Reflections on the Source of Law

My “Introduction to Legal Theory” teacher wanted us to write a “thought-piece” and respond to the readings that were provided in class. 

Introduction

Legal positivism is the idea that the existence and content of law depends on social facts. Since law has a primarily social basis, and there is no reason to believe that society will necessarily be moral, there is thus no conceptual relationship between morality and law; law and morality are essentially separate. This separability thesis thus forms the core of the Hart-Fuller debate that has so shaped Anglo-American jurisprudence.

The positivist account, basing the existence of law on certain social facts, thus requires an account of the source of law that is fundamentally social. This can be contrasted with Thomas Aquinas’s theory of law, which saw human law as having to conform to natural and eternal law in order to be valid as law in the first place.  For Aquinas, then, the source of law can be traced to God. A positivist account of law will have to trace the source of law to society.

One positivist account of the source of law is Austin and Bentham’s command theory of law. According to Austin and Bentham, the source of the law is the Sovereign: the persons with absolute de facto power. Law is thus a subset of the sovereign’s commands: those commands which are general orders that apply to a class of people or actions and that are backed up by force.

Hart rejects the command theory of law. For him, the command theory is unable to realistically capture the essence of laws, such as contract law, that create the framework for daily life. Instead, Hart introduces the idea of the external and internal aspects of law. The external aspect refers to the rules that govern outward behaviour. The internal aspect refers to the underlying rationale of law, the rules specifying the criteria of legal validity and the rules that determine when and how law changes and is adjudicated. Hart then proposes two necessary and sufficient conditions for the existence of law. Firstly, the citizens of the legal system must generally obey the external aspects of law. Secondly, the officials of the legal system must accept the internal aspects of laws the common standards of official behaviour.

The question then arises: who are the officials in the system and what distinguishes them from mere citizens? Since it is only the officials who need have an internal attitude towards the system’s rules, this question is an important one. In the ordinary sense of the word, officials are simply the agents of the Sovereign, or members of the government who help rule over society.

This leads us to the question: who is the Sovereign? It would be inconsistent for Hart to say that the Sovereign is simply the person with absolute power in society. Since officials are appointed by the Sovereign, at least in some conceptual manner, we would revert back to a command theory of law if we simply say that the Sovereign is the one with absolute power. If we did, we could simply say that the only relevant command is the one where the Sovereign appoints his officials by force, and place Hart’s entire positivist account on the foundation of a command. Yet Hart insists, “Law is surely not the gunman situation writ large”.

The issue that this essay will attempt to address is thus formed. Is there some account for “who is the Sovereign” that a) allows Hart to distinguish between a Sovereign and a mere powerful gunman; and b) does not depend on some moral claim of legitimacy in order to do so. To answer this question, this essay will examine the political philosophies of Hobbes, Rousseau and Kant introduced to us this week.

Making It Up as I Go Along

So here we are, in 2012, and I know that I have left this blog somewhat neglected for the entirety of one school semester. I promised myself that I would at least write something before the start of this semester, if only to make a muted statement that I have not forgotten about this blog, nor do I intend to shut it down or let it rot in one corner. Nonetheless, I actually have nothing very concrete or articulate to say at this point in time, so I’m just making it up as I go along.

As the New Year and a new semester at school arrives, there is a temptation to make plans. I’ve always wished to be someone who was efficient and organised, but I know that that is simply not true. Since my primary school days, every year I would resolve to make full use of the school-issued journal: to keep track of homework and set deadlines and goals and be organised. Needless to say, I have never written more than a few sentences in any of those journals.

Should I be concerned that I don’t make plans? Well, that’s not entirely accurate either. In terms of broad, general goals that serve as overarching purposes of my life, I think I have those. It’s those little plans, those plans that ensure you don’t start watching QI a week before an examination, that I lack and have always lacked.

So I guess I’ll go on making it up as I go along, having nothing else to guide me but my on-the-spot judgments, for better or for worse.

Also, I hope to start blogging more. No matter how half assed this post is, at the very least I will feel more comfortable blogging after this bar-lowering post hahaha.

Bleh, that’s all I have to say right now. With a horribly runny nose I can hardly think straight.

Before the Dive

Wow, I can hardly believe that it has been almost three months since I’ve last blogged. It’s almost as though this blog just died, but most people who know me know that this blog is never really dead haha. And of course, a post after a long time has to be a ramble.

So, here I am, just randomly writing down whatever comes into my head. No, this is not going to be one of those long winded essays that will probably gather some rolled eyes. This will just be a typical blog post where I just scribble down my thoughts quickly (before GSL starts).

