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.
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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.