LAW511: Postmodernism re-opens and unsettles the legal concepts which had been previously thought: JURISPRUDENCE II Assignment, UiTM, Malaysia

University Universiti Teknologi MARA (UiTM)
Subject LAW511 JURISPRUDENCE II Assignment

Question 1

Postmodernism re-opens and unsettles the legal concepts which had been previously thought to be stable and certain. With reference to decided cases and the theories of any TWO (2) schools of thought related to postmodernism, discuss how such theories may be useful and relevant to re-open and reinterpret some legal problems in Malaysia.

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Arnorld Toynbee first used the term “postmodernism” in the final quarter of the 19th century, as Western civilization was beginning to fall apart. Toynbee was a product of the late 19th century, believing in an all-encompassing history of humanity in which secularity is viewed as a digression in what is fundamentally a circular narrative structure.

The postmodernism represents a break from modernism in the arts, architecture, criticism, and intellectual tendencies in the postmodern condition. The phrase has been used more broadly to refer to what postmodernists consider to be the tendencies of the historical era that came after modernity.

Postmodernism is the result of protest and disagreement, a direct denial of general philosophical viewpoints, especially in the Enlightenment period of the 18th century, believing that the rigid guidelines are of no proper reasoning, whereas modernism provides a better initiative and ultimate guidelines of changes from the traditional premise.

For instance, postmodernist architecture challenged the formality of modern buildings in the 1960s, offering a wider range of design distinct from one another, as demonstrated in the current era of Las Vegas, which depicts a non-formal, unique, yet non traditional arrangement of buildings and architecture.

In postmodernist theory, they believe those who have wealth and power are always right and obliged everywhere in society while less obliged are those whose hands are empty and who cannot offer any kind of profit to the high ups. Postmodernism not always a positive movement.

In terms of law, postmodernist led to the people questioning every law enacted and executed, every decisions made by court, and the enforcement of law upon the society. Postmodernist ignites the spirit of declining, in terms of belief and faith upon the law and the State, due to the nature of skepticism and questioning every single action taken which is different from the past.

Postmodernist reject the premise that the law is perfect representation of the society. They believe that the law is just the fulfillment of interest of the legislature, which is biased towards themselves. Postmodernist realized that even with the participation of the society in the making of the law, there will be no perfect presentation of law, due to difference in opinion from one individual to another.

it seems as if postmodernist does not even care upon the existence or absence of law, because due to their skepticism, they believe that the purpose of the law will not be achieve one way or another. Postmodernism is the idea of arguing in every aspect, questioning in every manner and point possible. For example, the law which punish murderer will not stop murder in total.

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Postmodernism is a response to Jürgen Habermas’ legitimation crisis. The phrase “legitimation crisis” was first used by Jürgen Habermas in his book Crises Tendencies in Advanced Capitalism. It is the outcome of opposition to Marxist Capitalism theory, which was criticised for failing in the formerly known Soviet Union. A legitimation crisis is an identity crisis brought on by a decline in trust in administrative institutions, even though these institutions still have the legal right to rule and make every effort to serve their needs and interests.

In a crisis of legitimacy, governing structures are unable to show that their actual operations serve the purpose for which they were established. Based on the term itself, it is understandable that legitimation crisis is the crisis in obtaining approval or being legitimized by the subject of the law. For example, the State government to obtain approval from its people. Habermas realized that as differ from traditional premise, modernism is legitimized through religious and cultural belief, which the people think and believe the best for their interest.

As time goes, postmodernism can only be legitimized through the society and public acceptance. Hence, the government must actively engage with the society and constantly reevaluate the aspects of political, social and especially economic aspects. In simpler sense, the government must execute their functions based on what the society demand as a whole, in order to prevent them from losing their support and confidence.

However, once legitimacy has been attained, it would result in false consciousness. Due to the high level of confidence and support, the society will accept the government and State as what it is, regardless of their failure. In addition, society will reject any attempt at progress and will not make any changes. In addition, the government will abuse its authority in the absence of critical inquiry because they will be confident in the people’s support.

Additionally, despite the world’s rapid economic, political, and social development, society will not push its boundaries or subject the country to outdated standards due to the global development.

In Malaysia, legitimation crisis can recently be seen in the recent 14th Malaysian General Election on 9th after 61 years of Barisan Nasional rule, the people of Malaysia successfully elected Pakatan Harapan as the new government. The historical event was prompted by a number of factors, including the former prime minister’s involvement in a corruption scandal and the high cost of living, particularly in relation to groceries and gasoline.

In Malaysia, because of the Federal Constitution’s existence and its stipulation in Article 4 (1) that the law is supreme, the concept of postmodernism is not in use today. Any law that is contrary will be null and void. Everybody will be protected by the fundamental liberties outlined in the Federal Constitution’s Articles 5 untill Article 13. For instance, every person shall be equal before the law and shall enjoy equal protection of the law, according to Article 8(1) of the Federal Constitution of Malaysia. In the case of Noorfadilla Binti Ahmad Saikin v Chayed Bin Basirun & Others., a person accepted the offer to work as a temporary teacher at a public school.

The offer was withdrawn the moment the employer found out she was expecting. Noorfadilla requested interest, costs, and damages from the court. The officer, the Federal Government, the Education Minister, and the Director General of Education were among the defendants in the lawsuit. In accordance with Malaysia’s obligation under the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW), this case involves both direct discrimination that uses pregnancy as an excuse to prevent women from working and indirect discrimination that results in unequal treatment of men and women.

Another illustration is found in Article 11 of the Federal Constitution, which guarantees religious freedom to all citizens. The infant’s father converted to Islam without getting permission from Chang Ah Mee, who was then his wife, in the case of Chang Ah Mee v. Jabatan Hal Ehwal Agama Islam, Majlis Agama Islam Sabah & Ors. She filed a court case regarding her child’s conversion to Islam after she divorced him and was granted custody of the children. The court ruled that both parents must consent before a minor changes his or her religion.

The court then held that Chang Ah Mee had the right to decide on her child’s religion since she was given the child custody, which contradicted with itself by giving the right to decide the conversion of religion to a parent instead of both parents. As a conclusion, parents can decide on their children’s religion given if their children have not reached the age of majority and children have the right to choose their religion as stated in Article 11 of the Malaysian Constitution only if they have reached the age of majority which is eighteen years old.

In conclusion, there are so many differences between people on the basis of gender, age, culture, skin colour, languages, and other factors, postmodernist theory essentially fails to achieve social justice and equality and cannot be put into practise. On the other hand, because it lacks direction and is still ambiguous, postmodern knowledge is associated with unresolved conflicts and conflicts that are marked by incomplete information.

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