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This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolv

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Introduction

Introduction This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolves as a legal transplant. We will start with an analysis of the historical, socio-cultural and political contexts of the respective countries, from which we can assess the extent of reception in each of these and the resultant issues that arise. Finally we will attempt to arrive at an understanding of the common law as a legal transplant, how it is beneficial and why it evolves differently in the respective countries. Legal Systems as Legal Transplants The term "legal transplants" was coined by Alan Watson to refer to "the moving of a rule... from one country to another, or from one people to another". This involves the spread of cultural items between individuals in the "continual mass borrowing... of rules" which Watson asserts is "the most fertile source of legal development". Watson's theory of legal transplants has been met with great criticism, from being "flawed" with "unconvincing" empirical evidence to "not [being] a theory at all"1. Some insist that legal transplants are impossible, as proponents of legal transplants must accept that law is simply a body of rules, and these rules are bare propositions without any cultural imputations. As no collection of words can be "completely devoid of semantic content", in the same way a rule cannot be isolated from its cultural backdrop. 2 Be that as it may, for our discussion it is not necessary for us to add to this legal theory debate. As a definition3, it suffices. As we are discussing legal systems as legal transplants rather than legal rules, we assert that the former embodies approaches not concrete rules, which readily transplantable. Since different legal systems place different emphases on universal ideas and principles4, there must be some basis for commonality, as these are very much universal mores that are important to societies to different extents. ...read more.

Middle

Extent of the reception of Common Law The common law is an important strand of Singapore and Malaysia's politico-legal fabric. They are similar in having inherited the English common law tradition and share the accompanying benefits of stability, certainty and internationalisation. The pivotal doctrine of judicial precedent in common law, is present in both systems20. In addition, they have abolished appeals to the Privy Council, and are not bound by decisions from England and other commonwealth jurisdictions. Secularity is also present in both systems due to the separation of religion from the state21. The English Common Law heavily influenced the development of their laws. This is more evident in certain traditional Common Law areas22 than in statute-based areas23. In the latter, Indian and Australian legislation have strongly influenced their content and approach. Also, both countries exercise independence in drafting new legislation to suit local contexts24. Minor differences in their respective receptions are that, in Singapore, the Application of English Law Act was enacted in 1993 to restrict the scope of English influence. No such act exists in Malaysia. Also, in the area of Contract Law, while Malaysia's laws are codified by adopting the Indian Contracts Act, Singapore uses English common law principles. Issues Arising Regarding the Reception of the Common Law Singapore has made significant departures from the English courts even in traditional common law areas, and has seen extensive developments of local jurisprudence. For example, in the law of torts, the Singapore courts have consciously deviated from the English exclusionary rule25 so as to allow recovery for pure economic losses arising from negligent acts or omissions26. More recently, in the law of contract, Singapore has chosen not to adopt the English position27 on equity's jurisdiction in the case of unilateral mistake.28 In comparison, Malaysia's legal system has seen fewer innovations and may be isolated from the international legal sphere as portions of jugments are published solely in Malay. ...read more.

Conclusion

Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.2. 21 It must be noted that even though Syriah law is present in both countries, it is considered as a separate legal system from common law. 22 Such as Contract, Tort and Restitution. . Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.4. 23 Such as Criminal Law, Company Law and the Law of Evidence. . Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.4. 24 Age of Majority Act in Malaysia and the Multi-Level Marketing and Pyramid Selling Act in Malaysia. 25 Murphy v Brentford District Council (1991) Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.6. 26 Anns v Merton (1978) Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.6. 27 Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (2002) Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.6. 28 Chwee Kin Keong v Digilandmall.com Pte Ltd (2005) Eugene Tan, Gary Chan, "The Singapore Legal System; Articles on Singapore Law (1,2005)" at para 1.3.6. 29 In the 2008 Political and Economic Risk Consultancy survey, it was reported that Singapore has the best judicial system in Asia, together with Hong Kong. On the scale of zero to ten (zero representing the best performance and ten representing the worst), Singapore obtained a 1.92 while Malaysia obtained 6.47. 30 In July 1983, the Malaysian Government presented a bill to parliament proposing amendments for the constitutional position of certain hereditary Malay rulers which erupted into a constitutional crisis which threatened to paralyse the processes of government. Randal P. Peerenboom, 'Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S.' Routledge Curzon, 2004 31 Also known as "Surat Layang" in Malay ?? ?? ?? ?? 14 ...read more.

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