HWA CHONG INSTITUTION

An Examination of the
Effects of Different
Judicial Systems on the
Crystallization of Moral
Knowledge in Singapore
GCE ‘A’ Level : Knowledge and Inquiry
Independent Study
Cedrych Beh Zhi Jie
/2010

Draft 6
CRIMINAL LAW AND THE CRYSTALLISATION OF KNOWLEDGE

Law pervades much of what we do and governs many human interactions. It places limits on
behavior and establishes boundaries. In a sense it can be said to govern and shape our morals;
creating knowledge within the society in the process.

This paper aims to bring to light potential differences between the moral knowledge formed by a
jury system and a judge-only system. Furthermore, it will attempt to ascertain which form of
knowledge holds the most epistemic truth-value, thus deciding which system is preferred; in a
Singaporean context.

Firstly, however, we will have to address a pertinent query on what is the purpose of the Law is and
how it, if at all does, affect society.

Criminal law involves prosecution for an act that has been classified as a crime. Its primary objectives
are to achieve justice through the establishment of criminal liability and punishment, and act as
deterrence against future crime.1 It is the latter that we will be focusing on: its effect on the
formation of moral knowledge in society.

Law invariably creates knowledge. When a judge passes a sentence, punishes a criminal, makes a
judgement: She/he is dictating a certain mode of action in the society. This is especially prevalent
when you consider countries that practice Common Law2 like Singapore. Singaporean judges are
given authority to decide on the outcome in a courtroom if there is a lack of coherence with the
Penal Code3 and there is a consensus that precedential cases are fundamentally different from the
one at hand. The judge therefore is allowed to create a precedent of his own, that will be used for
future reference in other cases. This decision then has the potential to shape moral knowledge in
Singaporean society.

Considering a Real-life example:

1
Cornell Legal Information Institute (LII), Wex, Web-dictionary and Encyclopaedia. Obtained from
“http://topics.law.cornell.edu/wex/Criminal_law”
2
Common law is law developed by judges through decisions of courts and similar tribunals (also called case
law), rather than through legislative statutes or executive branch action. A "common law system" is a legal
system that gives great precedential weight to common law, on the principle that it is unfair to treat similar
facts differently on different occasions. In cases where the parties disagree on what the law is, an idealized
common law court looks to past precedential decisions of relevant courts. If a similar dispute has been
resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is
known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all
previous cases (called a "matter of first impression"), judges have the authority and duty to make law by
creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

3
The Penal Code of Singapore sets out general principles of the criminal law of Singapore, as well as the
elements and penalties of common criminal offences such as homicide, theft and cheating.

2
A court case emerged with a Japanese Anime Studio, Odex, demanding several local Internet Service
Providers (ISP) release client information because of copyright infringement. All precedential cases
have been judged to be largely different due to the nature of the infringement cited. The judge
eventually ruled against Odex.4 Observers predicted that the High Court's decision would set
a precedent for online privacy in Singapore by making it more difficult for copyright licensors to take
legal action against downloading.

In the court’s ruling, the judge(s) had invariably created knowledge. They sent a clear message to
Singaporeans that copyright infringement could be tolerated under certain circumstances due to
larger concepts dealing with the liberty and personal privacy. What are the implications? Some
Singaporeans have no moral qualms about flouting intellectual property laws whilst on the internet,
i.e. they do not differentiate between the criminality of an act and a moral ‘wrong’.

4
Oral Grounds of Decision for Originating Summons 159/2007 ODEX Pte Ltd v Pacific Internet Limited
23 August 2007, 9.30 am at Chamber J before DJ Earnest Lau. Retrieved from
http://siewkumhong.blogspot.com/2007/08/odex-pte-ltd-v-pacific-internet-limited.html

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METAETHICAL MORAL RELATIVISM, THE SOCIAL CONTRACT AND THE LAW

Personal morals can be seen to be largely influenced by society considering Harman’s relativism and
Locke’s social contract.

Metaethical Moral Relativism postulates that the truth or falsity of moral judgments, or their
justification, is not absolute or universal, but is relative to the traditions or practices of a group of
persons. With respect to truth-value, a moral judgment such as ‘Marital Rape is morally wrong’ may
be true relative to one society, but false relative to another. Likewise, with respect to justification,
this judgment may be justified in one society, but not another. 5

Harman6 argued that a moral judgment: a person ought to do J (an “inner judgment”) implies that
the person has motivating reasons to do J, and that a person is likely to have such reasons only if he
or she has implicitly entered into an agreement with others about what to do. Implications of
Harman's relativism arises as it is supposed that the relevant motivating reasons are not universal
and so probably arose from an agreement that some but not all persons have made. In this sense,
moral disagreement is an important feature of the argument.

