Legal Pluralism

Rights of Assembly

Singapore has very strict laws with regards to public protests, contrary to Article 20 of the UDHR which provides that everyone has the right to freedom of peaceful assembly and association. Furthermore, Article 21 provides without restrictions that the right of peaceful assembly shall be recognised. To stage an outdoor protest and marches, permits were required under the Public Entertainments Meeting Act. The application to speak at the Speakers’ Corner requires prior police approval. However, recent relaxations of the rules have seen outdoor protests being allowed at Hong Lim Park. In this exercise, we see how state law attempts to reconcile itself with customary international law without losing its ability impute social justifications for certain decisions it chooses to undergo.

In summary, this Singapore example shows how local state laws as a normative sphere sometimes conflict with international customary laws as another. Although there may be a question of whether Singapore is even bound by such laws, by virtue of our global citizenship, we generally are. Accordingly, Singapore has opted not to follow customary international laws that it feels uncomfortable with and this is within its full right to do so.

IV. Legal Pluralism between co-existing normative systems: Official State system vs. Non-State system

Legal pluralism between co-existing normative systems, namely between the state and customary or religious law was best understood as being catalyzed during the period of colonization. Though some non-state law has been recognised to a certain extent by the state, the clashes between the two arising their power struggle remains inevitable. Our present analysis can take the form of either (i) contrasting the two systems or (ii) viewing it based on an ‘actor-oriented’ scenario.

In both Australia and Canada, who became the subjects of European colonization, have virtually no legal pluralism within the society. Indigenous law was absolutely rejected based on the discrimination of such unwritten laws that failed to conform to the sophisticated standards of White law. This reinforced the Western hegemonic assumption that monist secular positive state law is the solution to differences within the system. Although land rights in the above two nations have been recognised as part of Native Title, not only are the other aspects of customary laws ignored, the extent of pluralism creates a ‘legal fiction’ where customary laws became a ‘product of colonisation’ subjected to the overview and application in the White man’s courts and interpreted in the way that ‘showed lack of understanding or competence of or outright contempt for these laws’.

A more explicit recognition of the non-state system using the system analysis can be illustrated in Indonesia, Malaysia and Singapore. With colonisation, these nation states faced legal imports from their respective colonizers with limited recognition of customary or religious law in relation to personal laws. These ‘personal laws’ were recognised so long as it was not in conflict with the Western laws and to the extent which the colonisers permitted.  The context in Indonesia’s adat laws, especially in the realm on inheritance law, has been decided based on numerous normative systems alongside the Dutch Civil code.

In Singapore’s context, the effect of colonialisation has transplanted the English Common law into our legal system.  This co-existed with other customary law and religious law that were present at that time. Presently, despite the abolition of Chinese customary law, some aspects of Muslim laws continue to apply in Singapore through the Administration of Muslim Law Act and under the express protection in Art 152(2) and 153 of the Constitution.

 

The power struggle between the 2 systems could give rise to ‘forum shopping’ for individuals, resulting in inconsistencies within the legal framework. Nonetheless, the example of competition between the secular courts and adat laws in Indonesia law illustrate that the more inclined acceptance and presence of legal pluralism has resulted in more justice done to women who were entirely denied a claim under their adat laws. Conversely, the situation in Malaysia expressly eradicates such power struggles with the amendment of its Federal Constitution in 1988 under Art 121 (1A), denying the secular court’s right from intervening with the Religious Court’s jurisdiction. This sought to eliminate the ‘forum shopping’ that would be available to individuals making the actor-oriented analysis in Malaysia not so comprehensive.

One has to also acknowledge that pluralism, in its highly complex analysis, is not merely confined to two contrasting normative spheres. This limits the applicability of our method of analysis since both methods fail to recognise an extra realm that may exist within one normative sphere (‘intra-sphere’ pluralism). For instance, the complexity in Islamic law signals ‘different manifestations of the same divine will’ and is considered as ‘diversity within unity’. The primary source of law under the Qu’ran, the Sunnah that remain immutable over time whereas the Fiqh, also known as the “understanding” of the law derived from the primary sources, changes according to time and circumstances. Therefore, we have to acknowledge that the landscape of religious law has been pluralistic in some way consisting of official, authoritative versions and local variations that may exist together and ‘may be a subject of change in its interaction with the law of national states or law of custom’.  

The above examples namely prove that nations such as Indonesia and Singapore and Malaysia recognise that in their state law, non-state laws govern a significant aspect of the life of some of their citizens. However, the proposed method of analysis fails to identify the limits of what legal pluralism is – by failing to address how the involvement of colonization has altered the other non-state systems which would have an impact of the content of customary laws. This is consistent with the examples elaborated above where nation states have caused the codification of customary laws by legislating on it. The significance of custom, like Hindu laws, were often oral, diverse and not legislated. Although non-European centric nations being more towards legal pluralism contrary to Western nations like Australia or Canada, the fact that national legislation was employed, goes against the true nature of legal pluralism that acknowledges the diversity between the processes and norms of the system. For in India, what is officially Hindu law is a code made by the British Colonial government. By accepting the basic definition of legal pluralism, which does not require recognition from the state for such laws to exist, the proposed method of analysis has gone against this fundamental principle.

Despite its limitations, this mode of analysis still enables one to formulate a macro opinion of legal pluralism by functioning as a condusive framework in a general analysis of the interaction between the 2 normative spheres.

