Realizing a moral conception of the rule of law
Subtitle: constitutional interpretation and judicial disempowerment in Malaysia
By: by Ratna Rueban Balasubramaniam.
Published: 2006
Language: eng
Number of pages: 243
ISBN-13: 9780494219027
Subjects: University of Toronto. -- Faculty of Law -- Dissertations.; Rule of law -- Malaysia.; Judicial power -- Malaysia.; Constitutional law -- Malaysia.
Other titles: Constitutional interpretation and judicial disempowerment in Malaysia
Description: Through a case study of how Malaysian and Singaporean judges who work with a written constitution containing a bill of rights nevertheless experience disempowerment in the face of official abuses of power, this thesis tries to illuminate a debate in legal philosophy about how to characterize the concepts of law and the rule of law or legality as moral ideas. This debate occurs in reaction to legal positivists who argue that there is no necessary connection between law and morality. Anti-positivists, like Gustav Radbruch and Ronald Dworkin, oppose the positivist claim and argue that the idea of justice underpins the concept of law. However, they disagree with Lon L. Fuller whose anti-positivist view is that there is an "inner morality" immanent in the efforts necessary to construct and maintain a workable legal order that can constrain the moral content of particular laws. According to Fuller, the law-giver's duty to respect certain principles of legality, that laws are public, general, intelligible, capable of obedience, stable over time, generally prospective, non-contradictory, and that official action match declared rule, limits the law-giver's ability to use law for injustice thus making law a moral concept. However, Radbruch and Dworkin do not think that respect for such conditions, which appear merely procedural and fully compatible with the enactment of immoral laws, suffices to establish law as a moral idea and to refute the positivist's argument. The case study shows that judges experience disempowerment in the face of abuses of power, that is, they are unable to interpret laws to express legality or to invalidate laws with no foundation in legality, when they treat moral values explicitly set out in a written constitution as the entire basis for protecting legality and overlook the internal morality of law. The thesis thus argues that Radbruch and Dworkin underestimate Fuller's position and should see that law's aspiration to justice links to the internal morality of law.
Notes: Source: Dissertation Abstracts International, Volume: 68-01, Section: A, page: 0323.

Thesis (LL.M.)-University of Toronto, 2006.

Includes bibliographical references (leaves 227-243).

Electronic version licensed for access by U. of T. users.