Jurisprudence - Lesson 4

Revision to Rule Of Law

• A concept that was developed in Europe
• The idea of rule of man that evolve into rule of law
• During the periods of Kings, people believe that the king is an objectification of God, thus, possesses the Divine right to rules against other
• 'Objectification' is a product of human idea or labour

Human being dominate nature, but symbol dominate human

• Rule of man basically is just another myth and fiction to create a clear and apparent symbol of the king
• The king, hence, developed this rule by the virtue of it is a divine right of the king
• Rule of law has evolved to rule of law as myth and fiction has evolve to conceptual
• Nevertheless, rule of law is just another concept created by the modern man to enable people to be govern by a government instead of king and queen

Limitation or Challenge to the Concept of Rule of Law

1. Interpretation of law

• Judges have their own idea in interpreting the law
• This could be influence by their social and educational background, economic and political interest and many other elements and factor
• It is a discretion power of the judges to interpret the law but the interpretation sometimes may cause hardship to other based on the influence stated above
• Hence, rule of law become a set of rule that has been set by one men (judge) rather than many (legislature)
• Rule of law does not 100% guaranteed that the law will be free from bias and influence as the interpretation by the judges is open to an extra-legal factors or influence as mentioned above

2. Separation of power

• Constitutional government upheld the separation of power
• Nevertheless, in practise there are no absolute separation of power
• Thus, separation of power is something of a sham or myth to upheld the rule of law

3. Certainty of the law is an illusion

• Rule of law claim to provide certainty of conduct but it can never guaranteed it
• Example situation - Article 11 of Federal Constitution stated that every person has the right to profess any religion hi choose, nevertheless, this is not applicable to Muslim although this is not stated in the article
• In practice, no one can predict what the law is and how it is going to be applied
• The law will be decided in court and this will lead to the limitation #1
• Further, the enforcement of the law sometimes being influence with external factor such as racism

4. Conflicts between Judaical and executive view of the law

• What the executive intended in the law might be interpreted by the judiciary
• More over, executive decision to save a country might be contrary with the law, hence, create dispute with the judiciary who just want to upheld the law

5. Transplantation problem in Rule of Law

• Idea of rule of was developed in Europe
• When the idea was bring to another continent or state, rule of law will find a difficulty in adapting to the society
• Different races or places provided for a different idea on how to interpret rule of law
• Western law stresses on right as Malaysian law stresses on responsibility

6. The concept of procedural justice against substantive justice

• Law under rule of law concept is formal/procedural justice but not substantive justice
• Rule of law promote that any wrong doing shall be charged accordingly following the procedure regardless of elements or factors that contribute to the wrong doing
• Considering the element that contribute to the wrong doing will allow substantive justice that defeat the concept of law is king
• If the law will followed the concept of substantive justice, this will cause floodgate of appeal as people will used the compassion of the judge to escape punishment and liability
• Law should not be discriminate and shall be generally applicable to all
• Substantive justice usually being uphold in kadhi justice that will lead to arbitrariness

Up until now, i hope everyone has a general idea of what is Jurisprudence. I know that a lot of us think that this subject is taboo, nevertheless, always believe in what you believe in and treat jurisprudence as just another subject