V. State systems vs. Economic/Capitalist Sphere

Riding on the tidal wave of economic globalization, the most powerful contemporary impetus and penetration of new norms is taking place through the economic/capitalist normative system. However, the development in this system cannot be effected, unless the state, the official catalyst agent in any given society, recognizes and gives it due response.

CIETAC’s case study exhibits how corruption faulty regulation and systemic inefficiency of a government, coupled with conflicting traditional norms of society, may make incorporation of a separate economic system difficult, time-consuming and, sometimes, impossible. China has ratified the New York Convention in 1986, leading to a perceived ease of enforceability of arbitration awards. In reality, the enforcement of arbitration awards remains problematic. A tenaciously guarded culture of local protectionism, delay and procedural hurdles arising from the lack of legislative clarity, and deep-rooted corruption practices, have been identified as factors contributing to the legal fiction of incorporation.

VI. Globalisation and the interaction between the Economic/Capitalist sphere and international ‘values’.

As official state systems become more economically integrated through globalisation with international economic bodies, they undergo more pressure to conform to a unified value system with other harmonised laws, ultimately aggregating as an international body of law. International institutions such as the World Bank and the WTO have facilitated this by regulating free and fair trade and money amongst nations.

Firstly, an informalistic, empirical explanation can be satisfied by employing Maslow’s Hierarchy of Needs. After the attainment of basic level needs, it raises an assumption that citizens will progress to desire higher levels of social welfare and rights.

The next way would be more formalistic in nature, and can be embodied by the Rostovian take-off model.  According to Rostow, the transition from underdevelopment to development of a nation, through modernisation, can be described in terms of a series of five basic stages of economic growth of varying length, through which all countries must proceed.

The common phenomenon today witnesses increasing international economic bodies employing usage of contracts and trade agreements, as specific bargaining chips to imbue an international value system into the recipient, or contracting member’s nation state. The EU for one, has expanded to its current status of a global political union from a national vision with a purely economic aim. However, its failure to include Turkey as a member state on grounds of it being a Muslim state, has spawned much backlash about its inability to separate economic issues from cultural differences. This illustrates a slow but distinct graduation of mere economic goals, to global economic platforms that carry with it non-negotiable social values.

Nevertheless, we recognise the limitations of our above arguments. Firstly, the question of feasibility comes into play: how long would these developments take to have its effects felt when the “[l]ong run is a misleading guide to current affairs…since [i]n the long run we are all dead”? Secondly, there exists a hierarchy of priorities whereby economic goals, despite its importance, may not always be the foremost consideration. Thirdly, the enforceability and nature of international law has always been a debate. The possibility of reservation and the lack of enforcement by the international bodies undermines the assumption of an effective, universal and far-reaching “International Law”.  Lastly, the premise of Rostow’s model has been widely criticized as being too enthno-centric whereby it habours a strong bias towards a western concept of modernization, and unrealistically trying to fit all economic progress into a linear system.

Despite these limitations, it is undeniable that the membrane between economic, capitalist systems and value systems has become more permeable. In light of globalisation, this convergence of normative systems looks here to stay.

        VII. Conclusion

Whether globalisation means harmonisation, or even global uniformisation of laws, rather than localization or global pluralism depends on the specific sphere, stemming from the different motivations behind the system.

In the customary and religious sphere, the future for harmonisation remains bleak. Each society is uniquely different. The Islamic law example highlights the fact that the in a religion that constitutes to diverse pluralism itself marks its uniqueness and justifies that it would unlikely harmonise with the tide of globalisation. With the state recognising that more than one official law governs a significant aspect of their citizens’ life, this reinforces the presence of legal pluralism and marks recognition of multiculturalism. The constant debate of what constitutes ‘Asian values’ may be displaced by looking at it from the perspective of legal pluralism. By acknowledging other non-state systems in the nation state, this displaces the Western hegemonic assumption that one positive state law unites all differences. Extrapolating this argument to the realm of human rights, one should similarly concede that cultural relativism might reign over the western assumption of universal universalism.

On the economic basis, there is a higher inclination for legal systems to recognize the validity of competing economic spheres, and incorporate them. Contrary to diverse socio-personal beliefs, there is a relative ease in coming to an absolute grounds in terms of economic values because of less intangible factors present. There exists a common denominator of profitability – as long as a win-win situation is ensured, the likelihood is for the national legal system to adopt the economic system into its laws, and accord it an equal status. The unequal bargaining power in most reality will see a dominant market player usually exercising its influence on a sub-servient one, working against the latter being able to adopt a mere acknowledgement stance. Globalisation has spurred on a greater urgency for integration where international investors are also keenly aware that commercial disputes often arise during the interpretation and implementation of trans-borders business agreements. Hence, the state would be compelled to integrate economically, with an expedient, global economic platform or body which is recognised widely to resolve such conflicts swiftly and efficiently.

In conclusion, legal pluralism reflects the significance of comparative legal study. The above analysis canvassed the evolution of laws, allowing close examination within each sphere comparatively to other spheres, reinforcing that a ‘pure’ legal system merely amounts to a fiction when looking at the history of a nation. However, the significance of globalisation, greater emergence of transnational and international law provides an insight as to the future of the nation’s legal system with convergence in some aspects (mostly economically) but contributing to the already dynamic nature in pluralism in others.  

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