Jursit Malaya Initiative

The Jurist Malaya Initiative for the Rule of Law and a Realistically Utopian Theory for Malaysia: A Response to Angry Grey Man

When The New Mandala chose to publish a plug for The Jurist Malaya Initiative for the Rule of Law (“JMI”) at the end of August, a commenter called the “Angry Grey Man” criticised that decision. The criticism was directed both at me as the author of JMI and New Mandala for publishing a plug for JMI.

He made a number of criticisms that do not in fact engage the substance of the arguments made on JMI that I will ignore. However, I do want to engage what I take to be an important point buried in Angry Grey Man’s diatribe. He remarks that my writing is expressive of a trend, namely undue negativity in academic writing about Malaysia. And he finds this frustrating and perhaps tiring and asks why people can’t say “good” things about Malaysia instead.

At face value, this critique is either vague or nonsensical. If all Angry Grey Man means is that critique without solution is bad then the response is that it is first vital to know precisely what is wrong before suggesting a solution so criticism by itself is invaluable. And if Angry Grey Man means that that critics of Malaysian law and politics lack “love” for Malaysia, then he should take the time to get to know some of these critics. I think they criticise because they identify a gap between things as they are now and the ideal vision of Malaysia that they wish to defend so they are in fact lovers of Malaysia.

But I take it that Angry Grey Man means something more and I have had to think about that “more.” Perhaps he is making a more profound point, which is that the kind of analysis in JMI is apt to frustrate and fatigue those who might otherwise be motivated to seek a better political-legal future for Malaysia. This is a real worry for the work that I do because my intention is to construct a theory of law and politics capable of motivating practical action for the improvement of Malaysian law and society. If what I say pragmatically conduces to pessimism or cynicism about Malaysia or just plain old fatigue, then this is a problem for such a theory.

I do not know that I can adequately response to this worry here because it requires far more reflection on the role and power of philosophical analysis but I will respond by explaining the deeper intellectual tradition that informs my work. By doing so, I hope that Angry Grey Man and others who feel like him might see that the kind of critique I make is actually anchored to a deeper optimism and faith in the idea that things in Malaysia are not rotten to the core but can be much better.

I am working from within a tradition of political philosophy that aims at “realistic utopia.” Here, the role of political or legal philosophy is to interrogate and unearth the deeper assumptions and patterns of thought that mould popular ways of thinking about law and politics. This involves examining the soundness or coherence of these assumptions, specifically in identifying how they lead to flawed practical decision-making in law and politics. Then, if they are flawed, then the philosopher may also suggest alternative ways of thinking about law and politics that try to avoid these pitfalls. Or, he or she may invite others to try to work up a solution.

Perhaps two notable examples drawn from political philosophy and legal philosophy respectively are John Rawls’s and Ronald Dworkin’s work. Both are philosophers who wrote within the Anglo-American context in seeking to excavate the deeper foundations of “liberal democracy.” Implicit in their approaches is that latent in the context that they analyse are the ideas and values needed to progress society towards a richer ideal of liberal democracy.

For realistic utopia to be plausible, the philosopher must keep in mind that a successful theory is one that ultimately does not stretch the minds and imaginations of its recipients too far. Again, the impetus for the theory is practical action. From this perspective, a good theory is one that shows how the object of analysis, in this case, a legal and political practice, is informed by sound assumptions but identifies a conceptual block that prevents actors from following through on the logic of those sound assumptions when they make practical decisions about what law and politics require. If people can see that latent in their practice are sound and attractive assumptions, then they are more likely to make good decisions that accord with those assumptions because they will find the theory appealing at the level of familiar conviction i.e. it should resonate with their existing sense for why a practice is important and worth upholding. A realistically utopian theory tries to ride on the back of such conviction to motivate action.

Sometimes, no realistically utopian option is possible, only a radical and critical position that is sceptical of existing practices can be made. This would be apposite in cases where the legal-political order is irreparably damaged both institutionally and socially, where there are no longer tacit norms of legal and political legitimacy that circulate in the public sphere.