Anyway, as I alluded to previously (GSL= Global Starcraft League), much of my time during this long post ORD break was dedicated to my hobby: E-Sports. Otherwise known as gaming. But really, it is a sport and I can now easily answer the question “so what hobby do you have” (which according to some law prof I can’t actually remember is an important question to have an answer to).

But of course, it is that time of my life where I will no longer be able to spend as much time as I have on my hobby because REAL LIFE is starting again soon. That means, tomorrow.

So yes, school finally starts again (after two and a half years) tomorrow and I am partly freaking out at the challenge that lies ahead.

It’s the build up, you know. For all my days as a sad little conscript, I held to the prospect of law school as a shield of sorts: a constant reminder that there is life after National Service Slavery. And now that it is finally here, there’s this fear that it will not be as awesome as I have hyped it up to be in my head for the past 2 years.

But overall, I’m quite looking forward to school. Challenge accepted.

And I can’t help but be reminded of that episode of Grey’s Anatomy where Cristina was all, “I don’t want to be in diapers. I want to HAVE to be in diapers.”

So yeah, I’ll try my best to keep my promise to myself to work my ass off and do my best. And to help me fight off my default lethargy, I’ll have to tap on the anger that I have cultivated for the past two years in the army.

That’s it for now, I guess. Hopefully I’ll get into the mood to write better posts soon. But for now, here’s just a happy little post to catch a breath before the dive.

On Compulsory Community Service

A week ago, a group of ex-VJC students and I were invited by Mr Wong, my former civics and KI tutor, to a dialogue session with some teachers. As I understand it, this session was an exercise in ethnography: the educators were supposed to hear what we had to say about the education system in Singapore, so that they could better design education for future users.

The longest, and perhaps most heated, discussion centered on the compulsory Community Involvement Programme in schools. For some reason, I felt a deep disagreement with much of what the teachers were saying about CIP. I probably differ from the rest of my peers with regard to the extent of my disagreement; my disagreement is fundamental: beyond mere execution and implementation issues.

On hindsight, I probably did not articulate my disagreements convincingly. Given my temperament, the format of the dialogue, and the unorthodoxy of my views, it was probably inevitable that I would be more provocative than persuasive. On the other hand, perhaps it was more useful that I was provocative, since it was an ethnography exercise for the teachers anyway.

The Dilemma for our Democracy

In the cut and thrust of our nation’s elections, it is difficult to navigate amongst the huge number of issues that are present at any point in time. How much weight do you attach to an argument, even if you agree with it? How do you square your disagreement with one aspect of a political party with your agreement with yet another aspect? How do you evaluate the different parties in order to decide how to vote?

In this analysis, I will attempt to focus this election into one fundamental issue which I will then discuss. I do not declare this issue to be fundamental arbitrarily: I will show the reasons why I believe this single issue to be the most fundamental.

My Personal Experiences With 3 Members of Parliament

In my 21 years of life, I have personally met three members of parliament and I would like to share my experiences. Even though each encounter was brief, the experience touched me in ways that I didn’t even know at the time.

The very first member of parliament I met in my life was the late JB Jayaretnam. The MP of Anson constituency in the 1980s, I believe no introduction of mine can do his eventful  life justice. Perhaps wikipedia will do better.

I met him when I was 15 in 2005, when a group of friends and I were at Raffles City. For those of us who don’t remember, Mr Jayaretnam was occasionally sighted selling his books at the top of the escalator leading into Raffles City from City Hall MRT.

Somehow or another, my friends and I began a brief conversation with him. I remember being quite curious because I knew who he was and of his troubles with the authorities. For that same reason, I was apprehensive about talking to him. With hair that reminded me of the mane of a lion, I was perhaps also a little intimidated by the man before me.

My Thoughts on GE2011

On my 21st birthday this 8th of May, I may very wake up to quite a different Singapore. Born a year too late, perhaps it is for the best that I am still too young to vote. This general election has been surprisingly refreshing, full of opinions from many people, clearly and freely published on Facebook and other blogs. Yet I am also torn about whom I would vote for, if given the chance.

It is my hope, then, to pen my thought processes with regards to this year’s elections. I shall hope to be as clear and comprehensive as possible. And perhaps at the end of this exercise, I will have arrived at an answer, or perhaps the vast number of voices on the internet would have helped me arrived at one.

The Economist: Go East, Young Bureaucrat

The following article was published in the 19 March issue of The Economist. I do not own this article (obviously), and I can only hope that my publishing it here can be considered fair use. This article was mentioned by PM Lee and I think it is a great article on government in Singapore. I am reposting this because I’m not sure if you require a subscription account to view the online version.

