Geography Of Thought, in which he related studies done which elicited a clear difference between an easterner’s and westerner’s way of looking at the same situation. It seems that easterners and westerners focus on different things when given the same facts of real incidents. The examples studied were the multiple killing of several people by one (aggrieved) person who immediately also killed himself after the deed – in an eastern and western context, respectively.

  7. 7 a young adult 23 August 2010 at 02:25

    @KiWeTo
    Making laws finite or open to repeal undermine the Rule of Law itself and legal tradition. Some laws have existed for hundreds of years in obscurity and have gone decidedly obsolete without need for repeal.

    Insofar as my familiarity with common law(or the UK legal system and thus Singapore’s adoption of it’s likeness)extends, the elected government is bound by the rule of law and no parliament can change the law without approval from an independent/non-elected judiciary, such as UK’s former House of Lords/present Supreme Court. What is notable is the degree of autonomy of the judiciary.

    Already laws are constantly written, revised and repealed, but lawmaking is fundamentally different from policymaking, which implements at will to economic realities. Imagine this – If the government abolishes the death penalty to the detriment of society(e.g. murder rates rise) and the next government elected into power reinstates capital punishment, the law is essentially a farcical tool that bends to the government or judiciary’s will.

    Significant weight is attached to the word of the law and that is the main reason society abides. It is why laws take years of thought, time and effort to be written, and much longer to be repealed. Yet it doesn’t mean lobbying for change against monolithic laws are worthless or that we should yield to apathy.

    Simply observe how marital rape is still legal in Singapore, and how is was legal in many developed countries until the last 25 years. I signed that petition and hoped for change, but did not expect a kneejerk reaction. The effort of the activists has been worth it regardless of whether it is repealed, as it provided Singaporeans with much food for thought.

  8. 8 Ivan 25 August 2010 at 11:27

    I think it would be more correct to say that “Governments can act unjustly, and that some legislation (or laws) could be unjust.”

  9. 9 Sha (on behalf of friend) 25 August 2010 at 11:48

    “The procedures in both his examples are enshrined in US laws and show the legal procedures being followed to determine whether there are inconsistencies in the law.
    Singapore’s Court of Appeal can hear cases that show legislation to be in co…nflict with the Constitution, with common law principles, or with other laws. Until someone brings forward a case for consideration to them and they declare such a conflict, legislation stands as lawful (ie laws cannot be unlawful until declared as such by the Court which is the point he forgets).
    The particular legislation he is probably concerned with I don’t think can be struck down by the Court of Appeal as I don’t think it has any inconsistencies with the rest of the Singapore legal system. It is therefore lawful. That specific law therefore can only be removed (made unlawful) by Act of Parliament, not by the Courts.” – as shared with a friend on facebook upon reading your blog link on my page.

    sha


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