UNIVERSITY TEKNOLOGI MARA

LAW 511

JURISPRUDENCE II

INDIVIDUAL ASSIGNMENT

WAN MOHD IKRAM BIN WAN IBRAHIM

2007144221

GROUP B

Date of Submission: 22th September 2010

Questions

1. The Court of Appeal, in a number of judicial decisions like Shamin Reza [2009] 1 LNS

887 and Tan Tek Seng [1996] 1 MLJ 261 has adopted a broad, generous and prismatic

approach to constitutional interpretation. The Federal Court has largely been

conservative.

In the debate about whether judges are law finders or law makers, discuss the following:

a. Discuss what Ronald Dworkin says in the proper approach to judicial interpretation;

and

b. Discuss whether the Malaysian Constitution and legal system support an activist or

passive judiciary.

3. Discuss and evaluate the contributions, if any of the American Realists to jurisprudence

and legal theory.

4. Discuss and critically comment on the theories of Scandinavian realist on the legal

concept of ‘rights’.

Question 1(a) Discuss what Ronald Dworkin says in the proper approach to judicial

interpretation.

The judiciary plays an important role in all legal system. But the question is, how does a judge

make a decision in their case? If a case is brought to the court, the judge cannot refuse to

adjudicate it on the basis that there is no precedent or the lawyer cannot cite any authority on the

point of law. It shows the importance of a proper approach to judicial interpretation.

The question arose whether judges are law finders of law makers. However, all country

universally recognized in many direct or indirect ways that judges are law maker. For example,

in Malaysia, a democracy country with a common law system, the judicial role is creative and

dynamic and this had been proved by ways of manifestations of creativity. For example, the

doctrine of binding precedent and doctrine of stare decisis applied in Malaysia.

In the issue whether judges are law maker or law finders, Ronald Dworkin observed that there is

a right answer to each case. The law is to be treated as a seamless web in which there always is a

right answer. Based on Dworkin’s theory of constitutional interpretation, a judicial decision are

characteristically generated by principles and enforces existing political rights, so that litigants

are entitled to the judge’s best judgment about what their rights are. To Dworkin, different judge

may come to different conclusions but he insists that judges may not rely on their own political

views but only on their beliefs in the soundness of those convictions.

It has long been received opinion that judges “filled in the gaps” left by rules by using their

discretion. HLA Hart has written, “That the rule-making authority must exercise discretion…”

Hart saw rules as ‘open-textured’. However Austin saw no problem in this. It is the thesis of

Dworkin that judicial discretion in what Dworkin calls its “Strong Sense” does not exist.

Dworkin rejects the view regarding judicial discretion. The judges often are heard to say: “We

find the law to be this”, and they say they discover the law. They do not profess the law to be

their own discretion.1

1 http://theoryofjurisprudence.blogspot.com/2007/12/ronald-dworkins-right-thesis.html

Dworkin says that to interpret a law is to get to its point or purpose and interpretation should

result into making the best of something. Interpretation has three stages;2

1. Pre –interpretive stage: at this stage, interpreter agreed as to the contents of their practice.

That is to say, lawyers agree as to what the relevant law is which is applicable to the

dispute in hand. For example, in the United States, there is a general agreement as to the

laws, statutes, the constitution and the decided cases which are relevant and applicable in

a dispute. The scheme of rights and duties laid down shows that coercion or force be not

used except as licensed or required by individual rights and responsibilities arising from

past political decisions.

2. Interpretive stage: at this stage, the interpreter settles on some general justification for the

main elements of the practice. The justification need not fit every aspect or feature of the

standing practice but it must fit enough for the interpreter. In the interpretive stage,

people while observing a social practice, raise question as to why the practice continues.

What is the real reason for its continuity? People may have different notions about the

courtesy, the main point to note is that there is a questioning attitude which was absent in

the interpretive stage.

3. Post interpretive stage: it is a reforming stage at which the interpreter adjusts his sense of

what the practice requires so as to serve better the justification he accepts at the

interpretive stage. As a result of the interpretive stage, some consensus emerges as to the

social practice people want to conform to. This stage aims to give effect to the consensus

that has resulted at the interpretive stage.

Dworkin opined that, judges are always constrained by the law. In every adjudication of the so-

called “hard-cases’ there are controlling standards which a judge is obligated to follow. Dworkin

objects to judges acting as ‘deputy legislators’ or law makers for 2 reasons3:

1. Separation of Power: It offends the democratic ideal that a community should be

governed by elected officials answerable to the electorate. The judge not being elected

must not substitute his own will as against the legislature.