 

Go East, young bureaucrat

Emerging Asia can teach the West a lot about government

WHEN people talk about Singapore’s education miracle, they normally think of rows of clever young mathematicians. The hair-design and beauty-therapy training centres at the Institute of Technical Education (ITE) are rather different. The walls are covered with pouting models, L’Oréal adverts and television screens. There is a fully fitted-out spa and a hairdressing salon. It all seems rather more “Sex and the City” than Asian values, though the manicurists, pedicurists, cosmetologists and hairdressers toil diligently.

Asked whether he wants to go to university, the holy grail of most Asian families, a young barber called Noel replies that he would rather open a hairdressing salon. Mei Lien wants to set up her own beauty salon; Shuner would like to work in hotels abroad.

Until recently ITE—dubbed “It’s The End” by ambitious middle-class parents—was the dark side of Singaporean education. The city state streams pupils rigorously and is unashamedly elitist: one school claims to send more students to Ivy League universities than any other secondary school in the world. But such a system also produces losers—and many of the bottom third who do not make it to university come to ITE.

Letter to TODAY: Conscription is a Tax

Okay, I swear, I will start writing normal blog posts that are not letters to the press. I have  a couple of posts in mind, some even halfway written.

However, this letter was quite fun to write. It borrowed from the essay I wrote last year, and it was fun trying to tie things down to show one point concisely. Also, I was starting to get a bit annoyed with all the facebook comments about that maid carrying the NSF’s bag, even though some spoofs and photoshopped pics were really quite funny.

Dear Sir/Mdm,

I refer to the phenomenon of Full-time National Servicemen (NSFs) who prefer to “take cover”, and Mr Clement Puah’s question “Are NSFs getting soft?”. (31 Mar)

To answer that question, we should bear in mind an important observation made by Mr Thomas Gates, former US Secretary of Defence. He observed that conscription is a tax: a conscript who would volunteer for military service for $2000 a month but is conscripted at $800 a month is making a tax payment of $1200 a month, in the form of a service.

When the government raised the Goods and Services Tax (GST) in 2007, a significant number of people were unhappy with the tax. A healthy debate ensued. Yet even those who supported the tax did not call those who disagreed “soft”.

To ask the question “Are NSFs getting soft?” is to imply that it is wrong to be unwilling to pay a maximum amount of effort to the state. However, just as we sympathize with those reluctant to pay 7% GST, it is entirely understandable for people to be unhappy about being taxed.

Yours Sincerely,
Daryl Yong

 

 

Letter to TODAY: Equally Irrevocable

While I seldom respond to responses to my letters just to clarify my point, I decided to respond to this because I had a new point to make. It is quite an important one, because I feel that there is a fallacy here that several intelligent people (like Faith, as seen in her previous comments) might make.

Dear Sir/Mdm,

I wholeheartedly agree with Ms Ong that “what is good for future generations is up for debate”. (“Road building: Are other relevant authorities involved in decision?”, 7 Mar) Indeed, it is crucial for conservationists to explain how society benefits from retaining a piece of wilderness, rather than just making assumptions about the preferences of future Singaporeans.

In her attempt to show such benefits, Ms Ong argues that building a road would be irrevocable because “a sanctuary cannot be replaced once it is removed”. However, Ms Ong overlooks the fact that the decision not to build a road is equally irrevocable. The additional hours that commuters have to spend traveling as a result of the road not being built are hours they will never get back. The economic benefits that society forgoes by not having the road is continuously and irrevocably sacrificed as long as the road remains unbuilt.

Instead of relying on false distinctions between revocable and irrevocable choices, or making assumptions about the preferences of future generations, conservationists should explain the concrete benefits society can expect when good land is left undeveloped. To date, they have yet to do so.

Yours Sincerely,
Daryl Yong

Personally, I regard this response as a sign of my letter’s success for two reasons. One, she acknowledged that “what is good for future generations is up for debate”, effectively agreeing that conservationists cannot just assume preferences and have to prove that benefits do exist. Two, she qualified her letter as expressing a “personal preference”. This is great because it recognizes that the issue is one of competing preferences, hence removing the veneer of moral righteousness that conservationists tend to project. (Refer to Captain Planet: Regrettably one of my favorite cartoons as a kid.)

So far, most of my encounters with environmentalists and conservationists have largely convinced me that a piece of writing which I read years ago (back in JC) has got many characterizations of the environmentalist movement nailed down. The case for conservation seems astonishingly thin, which is why I continue to press Singaporean conservationists to provide a more reasonable case for their cause.