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Comparing the Teaching of Comparative Law: A View from Singapore

Published online by Cambridge University Press:  24 July 2019

Arif A JAMAL Open the ORCID record for Arif A JAMAL [Opens in a new window]
Arif A JAMAL*
Affiliation:
Faculty of Law, National University of Singapore, [email protected]
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Abstract

This article explores what makes the teaching of comparative law distinctive as well as familiar in Singapore (and Southeast Asia more broadly), and so contributes to a process of comparing the teaching of comparative law. I argue that one must balance both familiarity and distinctiveness when teaching comparative law in Southeast Asia. This means that, on the one hand, we can indeed draw on general and even classical materials when teaching comparative law in this region. On the other hand, there is the need to address specific features that shape the context of Southeast Asia. Finally, I discuss how the Southeast Asian example may be instructive because of this balancing in highlighting the importance of teaching comparative law in other parts of the world.

Type
Article
Information
Asian Journal of Comparative Law , Volume 14 , Supplement S1 , October 2019 , pp. S195 - S211
Copyright
Copyright © National University of Singapore, 2019 

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Footnotes

*

Associate Professor, Faculty of Law, National University of Singapore.

References

1. Macfarlane v Tayside Health Board (Scotland) [1999] UKHL 50, [2000] 2 AC 59, 81 (Lord Steyn).

2. See ‘Curriculum’ (SMU) <https://law.smu.edu.sg/llb/curriculum> accessed 11 March 2019; ‘Core Courses’ Description’ (SMU) <https://law.smu.edu.sg/programmes/bachelor-laws/why-smu-law/rigorous-challenging-curriculum/core-courses-description> accessed 11 March 2019; ‘Typical Schedule of Modules’ (NUS) <https://law.nus.edu.sg/student_matters/llb_prog/typ_sch_llb.html> accessed 11 March 2019.

3. The legal curriculum at Singapore's third law school, Singapore University of Social Sciences (SUSS), does not have a required module of this type, though some of the same content might be covered in the module ‘Legal Methods and the Singapore Legal System’, which is required for both the SUSS Bachelor of Laws (LLB) and Juris Doctor (JD) programmes. See ‘LLB Undergraduate Studies Programme Overview’ (SUSS) <www.suss.edu.sg/programmes/programme-details/Pages/Bachelor-of-Laws.aspx> accessed 11 March 2019; and ‘JD Programme Overview’ (SUSS) <www.suss.edu.sg/programmes/detail/juris-doctor-lawjd> accessed 11 March 2019.

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7. ibid 440.

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10. ibid 170 (emphasis added).

11. Ruskola continues by saying: ‘I shall nevertheless proceed with such an attempt, with the important qualification that what follows is the description of an East Asian legal tradition – namely, what I call the classical legal tradition of East Asia, or by way of analogy, a kind of East Asian ius gentium. Although it is a historically significant tradition, by no means does it exhaust the entire East Asian legal universe. To suggest so would, indeed, be foolish. Yet the very notion of an East Asian legal tradition itself – whether characterized as singular or plural – requires some further methodological observations. First, just what does the term “East Asia” encompass? Second, what do we mean by a “legal tradition”? The answer to neither question is obvious.’ See Ruskola, Teemu, ‘The East Asian Legal Tradition’ in Bassani, Mauro and Mattei, Ugo (eds), The Cambridge Companion to Comparative Law (CUP 2012) 257CrossRefGoogle Scholar.

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13. For a recent study confirming the same in the context of Singapore, Hong Kong, and Malaysia, see Ng, Kwai Hang and Jacobson, Brynna, ‘How Global is the Common Law? A Comparative Study of Asian Common Law Systems – Hong Kong, Malaysia, and Singapore’ (2017) 12 Asian Journal of Comparative Law 209CrossRefGoogle Scholar. Ng and Jacobson say in conclusion that: ‘This article argues that the common law in Asia is not positioned as a set of local laws rooted in common customs or practices, but as a globalized system of law that operates as a well-tested set of legal know-hows … Arguably, the most striking finding is that foreign citations are almost as common as domestic citations in the case law of the three jurisdictions. As such, not only do the three deviate greatly from the practices of the Anglo-American common law; together, they represent an extraordinary case of the Commonwealth model.’ ibid 231.

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17. Criminal Code, RSC 1985, c C-46, as amended (Canada).

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25. For example, as Kevin Tan has remarked with respect to Singapore:

Once brought into Singapore, the common law in Singapore was on its own. English judges do not continue to make law for Singapore and ‘subsequent developments in the common law in the English courts do not automatically apply to Singapore.’ Developments of common law doctrine in England did not directly affect the development of Singapore which continued to develop and flourish on its own, taking into consideration its unique social circumstances and the needs of its population.

See Tan, Kevin YL, ‘Singapore: A Statist Legal Laboratory’ in Black, E Ann and Bell, Gary F (eds), Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations (CUP 2011) 330, 337Google Scholar.

26. See discussions of this in Hooker, MB, A Concise Legal History of South-East Asia (Clarendon Press 1978), ch 1Google Scholar; Hooker, MB, Adat Law in Modern Indonesia (OUP 1978)Google Scholar.

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28. AMLA (Cap 3, 2009 Rev Ed) (Singapore) (emphasis added). Section 112 of AMLA, also makes reference to the Malay custom saying:

Distribution of Muslim estate to be according to Muslim law

112.—(1) In the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom. (Emphasis added).

29. Laws of the Constitution of Selangor, 1959, in Constitutions of the States of Malaysia (2nd edn, International Law Book Series 1998) 545Google Scholar (emphasis added).

30. ibid 34 (Laws of the Constitution of Johore, 1895) (emphasis added).

31. See for a general discussion, Hooker, Adat Law in Modern Indonesia (n 26) and Hooker, MB, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Clarendon Press 1975)Google Scholar.