2 Modern Jurisprudence, by Prof. Hari Chand, pp157-1593 http://theoryofjurisprudence.blogspot.com/2007/12/ronald-dworkins-right-thesis.html

2. Retrospectively & The Rule of Law: Dworkin’s second objection to judicial originality is

that “if a judge makes a new law and applies it retrospectively in the case before him,

then the losing party will be punished, not because he has violated some duty he had, but

rather a new duty created after the event.”

Ronald Dworkin also opined that if judges are to make law, as what Hart said, that would be in

contradiction to the theory of separation of power. If judges were to make law in hard cases, they

would be applying the law retrospectively; that’s against the rule of law. Citizen has a complaint

that even though he was not surprised by retrospective legislation, there was no liability at that

time he did the act. If the citizen is being made retrospectively liable, it is because there was no

law at that time that made him liable that places a special duty upon the legislature to justify

retrospective legislation.

Dworkin is also not satisfied with a view that when the rules or law ran out the judge operate as a

deputy legislator filling in the gaps. The reasons are because discretion is not free-standing but

part of a process. Discretion, in Dworkin’s view, like the hole in the doughnut, does not exist

except as an area left open by a surrounding belt of restriction. Discretion is not outside the law

but internal to the law. If judicial decision making was unfettered discretion we would have to

say that it is no special role for judges beyond being a political and administrative official. If

judges were unfettered law makers they would have to be democratically elected.

Most important of all, Dworkin's central thesis about constitutional interpretation, or something

like it, must be right. Dworkin contrasts his claim with the belief that a court can interpret the

Constitution without having to engage at all in normative inquiry about what rights people

should have, as if the Constitution's authors had already done all the thinking on this subject and

the only job of judges is to enforce this received wisdom in the lawsuits that come before them.

Dworkin defends his claim that constitutional interpretation requires reliance on political

philosophy by invoking the text of the constitution itself. He points to the constitution that a

court seeking to understand the meaning and implications of clauses in constitution has no choice

but to engage in philosophical inquiry concerning the content of these fundamental values. For

example, what specifically must a state do, or not do, in order to give everyone within its

jurisdiction "equal protection of the laws"? To answer this question, as Dworkin says, necessarily

requires a court to consider philosophically the value of legal equality. 4

In his book Law's Empire[ Dworkin argues that law is an 'interpretive' concept, that requires

judges to find the best fitting and most just solution to a legal dispute, given their constitutional

traditions. According to him, law is not entirely based on social facts, but includes the morally

best justification for the institutional facts and practices that we intuitively regard as legal.

Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as

an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations

that fit, Dworkin maintains that the correct interpretation is the one that puts the political

practices of the community in their best light, or makes of them the best that they can be. But

many writers have doubted whether there is a single best justification for the complex practices

of any given community, and others have doubted whether, even if there are, they should be

counted as part of the law of that community.5

It is appropriately to describe Dworkin’s theory of law lies in the best moral interpretation of

existing social practices. His theory of justice is that all political judgments ought to rest

ultimately upon the injunction that, people are equal as human beings, irrespective of the

circumstances.

In the case of Tan Teck Seng v SPP, it was held by the court that removal must be for a good

reason by resorting to fair procedure. In another case of Shamim Reza Abd Samad v PP, the

plaintiff argued that it is not a fair trial because of the incompetence of his counsel. It was held

the court that, it must interprate in wider concept, where article 5 of Federal Constitution

provided about fair hearing and fair trial within reasonable time. Fair trial here means plaintiff

must be represented by competent counsel.

By both of these cases, we can conclude that, the effect of Dworkinian approach to interprate

article 5(1) of Federal Constitution is that, rights not expressly mentioned in Federal

Constitution can be impliedly read as part of the constitutional guarantee.

4 http://www.highbeam.com/doc/1G1-19387147.html5 http://www.highbeam.com/doc/1G1-19387147.html

Question 1(b) Discuss whether the Malaysian Constitution and legal system support an

active or passive judiciary.

The Malaysian Constitution plays an important role in our legal system. But the question is

whether the Malaysian Constitution and their legal system support an active or passive judiciary?

In my opinion, the Malaysia Constitution and legal system support a passive judiciary. This is

based on a few reasons. First, we must know that much of Malaysia’s history is related to Great

Britain which established amongst the early colonies on the Malay Peninsula. The British, who

had ruled Malaya for more than one hundred and fifty with just one short interruption of the

World War II, left greater impact upon the law of the country.

