THE DEVELOPMENT OF SINGAPORE LAW: A BICENTENNIAL RETROSPECTIVE1

• Author: Andrew PHANG Judge of Appeal, Supreme Court of Singapore. GOH Yihan Professor of Law, School of Law, Singapore Management University. Jerrold SOH Assistant Professor of Law, School of Law, Singapore Management University; Co-Founder, Lex Quanta.
• Published date: 01 December 2020
• Date: 01 December 2020

The present article reviews (in broad brushstrokes) the status of Singapore law during its bicentennial year. It is not only about origins but also about growth – in particular, the autochthonous or indigenous growth of the Singapore legal system (particularly since the independence of Singapore as a nation state on 9 August 1965). The analysis of this growth is divided into quantitative as well as qualitative parts. In particular, the former constitutes an empirical analysis which attempts – for the very first time – to tell the development of Singapore law through numbers, building on emerging techniques in data visualisation and empirical legal studies.

I. Introduction

1 The present article, which reviews (in broad brushstrokes) the status of Singapore law during its bicentennial year since the founding of Singapore by Sir Stamford Raffles in 1819, is of particular significance as English law constitutes the foundation of Singapore law. The role of Raffles and his successors, therefore, could not have been more directly

relevant.2 However, this article is not only about origins but also about growth – in particular, the autochthonous or indigenous growth of the Singapore legal system (particularly since the independence of Singapore as a nation state on 9 August 1965). Hence, it is equally significant that it brings together essentially three generations of legal scholars in interaction and collaboration with each other. This intergenerational encouragement and growth is emblematic of what is required if Singapore law is to continue to grow from strength to strength in the future as well. The first-named author, a former legal academic and presently a judge, represents the older generation from whom the legal baton must be passed in the near future. And so it is in the other generations that our future lies. In this regard, the second-named author is the youngest dean appointed to a local law school in recent times, whilst the third–named author (the “baby” of the group) is a graduate in law as well as economics and is completely conversant with advanced methods of statistical analysis that are so necessary in a world that is now dominated by advances in technology (and the particular exercise of this skill will in fact be demonstrated in the illuminating statistical analyses below).

2 We naturally turn, first, to the distant past before proceeding to consider the present. Much has been written on the former3 and so we can be relatively brief. The main themes of the story sought to be captured here focus on the past five decades or so. This does not mean that the previous 150 years were unimportant – not in the least. However, the growth which we alluded to in the preceding paragraph begins around the time of Singapore's independence. Up to that particular point in time,

it is not surprising in the least that Singapore law was – apart from some variations in the statutory sphere – primarily English in form as well as substance. That is why the first-named author of this article was inspired to embark upon a doctoral thesis that sought to examine the development of Singapore law from an interdisciplinary perspective.4 From the past, we then consider (as just alluded to above) the development of Singapore law during the past five decades or so.5 In this last-mentioned regard, the analysis will be divided into quantitative as well as qualitative parts. We then conclude this article with some personal reflections. As the authors represent three generations of lawyers, each of us will contribute individually (albeit briefly) in this particular regard.

3 With this brief introduction, we now turn to consider – in brief compass – the development of Singapore law from 1819 to Singapore's independence in 1965. However, before proceeding to consider briefly the past, five preliminary points might be usefully made.

II. Five preliminary points

4 The first is that Singapore did indeed have an historical past prior to its (colonial) founding by Raffles in 1819.6 However, for all intents and

purposes, the prevailing method of dispute settlement was (as briefly noted below) quite different from that introduced by Great Britain in the form of English law. And this leads us to the next (and closely related) point.

5 The second is that whilst it might seem at least somewhat anomalous to talk about what is essentially the indigenous development of a foreign (in our case, English) law, the key lies in the fact that notwithstanding its foreign roots, English law has (as already alluded at the outset of the present article) in fact been developed indigenously. By way of a second related sub-point, it should be noted that there was no real uniform law (or lex loci) prior to the introduction of English law. A third related sub-point is this: whilst it is true that Singapore law as we know it today has its roots on a colonial law that was (at least at the very outset) “imposed” on it, that law (that is, the general principles of common law and equity) forms one branch of two dominant branches of law that operate in the world today (the other being the civil law system). This leads to a closely related (and fourth) sub-point, which is that the reception (and subsequent development) of English law in Singapore has in fact contributed positively to the facilitation of trade and commerce that constituted the lifeblood of the country from the outset and which (in modified and diversified forms) continue to contribute to Singapore's prosperity today. Finally (and by way of a fifth sub-point), whilst the general principles of common law and equity literally arose from a so-called Western system, the sharp dichotomy that one might possibly seek to draw between so-called Western systems on the one hand and Eastern systems on the other misses, with respect, the fact that, regardless of the system of law that a particular country embraces, every system of law seeks to achieve just and fair results in the cases at hand and (as importantly) must necessarily be universalisable as well as operate on (equally universal) principles of logic as well as common sense. Looked at in this light, the general principles of common law and equity which Singapore inherited (albeit initially at a colony of Great Britain) contain the qualities just mentioned in spades.

6 The third preliminary point is one that augurs very well for the Singapore legal system in general and its personnel in particular – a nuanced understanding as well as application and development of the law (including Singapore law) is relatively independent of the particular country's (here Singapore's) natural resources. Whilst it is true that funds need to be expended (especially in a common law system) on library resources, such expenditure is not as expensive compared to other disciplines within a typical university and this is an a fortiori case when compared to the general expenditure of any given country as a whole. As (if not more) importantly, excellence in the analysis, application as well as development of the law is, generally speaking, thereby not constrained by an absence of natural resources. The main limitations or constraints lie only to the extent to which lawyers, judges and legal academics limit their own minds and imaginations. Looked at in this light, there is no reason in logic or principle why Singapore cannot continue to develop its laws in order to better suit local conditions and circumstances – without, of course, losing sight of the fact that the indigenous or autochthonous development of Singapore law must not be undertaken for its own sake for to do that would be to merely indulge in “legal parochialism” without recognising the need to simultaneously balance such development with the broader (as well as inevitable and inexorable) influences of globalisation and internationalisation.7 Indeed, the world has – primarily through technology – become a much “smaller” world in every sense of the word. This has, in turn, required a corresponding global as well as international outlook. However (albeit at the risk of putting the point too simplistically), where the domestic needs and circumstances require it, Singapore law ought to be developed with these needs in mind.

7 The fourth preliminary point is that the focus of the present article is on the development of the general principles of the common law and equity in the Singapore context, although there will be brief references to local legislative developments as well.8

8 The fifth preliminary point is a rather broader one – it eschews the most corrosive of views that views the law as being irretrievably subjective and therefore a mere instrument, so to speak, at arriving at a particular (and subjectively desired) decision. In refuting this extremely destructive perspective, we can do no better than quote extensively from a public lecture delivered by the first-named author:9

Although the topic of this lecture is ‘Doctrine and fairness in the law of contract’, the concepts of doctrine and fairness are not confined to the law of contract alone. On the contrary, they constitute, I suggest, the foundation of any practical and just legal system. That having been said, the law of contract is a particularly appropriate point of focus as well as analysis simply because it constitutes the foundation of (and is related to) virtually every area of commercial law.

Put simply, the central thesis of the present lecture is this: The rules and principles which constitute the doctrine of the law are not ends in themselves but are, rather, the means through which the courts arrive at substantively fair outcomes in the cases before them in every area of the law.

…

On the other hand, legal doctrine is not an end itself. Its primary function is to guide the court, in a reasoned fashion, to arrive at a fair result in the case before it. Here, too, academic literature has a potentially significant (perhaps...