Legal Systems as Legal Transplants

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. Legal systems, as approaches rather than rules, can accommodate the local contexts of where they are being transplanted to, but to different extents depending on the legal system.

For example, the common law's emphasis on facts and practicality will likely better facilitate adaptation to the local context, but to import civil law, one must attempt the enormous undertaking of adapting Civil Codes to accommodate local issues. Characteristics of the Common Law System Three aspects of the Common Law legal system will be used for the purpose of comparison: the presence of judicial precedence (and the doctrine of stare decisis5), the existence of the rule of law and an adversarial fact finding process during trial. Common Law system develops the body of law incrementally when courts apply legal principles to fact situations.

These judicial decisions6 form substantive law, or case law. The supremacy of law, where no person is above the law, shows that the rule of law is in existence. Under a Common Law jurisdiction, the rule of law ensures fairness and justice. An adversarial fact finding system is characteristic of a Common Law system as opposed to a Civil Law one. When a case is brought to trial in a Civil Law court, the judge plays an active role in inquiry of the factual matrix, whereas a Common Law judge seems to be more of an impartial adjudicator, giving the final nod to the winning counsel.

This paper investigates the effects of historic, social, political and economic factors and the extent of reception of the Common Law system in light of these three characteristics. A Brief History of Singapore Pre-colonial Singapore was under the rule of the Johor Sultanate7, subject to adat and Islamic laws in place in Peninsula Malaysia. Beyond these customary and religious laws, there was no formal legal system. Colonisation brought with it modern legal development. Ceded to the British and placed under the British East India Company, Singapore established a court system in 1826 under the Second Charter of Justice.

Existing laws were effectively replaced with the Common Law system to facilitate British commerce. Such economic practicality was later advocated by Singapore upon independence, where the practical and flexible Common Law system already in place was retained. While Singapore an autochthonous substantive law has developed since, her legal framework has scarcely been altered. It wears much of the badges of Common Law, having a body of judicial precedence, the doctrine of stare decisis, a court hierarchy and an adversarial fact finding system.

A Brief History of Malaysia Like Singapore, pre-colonial Malaysia was subject to adat laws8 and Islamic syariah law under the Sultanate of Melaka. The Common Law system arrived in Malaysia with the British colonisation of the Straits Settlements9. While Malaysia was never fully colonised by the British, their legal framework was nevertheless adopted for upon independence. In Malaysia, the existing laws remained intact even with the advent of the common law. The syariah courts, an independent court system, continues to exist to govern religious matters.

These, along with Native courts that apply native customary law, are supervised by the state and federal courts, creating a distinctive dual justice system with the jurisdiction. In recent years, the rise of Islamic banking and insurance has warranted the creation of a special bench on the high court to deal with such matters. While Malaysia has a similar history to Singapore, its reception of the Common Law system has been markedly different. A Brief History of Burma/Myanmar Pre- colonial Burma was a civil law jurisdiction.

Native Burmese law took the form written law-texts (called dhammathats), interpreted and applied by specialist lawyers (called shene). Burmese law was not only a developed formal legal system; it was also a substantive law focused on alternative dispute resolution rather than formal litigation. Sadly, the advent of the British effectively destroyed the pre-existing Burmese Law, relegating its application solely to religion, marriage and succession, similar to Singapore and Malaysia. The common law system did not perish upon Burma's independence in 1948, despite the strong nationalist sentiment.

It was sought as the framework upon which the damage inflicted on its legal system by colonialisation was to be repaired. However, the military coup of 1962 saw a radical redesigning of the legal system – a political move towards socialism disguised as a move away from common law towards traditional Burmese Law. The SLORC10 military coup in 1988 put Burma under martial rule. While the laws and legal system largely remain intact, under the rule of man there is little hope for a fair trial.

Verily, for a country once colonised by the British, Burma remains the furthest removed from the Common Law family, failing even the test of the rule of law. Socio-cultural Factors and Their Legal Implications We will now examine how the different social structures of countries in the region influenced their reception of common law system and draw comparisons between them. Multi-culturalismin Society as Opposed to Unified Social Structure During the reign of Henry II in England, the cultural diversity there mirrored the socio-cultural situations in Southeast Asia.

The law, then, was administered by local courts which applied various local customary laws developed by different counties. The common law system was born out of these, in a bid to achieve greater uniformity of law. Similarly, largely due to trade and immigration, multiculturalism11 was evident in Singapore and Malaysia. Cultural divisions created problems in dispute resolutions when questions arose as to what, or whose standards ought to apply to serve justice. Colonial masters exploited the lack of a consolidation of a unified legal system to impose their ideals of fairness.

This lack of homogeneity allowed for ease of transplantation of common law. Even so, the common law had to be informed by the local context. Social situations prevented judges from rendering judicial decisions consistent with English common law as prevalent Chinese, Muslim and Hindu customary laws had to be respected and preserved. Transplanting the common law system into Burma was exteremely onerous because of its pre-existing unified social and legal structure. The British exploited their power to eradicate the local structure, making common law the dominant legal system.

England-trained lawyers replaced shenes and, Burmese knowledge of dispute settlements and Burmese courts were legislated into oblivion. 12 These changes faced abrasive effects within Burma. In Singapore and Malaysia, colonial judges retained customary laws. In Burma, the pre-existing legal system was relegated to narrow customary laws. Buddhist Law guided British courts when dealing with succession, inheritance or marriage in cases where both parties were Buddhists. 13 There, the common law system had only to accommodate Burmese Buddhist Law as a native custom, and was scarcely affected otherwise.