The Federation of Malaya received her independence from the British in 1957. On September 16,

1963, the eleven states of the Federation of Malaya, the former colonies of Sarawak and Sabah

on the western coast of Borneo and the State of Singapore united to form the Federation of

Malaysia. Malaysia, as it is known today, consists of the eleven peninsular states that constituted

of Malaya (this is referred to as peninsular Malaysia), Sabah and Sarawak.

Here, we can see that Malaysia legal system had support a passive judiciary whereby, it started

from the reception of English law during the British colonization. However, the reception of

English law only became statutory after the promulgation of the Civil Law Enactment of 1937.

There are three segments of periods of which modern Malaysian laws were made. Pre-war law

was made during the decentralization of Malay states. The Malay states at that time were divided

into three groups of states. Post-war law was made after the unification of all the Malay states

except Singapore under a federal administration and Post-independence law was made after the

formation of the Federation of Malaya and. Prior to the independence in 1957, most of the laws

of United Kingdom were adopted and either made into local legislations or simply applied as

case laws. The application of English law or common law is specified in the Civil Law Act 1956

as stated in Sections 3 and 5 of the said Act which allows for the application of English common

law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made.

Similarly, in the context of civil law, Section 5 of the Criminal Procedure Code also states that

English law shall be applied in cases where no specific legislation has been enacted.6

Other proves that Malaysia support passive judiciary is when the Malaysian law is legislated

based on other jurisdictions’ laws such as Australia and India. The Malaysian Criminal

Procedure Code was based on the Indian criminal code. Thus, the labour law and the Contracts

Act are also based on the Indian model. Besides, Malaysian land law is based on the Australian

Torrens system. There are a number of laws made during the colonization still in existence and

applicable with certain modifications in line with domestic and current circumstances. It means,

most of our main legal system such torrent system, contract law and criminal law is made based

on other countries. It shows the legal system of Malaysia support passive judiciary.

 

Although the Malaysian legal system is predominantly based on English common law, there are

also other secondary legal systems concurrently affecting certain sections of the law, such as

Islamic law and customary law. 

As we know, the legal system of Malaysia was modeled after the English legal system which

practices parliamentary democracy. The Federal Constitution of Malaysia clearly divides the

law-making authority of the Federation into its legislative authority, judicial authority and

executive authority. The separation of power also occurs both at federal and state levels. The

federal laws enacted by the federal assembly or better known as the Parliament of Malaysia

applies throughout the country. There are also state laws governing local governments and

Islamic law enacted by the state legislative assembly which applies in the particular state. The

Parliament generates a great number of publications containing law primarily the federal statutes

which are officially published in the Government Gazettes by the Government Printer.

So, we can conclude that, based on reasons given above, the Malaysia Constitution and legal

system had support passive judiciary.

6 http://www.nyulawglobal.org/Globalex/Malaysia.htm

Question 3: Discuss and evaluate the contributions, if any of the American Realists to jurisprudence and legal theory.

Legal realism is a family of theories about the nature of law developed in the first half of the

20th century in the United States, which is known as American legal realism. The essential

principle of legal realism is that all law is made by human beings and is therefore subject to

human foibles, frailties and imperfections

In general, no single set of beliefs was shared by all legal realists, but many of the realists shared

one or more of the following ideas:7

All legal realist belief in the indeterminacy of law. For example, many of the legal

realists believed that the law in the books such as statutes and cases did not determine the

results of legal disputes. One of the legal realists, Jerome Frank is famously credited with

the idea that a judicial decision might be determined by what the judge had for breakfast.

They also belief in the importance of interdisciplinary approaches to law, whereby many

of the realists were interested in sociological and anthropological approaches to the study

of law.

They belief in legal instrumentalism, which the view that the law should be used as a tool

to achieve social purposes and to balance competing societal interests.

Besides, legal realism operates on a principle that is adhered to, often unwittingly, by most

laymen and many who have legal training: that "the law," whatever that may be, is concerned

with and is intrinsically tied to the real-world outcomes of particular cases. However, by

accepting this principle had moves jurisprudence or the study of law in the abstract, away from

hypothetical predictions and closer to empirical reflections of fact. Proponents of legal realism

say it is not concerned with what the law should, or "ought to" be, but that legal realism simply

seeks to describe what the law is. Proponents of legal formalism disagree, saying that "law" is

what is commanded by a lawgiver, that judges are not lawgivers, and that what judges do, while

it might belong to the field of law, is not "law" but legal practice.

