ASSESSMENT 3 JURISPRUDENCE 2

QUESTION:

Ali is frustrated after reading some newspaper reports on corruption cases in Malaysia. As a law
student, he wondered why, despite the clear provisions of the law regarding corruption, corruption
cases have not stopped in Malaysia. He wondered whether there was something wrong with the law
and the legal system.

Advise Ali in the context of postmodernism jurisprudence.

ANSWER:

Post modernism is one movement or thinking of jurisprudence that is indefinable is a truism. Jean-
François Lyotard defined philosophical postmodernism as incredulity towards meta narratives.
Metanarratives that he meant is like a unified, complete, and universal. Postmodernist thinkers
developed concepts such as difference, repetition, trace, and hyperreality to subvert "grand
narratives", univocity of being, and epistemic certainty. Postmodern philosophy questions the
importance of power relationships, personalization, and discourse in the "construction" of truth and
world views. Many postmodernists appear to deny that an objective reality exists and appear to
deny that there are objective moral values. Postmodernist philosophers in general argue that truth is
always contingent on historical and social context rather than being absolute and universal and that
truth is always partial and "at issue" rather than being complete and certain.

Concept of power and domination is central to the post-modern theory. Neitzsche and Foucault
have dealt expensively with the subject. Foucault state that power is not fixed but circulated. Power,
to him is something which functioning in the form of a chain. It is employed and exercised through a
net like organization. There are always people in the position of simultaneously undergoing and
exercising this power.

According to Dr Sheela Rai (n.d.), the whole concept of enforcement of law and enforceability
reminds us that there is no such thing as law that does not imply in itself. 1In the analytical structure
of its concept, the possibility of being “enforced,” is applied by force. There are laws that are not
enforced, but there is no law without enforceability. There could be no applicability or enforceability
of the law without force regardless of it being direct or indirect, physical or symbolic, exterior or
interior, brutal or subtly discursive, and so forth. The application of law would mean enforcement of
law whose origin is violence. Demands of justice may often be different from what is ordained by
law. If a judge decides according to justice then he would not be enforcing the law and if he enforces
the law, it would be an unjust application of law. Justice requires separate assessment and
evaluation of demands of justice in each case on the basis of facts. Application of law, according to
Derrida, is based on calculation while justice requires qualitative weighing of various factors in
individual cases. Therefore, there is no such thing as justice according to law because law is nothing
but force (or violence) and demands of justice may be different from the applicable law at the time.
1
Dr Sheela Rai (n.d), Advanced Jurisprudence: Post Modernism, retrieved date June 19, 2020 from
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/01._advanced__jurisprudence/19._post_mo
dernism/et/8126_et_et.pdf
Moreover, law is same for everyone or general, and that requirements of justice would differ in each
individual case.

Referring to Ali’s case, he gets frustrated when he sees the news about ongoing corruptions that
exists in Malaysia. In the context of post-modernism, by looking at the concept of enforcement of
the law, although Malaysia have a provision concerning corruptions, it still occurs because of there is
a lack of enforcement of the law itself. Applicability of the law is not in force due to lack of
enforcement from the law enforcer which in Malaysia’s case, the Malaysian Anti-Corruption
Commission. It is not fair to say that there is something wrong with the law because it is formulated
in a way to cater the problem. However, if it is viewed upon the legal system, the demand of justice
may be different from what was stated in the law itself. In our effort to eradicate corruption, it must
first be understood why it happened. This is where the concept of power and domination comes into
play. As stated by Foucault, power is not fixed but circulated. It applies the same in corruption
context. Corruption may function in the form of a chain where it is employed and exercised through
a net of organization. There are always people in the position of simultaneously undergoing and
exercising this kind power.