OF GENERALITY AND SPECIFICITY — A SUGGESTED APPROACH TOWARD THE DEVELOPMENT OF AN AUTOCHTHONOUS SINGAPORE LEGAL SYSTEM

• Date: 01 December 1989
• Author: ANDREW PHANG BOON LEONG
• Published date: 01 December 1989

I

This very brief essay seeks to sketch out as well as consider an approach toward legal analysis and reasoning that would aid in the development of an autochthonous Singapore legal system,1 and that, in any event, would probably also be relevant even in more generalized ad hoc situations. It is assumed that many, if not most, of those involved in the discipline of Singapore law desire the construction of an autochthonous legal system, although the skeptic might find — as just mentioned — the approach suggested here of some utility as well.

One very preliminary, yet extremely important, point must be made right at the outset. What is proposed is an approach or attitude toward the analysis of particular legal concepts and/or scenarios. I am not proposing a particular theoretical framework or model that may be utilized as a basis for analysis of such concepts and /or scenarios.2 In other words, regardless of the theoretical framework(s) adopted, one could, it is submitted, usefully adopt the approach that is mooted in this article. And the utility of this approach, it ought to be noted, is not confined merely to legal academics but, rather, may be applied by legal practitioners as well as by judges.3 This should be self-evident from the approach itself that is now briefly sketched out.

A further preliminary point, however, might not be amiss at the present juncture. It may well be that the approach proposed may be adopted (by analogy) by other disciplines in the humanities and social sciences as well,

though, for a reason that I briefly touch upon later, such an approach might not be as apposite vis-a-vis the so-called ‘hard’ sciences.

II

The approach mooted comprises two different, yet related as well as cumulative, levels of analysis. The first consists in the analysis of the concept or scenario on its own terms. This is the more general level of analysis that focuses upon the concept concerned as a matter of general reasoning and logic. An obvious example would be the critique of a judge’s reasoning in a particular decision that is found to be faulty, because the judge has not, in his judgment, linked the various salient points in a reasoned or logical fashion. In such a situation, the resultant critique could quite plausibly be applied to other countries and cultures that base their laws on a similar system. I have in mind, in particular, countries that were former colonies, such as Singapore, which, incidentally, bases its law on English law.4 Such critiques are thus fairly universalistic in character, and this perhaps furnishes one possible explanation why (in the Singapore context at least) English textbooks in such areas as the law of contract and the law of tort are referred to as a matter of course by local practitioners; such textbooks, in other words, whilst not in themselves premised solely upon logic, provide the necessary grist for the mill of legal logic, given the English legal heritage which (it ought to be pointed out) is not only Singapore’s but that of many other countries as well. It might also be mentioned that this particular mode of analysis is probably more common with regard to ‘conceptual’ subjects such as jurisprudence; but, this observation ought not to be taken too far simply because (if nothing else) the present suggested approach is by no means without qualifications — that I shall deal with later in the present essay. Before that task is undertaken, however, let us briefly consider the second main level of analysis.

This second level is more specific in nature; it consists in an analysis of the particular concept and/or scenario set in its context. In so far as the construction or development of an autochthonous Singapore legal system is concerned, this level of analysis would involve analysis of the concept and/or scenario in the Singapore context. By its very nature, in fact, one might argue that this level of analysis would be probably applicable to the local context only. One of the most obvious inquiries in this regard would be to determine whether or not a certain English rule or principle5 is suitable to the local context. This level of analysis has, in fact and in law, very well-established ‘roots’ indeed — in the application of the concepts of suitability or applicability and modification.6 It might, of course, be argued that these concepts are confined to the (now outmoded) criteria of injustice and oppression to the native population. Whilst this is a persuasive argument, it is not, it is submitted, an insurmountable or unanswerable one. I deal with this possible objection later in this essay — again when considering possible qualifications to the approach suggested in the instant piece. Two difficulties vis-a-vis the present level of analysis, however, might be usefully dealt with immediately — the first being of more practical importance than the second.