Furthermore, many developments in legal thought have drawn a lot from legal realism, including

the development of the legal process school, a theory that attempted to chart a middle way

7 http://en.wikipedia.org/wiki/Legal_realism

between the extremes of realism and formalism. Realism remains influential, and a wide

assortment of jurisprudential schools today have either taken its principle to greater extremes,

such as critical legal studies, feminist legal theory, and critical race theory, or more moderately,

such as law and economics and law and society. Legal realism also influenced the recognition of

political science and studies of judicial behavior therein as a specialized discipline within the

social sciences.8

One of the American Realist, Oliver Wendell Holmes laid the foundation of healthy and

constructive scepticism in the law. In 1881, Holmes published The Common Law, representing a

new departure in legal philosophy. By his writings, he changed attitude to law. The opening

sentence captures the pragmatic theme of that work and of Holmes's philosophy of law: 'The life

of the law has not been logic; it has been experience.9

Holmes declared that the law should develop along with society. He also argued for judicial

restraint, asserting that the Court should not interpret the Constitution according to its own social

philosophy. According to Holmes, 'men make their own laws and these laws do not flow from

some mysterious omnipresence in the sky, and ... judges are not independent mouthpieces of the

infinite. ‘The common law is not a brooding omnipresence in the sky. Holmes compared the Law

to a bad man "who cares only for the material consequences of things." Holmes defined the law

in accordance with his pragmatic judicial philosophy. Rather than a set of abstract, rational,

mathematical, or in any way unwordly set of principals, Holmes said that '[t]he prophecies of

what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the historical,

social, and economic aspects of the law will be in a position to fulfill his functions properly.10

As a justice of US Supreme Court, Holmes introduced a new method of constitutional

interpretation. He challenged the traditional concept of constitution. Holmes also protested

against the method of abstract logical deduction from general rules in the judicial process.

According to Holmes, lawyers and judges are not logicians and mathematicians. The books of

8 http://en.wikipedia.org/wiki/Legal_realism9 Modern Jurisprudence, Prof. Hari Chand, p.21010 http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr

the laws are not books of logic and mathematics. He writes: "The life of the law has not been

logic; it has been experience.

Another American legal realist, Karl Llewellyn put significantly more emphasis on the facts of a

specific case than on general legal rules. Law, the realists contended, is not a deductive science.

He is famous for his statement that, by referring to judges, sheriffs, clerks, jailers and lawyers,

what these officials do about disputes is, to my mind, the law itself. While this predictive

approach to defining law of the law was criticised as incomplete by H.L.A. Hart, it has had a

significant impact on jurisprudence generally.11

Llewellyn regarded statutes and precedents as mere paper rules. But the courts actually operate

‘real rules’ which have to be discovered or brought to light. Llewellyn claimed that ‘paper rules’

misdescribe the reasoning process judges in fact adopt in reaching their decisions. Ratio

Decidendi provided mere ‘paper justifications’. Llewellyn explains that there are mainly two

reasons why ‘paper rules’ fail. First, legal rules are framed in such a way that there is usually a

certain amount of leeway for future application. Thus, a lawyer is at a loss to predict how the

judge will decide a case. Secondly, judges may play down, of not disregard, the rules, thus,

accurate prediction cannot be done on the basis of ‘paper rules’.12

American legal realist, Jerome Frank had contributed to jurisprudence by giving a principle

about the basis legal myth. Frank holds that it is a basic legal myth to think that law can be

relatively permanent and fixed. Since law deals with human affairs, it is absurd to realize even

proximate and predictability in law. Then, he question, ‘but why do people seek certainty in

law?’ frank provides an explanation for this quest in human psychology. He says that people

seek unrealizable certainly in law because they have not yet relinquished the childish need for

authoritative father and unconsciously have tried to find in the law a substitute for those attribute

of firmness, sureness, certainty and infallibility ascribed in childhood to the father.

Question 4 Discuss and critically comment on the theories of Scandinavian realist on the legal concept of ‘rights’.

11 http://en.wikipedia.org/wiki/Karl_Llewellyn12 Modern Jurisprudence, Prof. Hari Chand, p.210

The jurisprudential of legal realism, consists of those jurists who strictly reject the concept of

natural law and who believe that legal concepts, terminology and values should be based on

experience, observation and experimentation and are thus, ‘real’. Hagerstrom is considered to be

the founding father of the Scandinavian school of legal realism. His disciples Karl Olivecrona,

Alf Ross and Anders Vilhelm4 all take a similar basic view to Hagerstrom in their opinions on

the language of Western law. Due to their verdict on natural law, they also reject the concept of

human rights.

