Legitimacy of the Common Law in Post-Colonial Malaysia

Joshua Neoh, Yale Law School

Abstract

This essay will defend the common law in Malaysia by constructing a theoretical foundation upon which the legitimacy of the common law can rest in the post-colonial era. Under the classical common law theory as developed by British jurists, the legitimacy of the common law rests upon its being reflective of the ‘custom of the realm’. The central argument of this paper, reduced to one sentence, is that, in Malaysia, its legitimacy rests not on the ‘custom’ of the realm, but on the ‘pluralism’ of the realm.

The paper will begin by providing a brief analysis of the reception of the common law into Malaysia, beginning with the colonial era and culminating in the adoption of the post-colonial Constitution which endorses the continued application of the common law beyond Independence. Far from enjoying undisputed allegiance, the common law has been the site of ideological struggle and contestation. There have been, at times subtle and at other times hysterical, calls to replace the common law tradition with an entirely syariah-based legal system. This paper will present the arguments of the syariah law proponents before suggesting counterarguments that can be mounted in defence of common law’s legitimacy. The paper will show that the traditional theory of the legitimacy of the common law as well as its modern-day incarnations are inadequate to address the common law’s crisis of legitimacy. Instead of appealing to the highly problematic notion of ‘custom’ of the realm, the paper will construct an alternative theory of legitimacy that rests upon a recognition of the ‘pluralism’ of the realm.