A&O Shearman, Singapore
26 June 2024, 6pm to 8pm
VK Rajah SC:
Let me start off with climate.
Lee Kuan Yew said that the greatest invention in the 20th century was air-conditioning.
There is a cleavage between arbitration and mediation.
When we go back, the first institutionalised form where an arbitration award could be enforced was probably was a result of the 1598 English Arbitration Act.
The first legal system was the English system.
But let us look further back and start off with human nature. I think the world’s oldest profession is not what some chauvinist will say, but that of a conciliator, a peace maker. You would need people to reconcile differences. That was not institutional. Institutional justice has a much more recent history. This is factual. For the last 7 years I had time to pursue my interests, and one of my interests was exploring the past. I was born in a British colony in 1957 so the history I learnt was that Greece was the centre of the world and the British inherited it. The British historians or Malayans who were taught by them wrote the history books (laughs).
What we knew about that was written by a Western archaeologists. But China in fact has rich documentary records, and if one were to embark on the history of conciliation then we need to start with the understanding of when did institutionalised justice start. When did different civilisations have court systems. That would exist parallel to the lay people to settle their differences. Common sense tells us there must have been a structure.
So I shall turn to the two civilisations in Asia. There were 4 great civilisations, Mesopotamian, the Egyptian(3,000 – 30 BC), in India you would have the Indus Valley Civilisation that would go to the Ganges, and these civilisations grew exponentially.
So the civilisation in India, 5,000 BC, there are records to show that they were advanced. Just as the Egyptian were building pyramids, they were picking up.
The Chinese by 1,600 BC they had a Court system in the Shang Dynasty. Pre-dating that there was the Xia Dynasty about 2,200 BC and they had structures, they had Court systems. They had officials because in the city you need these systems. Outside of these systems, how were disputes resolved. The records show that for the Chinese during the Han and the Tang dynasty, Court officials would often refer litigation to conciliation processes.
Let me talk a little about these processes in China, India and South East Asia.
We are taught in Singapore that the British brought their legal system to Singapore. We benefited. We would not be here today if not for colonialism. All of us are immigrants, either first generation or 2, 3 generations ahead. The key thing to remember is that between 700 AD to 1,100 AD there was the Srivijaya Empire, and that included Indonesia, Malaysia and went up to Thailand. And that was Buddhist.
Then subsequently the Majapahit Empire from 1293 – 1527.
Then the Portuguese arrived in Kuching and gradually they found their way here.
At the same time there was a great change.
There is a book written by Oxford University legal anthropologist, Fernanda Pirie, The Rule of Laws published in 2021.[1]
So she says that there are 3 foundational legal systems and the aspects of these legal systems are found in every single legal system in the world.
The first foundational system is Mesopotamian, about 2734 BC.
I thought Judaism preceded this but she asserts that they were informed, so the Mesopotamian code was revolutionary and groundbreaking as it gave rights, and all Western systems, Greek, Roman and in Europe are derived from this conceptual system.
The second great legal system was Chinese. The emphasis was on order. There was the legal philosopher, Shang Yang, whose foundational work for the school of Chinese legalism (Fajia (Chinese: 法家) was adopted by the Qing Dynasty which did not last long but resurfaced when the Hans let the Tangs move forward.
The third was the Hindu legal system based on Dharmaśāstra. It was mainly aspirational and based on cosmological aspects and an appeal to the better senses of people.[2]
So when you look at today’s laws you have a little bit of everything.
You have laws to give rights to people, you have laws to establish order, and there are laws that encourage you to try to encourage people to behave properly. We have such laws in Singapore, some may call it social engineering, so we flush our toilets, and don’t urinate in lifts.
Coming back to conciliation, the Chinese, at least from 500BC post Confucius adapted a system from Li Kuibased on deterrence. In essence, the Confucian approach to life is harmony. Family was the central unit and the State was a larger unit, and the Emperor had a mandate from heaven.
What was interesting is that China has gone back to Confucianism during the cultural revolution. Temples were damaged and torn down.
In India, there was a formal system of conciliation based on principles but how were they enforced? From what one can decipher, enforcement was usually not an issue, based on authority and respect shown to the people deciding it. Probably different systems from trade disputes, family disputes. That system was ever present in the Chinese community.
The Indian civilisation had similar structures, the Puru Clans, the Kuru Kingdom, and then the PanchalaKingdom which is a village system where decisions were made.
In Indonesia and Malaya, there was the Penghulu who would decide disputes, and if there are disputes that still could not be resolved then they would go up one level to the rulers, like the Temenggong.
But there were always authorities between the rules and the people to resolve disputes.
So there was institutional justice usually for crimes, and resolution of civil disputes primarily between parties.
It is wired into human nature, because we want to resolve disputes efficiently, cheaply and fast. This has always wired into us. There was no Big Law as far as I can see. Fairly recent origin.
In Western countries they had attorneys. In China, they had trained scholars who passed exams who either dispensed the law or advised on the law.
The need to find solutions and the need to keep the peace is wired into us. That is why I think in today’s world the way conciliation or mediation in my view is always the preferred route. The best solution is when both parties are happy, as neither of them got what they wanted.
They want disputes resolved efficiently and most importantly, fairly. And that my friends has been an ever running theme, necessity of our civilisation, That goes back many cultures, many millennia, long before the short history of arbitration was written.
The key thing was the authority of the decision maker, as it was respect which was important. The societies continued to function, and hundreds of thousands of people living there as far as records show in China and India, Greece, Rome and Mesopotamia.
[1] See also her YouTube Interview at https://www.youtube.com/watch?v=VVGJOqw38ZI
[2] The texts include discussion of ashrama (stages of life), varna (social classes), purushartha (proper goals of life), personal virtues and duties such as ahimsa (non-violence) against all living beings, rules of just war, and other topics.