Hagerstrom opined that words such as ‘right’ and ‘duty’ were basically meaningless as they

could not be scientifically verified or proven. They may have influence or be able to direct a

person who obtains such a right or duty but ultimately, if they could not stand up to a factual test,

they were mere fantasies. Similarly, Hagerstrom regarded all value judgements as mere

emotional expressions using the form of j

udments without being judgments in the proper sense of the word. 13

Hagerstrom’s conceptual analysis is based upon his view that the meaning of a word depends

upon a reference to observable facts in order to express a concept. Considering the words “right”

and “duty” it is impossible to find any facts corresponding to the words and this implies that

there are no concepts of right and duty but only the use of meaningless words. This is

corroborated by his historical inquiry into Roman law leading to the view that the Roman ideas

of right and duty do not express concepts but are only magical words related to the use of

commands. Thus the ideas of right and duty are nothing but illusions to be accounted for by his

psychological inquiry into the nature of these ideas, claiming that the idea of duty is based upon

a feeling of compulsion associated with the idea of the action where the feeling is produced

through the suggestive influence of the expression of a command.

This corresponds to the analysis of the idea of right that refers to a feeling of power in relation to

things or persons which is exalted above any natural power. Although right and duty are illusions

13 http://en.wikipedia.org/wiki/Axel_H%C3%A4gerstr%C3%B6m

the use of the words has a vital function to cause the appropriate behaviour as the effect in order

to maintain peace among human beings.

Lundstedt follows Hagerstrom and abandons the concepts of rights within legal science. This

leads to a critique by Ross. To be sure, right and duty are illusions, but the words are not magical

words but can be used within legal science as technical tools to represent legal relations between

human beings and things. Olivecrona agrees that the concepts are used within legal science but

they are not exclusive technical tools for the jurists but are used in everyday life and legislation

to regulate human behaviour. This leads to his analysis of the ideas of right and duty in terms of

their directive and informative function. He also presents an account of the use of the concept of

right by Hugo Grotius and Samuel Pufendorf.14

Furthermore, Hagerstrom presented an analysis of rights and duties. He came to the conclusion

that the right as it is conceived in jurisprudence in daily life is neither identical with the fact of

protection by the state nor with the legal rules.15

In his view, right is a mystical power. He analyzed the ancient act of sale and purchase called

mancipatio. It was a strictly formal act. The purchaser uttered certain words. The seller stood

silent. In the presence of five witness, the buyer held one arm of the slave and recited a formula

of which the important words were, ‘I proclaim this man to be bought by me through this piece

of copper.” Then he would throw a piece of copper on a scale. What is the magic of the words,

gesture and ritual? It gave a right of a property to the buyer. Thus, to Hagerstrom, the origin of

rights and duties lay in magic. 16

Rights and duties were accompanied by certain emotions or feelings. A feeling of strength comes

to he who believes that he has a good right. He says that ‘one fights better when one is standing

up for one’s rights. There is a feeling of being backed by a superior power. One gets the feeling

that real power is there, though it is impossible to catch it.

Bibliography

14 http://ivr-enc.info/index.php?title=Scandinavian_Realism15 John Passmore, “Hagerstrom’s Philosophy of Law” p.143 (1961)16 Modern Jurisprudence, Prof. Hari Chand, p.217

1. Books

Modern Jurisprudence, ILBS (2001) by Prof. Hari Chand

John Passmore, “Hagerstrom’s Philosophy of Law” (1961)

Jurisprudence dan Teori Undang-undang dalam Konteks Malaysia, Sweet and Maxwell

Asia, (2005) by Badariah Sahamid

2. Journal and Website

http://theoryofjurisprudence.blogspot.com/2007/12/ronald-dworkins-right-thesis.html

http://ivr-enc.info/index.php?title=Scandinavian_Realism

http://en.wikipedia.org/wiki/Axel_H%C3%A4gerstr%C3%B6m

http://en.wikipedia.org/wiki/Karl_Llewellyn

http://en.wikipedia.org/wiki/Legal_realism

http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr

http://en.wikipedia.org/wiki/Legal_realism

http://www.nyulawglobal.org/Globalex/Malaysia.htm

http://www.highbeam.com/doc/1G1-19387147.html

http://theoryofjurisprudence.blogspot.com/2007/12/ronald-dworkins-right-thesis.html