INTRODUCTION

• Citation: (2017) 29 SAcLJ 613
• Author: H P LEE LLB (Singapore), LLM (Malaya), PhD (Monash); Emeritus Professor, Faculty of Law, University of Monash. Jaclyn L NEO LLB (National University of Singapore), LLM (Yale), JSD (Yale); Assistant Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2017
• Date: 01 December 2017

1 It was with great delight that we accepted the invitation from the Honourable Justice Judith Prakash and the Honourable Justice Choo Han Teck, Chair and Member, respectively, of the Publications Committee of the Singapore Academy of Law to be the Co-Guest Editors of a special issue on public law in the Singapore Academy of Law Journal.

2 We have chosen “Public Law Doctrines in Global and Local Dimensions” as the main theme of the special issue. The courts in most jurisdictions play a fundamental role in the oversight of the constitutional validity of legislation enacted by the legislative arm of government, and in the exercise of discretionary powers by the executive arm of government. In Sharp v Wakefield,1 Lord Halsbury said: “[w]hen it is said that something is to be done within the discretion of the authorities [then] that something is to be done according to the rules of reason and justice, not according to private opinion, according to law, and not humour”.2 It is well-acknowledged that the courts, when called upon to adjudicate disputes in the public law arena, have often invoked a number of doctrines or principles to assist their determination of matters before them. Denis Galligan said: “[a]ny official exercising power does so within a framework of legal and political principles, and that these principles are important in the justification and legitimation of decisions”.3 This observation of Galligan is, likewise, applicable to the exercise of lawmaking powers by a parliament. In this special issue, we have invited a number of distinguished scholars to provide exegeses on some of these doctrines. Given size limitation, it is not possible to cover every conceivable doctrine at work in the public law realm. However, the contributions to this special issue have touched on a number of very significant doctrines which are commonly invoked.

3 Black's Law Dictionary defines legal doctrine as “[a] rule, principle, theory, or tenet of the law”.4 It is significant to note that legal doctrine is created judicially. Nonetheless, doctrines are the law's governing rules, as it determines the course of interpretation and development of substantive norms. It is notable that outside of law, “doctrine” is defined as “[a] belief or set of beliefs held and taught by a Church, political party, or other group” [emphasis added].5 When we talk of public law doctrines, this “group” that we are speaking to consists of lawyers, judges and legal academics.

4 The critical embeddedness of doctrines within a group setting should also direct our minds to the locality or universality of that group. Public law doctrines, as part of law, operate within local contexts, shaping the law, legal thinking and legal outcomes. They also operate within global contexts, as they constitute the common language that public lawyers share across different jurisdictions, different constitutional arrangements, and sometimes even across legal traditions.

5 The globalisation of public law doctrines is, in a way, the result of the spread of constitutions and constitutionalism in the last century of state-making. All new states now adopt constitutions partly as a marker of independent statehood and partly to establish new governance structures. As Michel Rosenfeld observed, the internationalisation of constitutional law resulted in “two distinct dimensions”, namely, “a convergence of constitutional norms and values across a multitude of nation-states” and “a migration of such norms and values into transnational orderings encompassing several nation-states and/or non-state actors operating across national borders”.6

6 To the extent that this special issue interrogates the operation of public law doctrines...