ASEAN Law, the ASEAN Way and the Role of Domestic Courts

ASEAN Law, the ASEAN Way and the Role of Domestic Courts

Description

The giving of the 10 Commandments, as an historical reality or as a founding myth, is considered a momentous occasion in the history of law the importance of which transcends the cultures which are part of the Abrahamic religions—Christianity, Islam and Judaism. Little noticed, however, is the singular fact, that before Moses ascends Mount Sinai to receive the Law he has an encounter with his father-in-law, the Midianite Priest Jethro. Jethro, an icon of wisdom, advises and then instructs Moses that it is essential that a system of courts (not just one court!) be put in place a system resembling that which we find till this day in practically all civilizations—lower courts, intermediate courts and supreme courts. Grant me the singularity of this sequence of events: Courts and judges are to be put in place even before the Law is given. Singular but neither surprising nor shocking. For what is law if there are no courts to interpret it, apply it, enforce it? What are legal obligations if there are no remedies in case these obligations are breached? There are some extreme manifestations of this, ontological, relationship between law and courts. In the Common Law countries at law faculties students essentially learn the law through a study of judicial decisions, leading students to an overly court-centric view of the law. The teaching of law in Civil law countries adopts a more balanced approach putting the norms themselves, constitutions, legislation, administrative law at the core of the curriculum, but even there courts are not epiphenomenal but central to the overall understanding of law and the legal system, an indispensable component. Thus, thousands of contracts, whether simple (any purchase of a car of that matter a loaf of bread or a bowl of rice) or complex (mega mergers of multinationals), are made day in and day out. Most are executed faithfully. Only a tiny fraction of these will ever end up in court. But it is the existence of courts, always there, promising and menacing at the same time, which accounts for this record of faithful compliance. I would go as far as saying, given the human condition, and aware that not all legal philosophers will agree but confident that all practicing lawyers and judges will, that to imagine law without courts, is to imagine something other than law.

Source Publication

The ASEAN Law Conference 2018: A Compendium of Speeches, Papers, Presentations and Reports

Source Editors/Authors

Justin Yeo

Publication Date

2019

ASEAN Law, the ASEAN Way and the Role of Domestic Courts

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