As I have indicated elsewhere such as during my formal presentation at the Malaysia-Singapore 2013 Update, this view goes too far. Malaysia is semi-democratic and that means that there is a basis both institutionally and socially to sustain a realistically utopian theory. My assumption is that circumstances are such that it is both possible and meaningful to build a theory of law and politics for Malaysia as aspiring to the ideal of constitutional democracy. It is possible to build a theory that is rooted in existing though muted patterns of thought and shared assumptions that turn out to be congenial to that ideal.

Today, the assumption seems more plausible than ever due to several interacting factors. First, Malaysian society seems more democratically mobilised now than ever, as reflected by the results of the last two elections. Second, with the rise and rise of social media, there is now a forum for popular deliberation and debate. Third, the idiom of fundamental rights is now affixed in the broader popular political imaginary in direct opposition to the official emphasis on peace and order at the cost of such rights. Fourth, there is also a substantial group of serious and respectable scholars working on Malaysian law and politics so there are ample intellectual resources now available to build a realistically utopian theory of law and politics for Malaysia.

For these reasons, I think my assumption about the possibility of constructing a realistically utopian theory for Malaysia that advances the ideal of constitutional democracy is justified. But I think that those prospects first require a thorough understanding of what has so far gone wrong, with an emphasis on the significance of the legal point of view. And with that understanding in view, it will be possible to pave the way for a fresh view of law and politics that breaks free from the influence of unproductive patterns of thought.

JMI is intended to be a site for engaging in this process of theory construction that aspires to realistic utopia. My hope is to have readers give comments and feedback on the substance of the ideas set out in the site so that I can build the theory. As things stand, the theory is very far from complete. JMI only now explains part of the problem but it does not yet signal the solution (though I have sketched a suggested solution elsewhere in other writing and at my formal presentation at the Malaysia-Singapore Update 2013). A lot more work has to be done; I have many questions and I do not yet know the answers. JMI is meant to facilitate an interactive process of theory construction between philosopher and audience, one that should hopefully allow an adequate realistically utopian theory to emerge, where I can work through these answers with the help of readers.

In all this, I hope I have shown that I am in fact deeply optimistic about Malaysia, not pessimistic. Indeed, some readers may think that my optimism is in fact naivety. They might think that the practical barriers to the emergence of a meaningful constitutional democracy in Malaysia are too great.

No doubts the barriers to the rise of constitutional democracy are significant. But it is vital to avoid falling into the trap of the myth of the given: the belief that these barriers are immovable and unchangeable facts of the matter. These barriers are themselves sustained by implicit assumptions and patterns of thought so they can be dislodged by different patterns of thought. The power of the sort of philosophical approach I espouse lies in challenging these assumptions and in offering alternatives that change the way we think about political-legal reality.

At bottom, a realistically utopian approach is rooted in a truism that I take to be an article of faith. To the extent that we can take ownership over the way we think, we can avoid blindly being carried by popular but destructive currents of thought. Ultimately, I have faith that those who are optimistic about Malaysia also have the intellect necessary to think deeply about the problems that must be resolved.

Perhaps, then, I am far more optimistic about Malaysia than Angry Grey Man supposes. Where I need help is in linking this optimism to the ideas that I am trying to build to construct an adequate theory rooted in the tradition of realistic utopia. My hope is that JMI will allow me to attain that help by giving readers a way to provide input and feedback on the substance of hitherto embryonic ideas systematically set out in one location. I hope that by collecting these ideas in a single site, they can more easily see how things relate, and get a sense for what works and what does not in critically evaluating the intellectual resources I am building. The role of JMI is to open the space for truly public intellectual work.

Dr. R. Rueban Balasubramaniam is Associate Professor of Law and Legal Studies, Carleton University, Canada. He is also the principal founder of The Juristmalaya Initiative for the Rule of Law (www.juristmalaya.com)