Also considering Locke’s Social Contract Theory which postulates that political society comes into
being when individual men, come together in the State of Nature and agree to each give up the
executive power to punish those who transgress the Law of Nature, and hand over that power to the
public power of a government.7 Having done this, they then become subject to the will of the
majority. In other words, by making a contract to leave the State of Nature and form society, they
make “one body politic under one government” and submit themselves to the will of that body.
Having created a political society and government through their consent, men then gain three
things: laws, judges to adjudicate laws, and the executive power necessary to enforce these laws.

If a community decides to criminalise a certain act (enact a Law), I, being a member of that society,
will have to agree that the act is worthy of criminality, even though I might not have had justification
for that belief at first. My definition of criminality will shape my own moral beliefs as I adopt
society’s justifications for moral acts; i.e. by being bound by the social contract, I have implicitly
agreed to the justifications that make J correct. I might not be able to differentiate between the
criminality of an act and a moral ‘wrong’.

5
Stanford Encyclopaedia of Philosophy, Moral Relativism. Obtained on 23/07/10
http://plato.stanford.edu/entries/moral-relativism/
6
Harman, G. 1996, Moral Relativism and Moral Objectivity, Cambridge MA: Blackwell Publishers. 3-64.
Harman, G. 2000, Moral Relativism Defended, in Harman, Explaining Value: And Other Essays in Moral
Philosophy, Oxford: Clarendon Press. 3-19.
7
Locke, John. Two Treatises of Government and A Letter Concerning Toleration. Yale University Press (2003).

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In Singapore, we may witness this problem at hand. The Singaporean government has constantly
reiterated its stance on the Courts being a Moral Authority. Quoting Deputy Prime Minister Wong
Kan Seng “If we (the courts)…allow vicious falsehoods to perversely masquerade itself as the truth,
we will lose our moral authority and with it, our effectiveness to achieve our mission to keep
Singapore safe and secure.”8

This is a key point in the government’s view of the law system: it acknowledges its authority over
Singaporeans and wishes to shape their morality for the better, generating a form of societal moral
knowledge. We may visualise this in the form of laws or punishments passed by the Courts.

A good example would be laws advocating Capital Punishment. Drug-trafficking/possession,

kidnapping and insubordination are but just a few crimes that you can hang for in Singapore. Some
of these cases have been highly publicised in the state media, further enabling the process of
knowledge formation by increasing awareness of the dire consequences of such crimes.

In January 2004, the Ministry of Home Affairs issued a response to Amnesty International's report,
defending the nation's policy to retain the death penalty, predicating its arguments on, amongst
others, the following grounds:

-The death penalty has been effective in keeping Singapore one of the safest places in the world to
work and live in. 9.

This concept of law as deterrence can be said to stem from Singapore’s predominantly Chinese
societal values.10 By this form of punishment and legislation, it is hoped that Singaporeans are
deterred from ‘immoral’ acts and conform to this moral authority.

But who decides what this authority is? Society or individuals?

8
The Straits Times, Singapore, 4th August 2010, “Singapore must defend judiciary”
9
Ministry of Home Affairs. 2004-01-30. Retrieved 03/07/10. http://app3.mha.gov.sg/news_details.aspx?
nid=474.
10
Chang, W. C., Wong, W. K. and Koh, J. B. K. (2003), Chinese values in Singapore: Traditional and modern.
Asian Journal of Social Psychology, 6: 5–29. doi: 10.1111/1467-839X.t01-1-00007

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JUDGE OR JURY?

Given that the court’s ruling has such a large impact on the law and eventually society itself. Can
one man bear such responsibility?

The Singaporean Law system functions basically like the English system. England has a wealth of
judge-made law, since English judges, over a period of many centuries, made law when parliament
did not act.11 This outlines the basic foundations of common law and Stare Decisis, which many ex-
colonies of the British Empire, including Singapore, practice till today. Most law systems that appeal
to Stare Decisis allow defendants a right to trial by a group of peers (jury).

One important distinction between the Singaporean and English court systems is the presence of the
jury. The Jury system recruits twelve laymen, chosen at random from the widest possible population;
it convenes them for the purpose of the particular trial and permits them to carry on deliberations in
secret and to report out their final judgment. 12

This difference in law systems means that court decisions are not only dictated by the judge, but also
a pool of laymen; therefore having a significant impact on the knowledge formed.