32. For a recent discussion of Indonesia, see von Benda-Beckmann, Franz and von Benda-Beckmann, Keebet, ‘Legal Pluralism and Legal Anthropology: Experiences from Indonesia’ in Bell, Gary F (ed), Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of M.B. Hooker (ISEAS-Yusof Ishak Institute 2017)Google Scholar.

33. See Pew Research Center, ‘Global Religious Diversity’ (Pew Research Center, 4 April 2014) <www.pewforum.org/2014/04/04/global-religious-diversity/> accessed 11 March 2019.

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35. Instruksi Presiden Republik Indonesia Nomor 1 Tahun 1991 Tentang Penyebarluasan Kompilasi Hukum Islam [Presidential Instruction No 1 of 1991 on Dissemination on Compilation of Islamic Law].

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37. MUIS <www.muis.gov.sg> accessed 11 March 2019.

38. CICOT <www.cicot.or.th/en/about> accessed 11 March 2019.

39. BE 2540/CE 1997 (adopted on 17 October 1997).

40. BE 2489/CE 1946 (adopted on 19 November 1946).

41. Constitution of the Republic of the Union of Myanmar 2008, s 361. For a discussion of Buddhism in Myanmar see Kyaw, Nyi Nyi, ‘Regulating Buddhism in Myanmar: The Case of Deviant Buddhist Sects’ in Neo, Jaclyn L, Jamal, Arif A, and Goh, Daniel PS (eds), Regulating Religion in Asia: Norms, Modes, and Challenges (CUP 2019), ch 8Google Scholar.

42. State LORC Law No 20/90 of 31 October 1990.

43. Ngoc Son Bui, ‘Legal Regulation of Religion in Vietnam’ in Neo, Jamal, and Goh (n 41) ch 7.

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45. Singapore Academy of Law, ‘Senate & Committees’ (Singapore Academy of Law) <www.sal.org.sg/About-Us/Senate-Committees/Legal-Development-Cluster> accessed 11 March 2019.

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47. Indranee Rajah, ‘Lawyers Go Global’ (Ministry of Law, 27 March 2018) <www.mlaw.gov.sg/content/dam/minlaw/corp/News/Note%20on%20Lawyers%20Go%20Global.pdf> accessed 11 March 2019. See also Law Society of Singapore, ‘Lawyers Go Global – Help for Singapore Lawyers to Venture Overseas’ (Law Society of Singapore) <www.lawsociety.org.sg/For-Lawyers/Lawyers-Go-Global> accessed 11 March 2019.

48. Indranee Rajah, ‘The Future of Dispute Resolution of Singapore’ (Ministry of Law, 19 June 2018) <www.mlaw.gov.sg/content/dam/minlaw/corp/News/Note%20on%20Future%20of%20Dispute%20Resolution.pdf> accessed 11 March 2019.

49. Paul Friedland, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ (White & Case LLP, 9 May 2018) <www.whitecase.com/publications/insight/2018-international-arbitration-survey-evolution-international-arbitration> accessed 11 March 2019.

50. Indranee Rajah, ‘The Future of Dispute Resolution of Singapore’ (n 48) 1.

51. ibid 2. Growth rate figures are derived from the Asian Development Bank, ‘Asian Development Outlook 2018: How Technology Affects Jobs’ (Asian Development Bank April 2018) x <www.adb.org/sites/default/files/publication/411666/ado2018.pdf> accessed 11 March 2019. See ibid x for the headline figures.

52. For a report on the shift of economic power, see Natalie Nougayrède, ‘Global Power is Shifting to Asia – and Europe Must Adapt to That’ The Guardian (London, 9 September 2017) <www.theguardian.com/commentisfree/2017/sep/09/global-power-shifting-asia-europe-must-adapt> accessed 11 March 2019. And for a fascinating graphic representation, see Richard Dobbs and others, ‘Urban World: Cities and the Rise of the Consuming Class’ (McKinsey Global Institute June 2012) 17, Exhibit 3 <www.mckinsey.com/~/media/McKinsey/Featured%20Insights/Urbanization/Urban%20world%20Cities%20and%20the%20rise%20of%20the%20consuming%20class/MGI_Urban_world_Rise_of_the_consuming_class_Full_report.ashx> accessed 11 March 2019).

53. See (n 11) above.

54. (Cap 167B, 1996 Rev Ed) (Singapore).

55. These sorts of comments and the identification of the Maintenance of Parents Act 1996 as expressing the Confucian value of filial piety are interesting because, in fact, it may be said that the Act was necessary precisely because filial piety as a cultural value was not sufficiently strongly established in society. That is, if filial piety was actually manifest with children caring for their parents as part of an ingrained Confucian mentality then there would have been no need for the Act. The very fact of legislating for children to maintain parents, therefore, suggests a perceived absence, rather than presence, of Confucian morality in practice. On the other hand, the identification of the Act with a Confucian-inspired value is not unreasonable or unfair, and this value helps the Act to make ‘cultural sense’.

56. Yeh, Jiunn-Rong and Chang, Wen-Chen, ‘The Emergence of East Asian Constitutionalism: Features in Comparison’ (2011) 59 American Journal of Comparative Law 805, 809–810CrossRefGoogle Scholar.

57. ibid 838.

58. Fitzpatrick, Daniel, ‘Chinese Family Firms in Indonesia and the Question of “Confucian Corporatism”’ in Hooker, MB (ed), Law and the Chinese in Southeast Asia (ISEAS 2002) 150–168CrossRefGoogle Scholar.

59. ibid 165–166.

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61. H Patrick Glenn, ‘Asian Thought and Legal Diversity’ in Bell, Pluralism, Transnationalism and Culture in Asian Law (n 32) 31.

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