The first possible difficulty pertains to the fact that such an approach requires a wider or broader knowledge of the local socio-economic as well as political matrix. Such a requirement poses possible problems simply because legally trained personnel are neither trained nor equipped to cope (in a systematic and coherent fashion) with strands occurring, so to speak, in other disciplines. I think that the task of attempting to transcend strict (some may term it “traditional”) legal boundaries is not insurmountable, though it would, of course, depend upon the individual concerned. In any event, such broader inquiries could in fact serve as both the confluence point as well as springboard for interdisciplinary research.

The second difficulty really centres around the question of relevance. It is arguable that this level of analysis that involves extensive consideration of the local context may be much less significant in so far as the ‘hard’ sciences are concerned. This is a fairly powerful argument inasmuch as the ‘exact’ sciences

are more given to universalistic applicability than concepts from the humanities and social sciences.7 I turn now to a consideration of the possible objections as well as qualifications that arise from this suggested two-level approach.

III

It must be stressed that the suggested approach is not advanced as being either the best or the only approach. Quite the contrary; it is, rather, merely one of several possible approaches. In fact, the two levels set out above must not be applied either rigidly or dogmatically for at least two reasons.

First, as alluded to right at the outset of the instant essay, the focus of discussion here is not upon a theoretical framework or model as such, but rather, an approach or attitude; rigidity and dogmatism must thus be anathema to the very nature of the enterprise itself.

Secondly, it is entirely possible (even probable) that there will often be a blurring of the lines between the two levels themselves. Given that what is suggested here is only an approach, a mere attitude of mind as it were, this is entirely acceptable, even desirable. What is, I submit, useful with regard to the suggested approach is that it may serve as a point of departure, a starting-point, especially in the context of the development of an autochthonous Singapore legal system. Possible criticisms, however, remain, and may take two broad forms.

It might, first, be argued that the suggested approach is not very useful, for the Singapore legal system has been ‘enslaved’ by the ‘dead and heavy hand’ of the English common law — in particular, by the doctrine of judicial precedent in all its various aspects.8 What is clear from the literature, however,

is that the doctrine of judicial precedent in the local context9 has generated a plethora of problems. In so far as the binding effect of decisions of prior predecessor courts of co-ordinate jurisdication is concerned, for example, one writer has suggested that one real possibility is to ‘cut the Gordion Knot cleanly’, whereby no prior decisions would be binding.10 And in so far as the possible binding effect of the decisions of certain courts outside the Singapore hierarchy (primarily English) are concerned, I have similarly suggested that none of the decisions of these ‘foreign’ courts ought to bind the Singapore courts.11 There are, in fact, other (more conceptual, even jurisprudential) reasons why the doctrine of judicial precedent may (with little risk of adverse consequences) be abolished in the Singapore context, but this is outside the scope of the present essay.12 What is clear, however, is the fact that there are persuasive arguments that may be prayed in aid with regard to either the abolition or at least modification of the doctrine itself.

Some critics may, however, go further, and argue that even if the doctrine of judicial precedent were to be done away with, the proposed approach in the instant piece would be of minimal, if any, effect, simply because there is no real scope for the development of an autochthonous Singapore legal system, as evidenced, in the main, by the ‘non-utility’, so to speak, of the concepts of suitability and modification — whatever their theoretical potential might be.13 It may be further argued that the concepts of suitability and modification are not flexible enough ‘instruments’ or ‘tools’ in so far as they relate to more specific and archaic concepts such as injustice and oppression — a point alluded to above. But, the concepts of suitability and modification

ought to be read in the spirit in which they were conceived, i.e., they ought to be utilized to render the received law more suitable and applicable to the local circumstances; in the context of present-day Singapore, for example, these concepts ought, it is submitted, to be interpreted and applied broadly and flexibly, and ought therefore to include a significant consideration of broad public policy factors. To the ‘legal purist’ who may protest against the possible uncertainty that may result, the...