Considering two similar cases from different law systems

11
Duke Law, Library and Technology, Research Help, Research Guides, English Law. Retrieved on 02/07/10
http://www.law.duke.edu/lib/researchguides/english
12
Constitutional Rights Foundation Chicago, ‘An Introduction to Trial by Jury’. Retrieved on 02/07/10
http://www.crfc.org/americanjury/introduction.html

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A Trial under the jury system in American courts:

John Wayne Bobbitt and Lorena Bobbitt were an American couple, whose difficult relationship
escalated when Lorena severed John's penis with a knife. Lorena stated that John sexually,
physically, and emotionally abused her during their marriage. Lorena's defense attorneys maintained
that John's constant abuse caused Lorena to eventually "snap" as she was suffering from clinical
depression.13 The jury had found Lorena "not guilty" due to depression causing a sudden impulse to
wound her husband. As a result, she could not be held liable for her actions. 14

The jury here had sent a clear message in this highly publicised case: battery even with malicious
intent is not culpable by law if one is suffering from clinical depression. The knowledge created here
is markedly different from the case below.

A Trial under a non-jury system in Singaporean courts:

A 68-year-old woman, Fong, was sentenced to 12 months jail for poisoning her husband of age 70.
The court found her guilty of sprinkling ant killer containing arsenic in her husband's food and drinks
between 2004 and 2005. The accused told the court that she did it because she could not tolerate
his acts of violence, physical and mental abuse during her 31 years of marriage. 15

The judge here had found her guilty of a serious felony, even though she was suffering from clinical
depression as was the case with Lorena Bobbitt. The message formed here simply stated that a
person’s mental health cannot be used to justify a malicious crime.

Acknowledging that these two cases are very different in terms of context and cultural backgrounds,
we still however can draw several conclusions.

Supposed Lorena Bobbitt was not trialled by jury, but rather by a middle-aged Caucasian Male judge.
Would he have been as sympathetic to her claims of mental distress? Or if Fong had been allowed
trial by her peers: a jury comprising of mostly elderly women. Would they have acquitted her
instead, after understanding her emotional state?

These questions have no easy answer but they give a good reflection of the distinct differences in
judgements made by a judge and jury, thereby showing us the potential differences in knowledge
formed should Singapore opt for a jury system instead.

COMPETENCE, COHERENCE AND FEASIBILITY

13
Smolowe, Jill & Peterzell, Jay. "TIME Magazine-Swift Sword of Justice". Retrieved 23/06/10.
http://www.time.com/time/magazine/article/0,9171,979640,00.html
14
Biography.com. "Lorena Bobbitt Biography". Retrieved 24/06/10.
15
Channelnewsasia.com, 12 months' jail for woman who poisoned husband with ant killer, Ong Dai Lin/Lin
Jiamei. Retrieved 03/08/10.
http://www.channelnewsasia.com/stories/singaporelocalnews/view/1059365/1/.html

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To select for the most suitable law system, we have to establish which of the knowledge formed
(from either system) is more certain using several criteria. First, analysing the competence of the
persons making the judgement. Secondly, if the knowledge formed is coherent with or is a reflection
of societal moral values. Lastly, to see which system is most feasible in actuality compared to theory.

Logical Justification through Competence as a criterion for Certainty

The argument for Competence stems from critics who scorn the inability of juries to pass ‘proper’
judgements, generating uncertain knowledge. Critics argue that certainty can only stem from
justification based on hard theory or logic, that which the jurors apparently lack. Quote: “The jury
system,” Mark Twain famously observed, “puts a ban upon intelligence and honesty, and a premium
upon ignorance, stupidity, and perjury.” 16 This statement, although harsh, does reflect several
contreversial landmark decisions of many a jury. Juries have been criticized as being incapable of
assessing technical data, vulnerable to emotional appeals and slogans, and compelled to mediocrity
by filtering out of well-informed would-be jurors during the voir dire. 17 18 Therefore the knowledge
formed by juries would not be sufficiently justified using logical means, rendering it uncertain.

Judges, on the other hand, have had the benefit of a proper education into the philosophies of
Jurisprudence, and the experience from previous cases. Thus the judge’s definition of criminality
could be taken to be more certain and consistant, mainly due to his methodological and logical
processes used in making judgements.

In the Singaporean context, by measuring competence of common people using the education
background of average adults, we see that Singaporean adults average about 7 years of education.
This is meagre compared to the United Kingdom, 9.4, and the United States, 12. 19 One can possibly
conclude that an average Singaporean adult is not very competent if held-by this criterion, and
therefore the better educated judges then should be favoured.

Coherence to Societal Moral Knowledge as a criterion for Certainty

16
Mark Twain, Roughing It, Pp 57-58
17
Voir dire: In the United States, it refers to the process by which prospective jurors are questioned about their
backgrounds and potential biases before being chosen to sit on a jury.
18
Randolph N. Jonakait, The American Jury System, New Haven: Yale University Press, 2003. 384 pp.
19
UNESCO: Average years of schooling of adults is the years of formal schooling received, on average, by adults
over age (Data Source: Barro-Lee Data Set www.worldbank.org/html/prdmg/grthweb/ddbarle2.htm)

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Proponents for coherence would maintain that a judge is just but a man in an entire community. The
ruling he issues is solely based on his own interpretation of the law. In comparison to a group of 12
jurors, the judgement he passes are statistically under-representative of what the society thinks.
Proceeding in an ideal situation, with everyone in the population given a vote, would be hugely
impractical. Therefore, a jury can be taken as a moderately accurate representation, a compromise,
which is still be better than a judge; given that the knowledge formed would more likely conform to
social reality, ensuring its applicability and certainty.

Further, as discussed previously, in metaethical moral relativism, different groups might have
different views on moral truths due to differences in justification. However, because of the societal
contract, we conform to legislation, shaping our justifications. Thus, it would seem best if the Law is
a reflection of society’s morals, while society’s moral knowledge is derived from the Law: forming a
self-assured cycle of certainty and truth, with its own checks and balances, enabling moral
knowledge formed to be certain and a reflection of societal reality.

The Singapore non-jury system fails this criterion of coherence. Many would argue that the moral
knowledge formed from the Singaporean courts should be derived from Singaporeans themselves to
reduce the possibility that certain individuals would take advantage and influence the Courts. This
criterion then clearly favours the jury in a Singaporean context.

Measure of feasibility as a criterion for Certainty

Lastly, we consider the feasibility of either system of law. A theory can only be considered true
insomuch as it can accurately represent reality. In theory, a jury is composed of a random and fair
sample of 12 persons from the system’s jurisdiction; an accurate representation of societal views.
However, we can find many discrepancies. There is no perfect estimation of a jury to a community:
Minority representation, different religious beliefs, generation gaps, income strata groups all
conspire to make the process of fair sampling an impossible task. These discrepancies create a
disjunction between the certain knowledge we have in theory and the knowledge formed in reality.
Hence, undermining the truth-value of the knowledge created by juries in reality. Also we have to
account for Voir dire, the process of jury selection. Prosecutors and the defense will pick the
potential jurors that will be more sympathetic to their causes, thus rendering the entire concept of a
random sample void.

This is especially problematic in Singapore, with Egalitarian Theory being a major theme in the
nation’s roots. Any deviation from this theme, in the form of a mis-representation of a minority
group in court, can lead to dire consequences for the fragile, young societal frabric. 20 21 Therefore
making a jury system largely problematic and unfeasible for Singapore.

20
Asad Latif (2010), Lim Kim San: A Builder of Singapore, Institute of Southeast Asian Studies

21
Prime Minister’s Office Singapore, Prime Minister Lee Hsien Loong's National Day Rally Speech 2009, Social
Harmony. Retrieved 12/08/10.
http://www.pmo.gov.sg/News/Messages/Highlights+of+PM+Lee+Hsien+Loong+s+National+Day+Rally+Speech
+2009.htm

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The concept of a judge on the other hand may seem to be more feasible. A judge is a well learned
man who listens to evidence provided by both parties and comes to a judgement based on his
understanding of the written law. However, judges are ultimately still human and it is improbable for
them to not be susceptible to emotions and their own value system, not to mention corruption
whilst dealing our judgements.

Hence, in this criterion, neither system seems more feasible than the other, it thus cannot be used to
differentiate the truth-value of knowledge formed.

CONCLUSION

With the relationship between the Law and the formation of societal moral knowledge being drawn,
it increasingly leads us to ponder and worry about who has control over the Courts. This is especially
problematic considering Singapore’s non-jury law system; as we can observe through the differences
in knowledge formed when we consider Bobbit (jury) vs Fong (non-jury). By selecting for knowledge
based on its certainty: an analysis on both kinds of knowledge formed by a jury and a judge law
system was made. In the argument for competence, judges were definitely favoured given their
superior education as compared to the average Singaporean; thereby making their judgements and
thus knowledge formed more logically consistent and assured. The argument for coherence to
societal moral values highlighted the fact that by not allowing a society to decide its own moral
knowledge formation, there was a danger of misrepresentation by certain judiciaries. This argument
strongly calls for the checks and balances in forming the Law, enabling moral knowledge formed to
be certain and free of prejudice. The last criterion about feasibility, showed that neither a judge
system nor the jury system was demonstratably superior.

As such although it would be impossible for anyone to conclusively agree that either system is better
based on this short review, I would suggest that a jury system for Singapore should not be
disregarded, based on the simple fact that ignoring society’s view on deciding the formation of its
own moral values could be detrimental.

3299 words.

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