The Wars of Jurisprudence: Clash Between Contractual Justice and Freedom of Contract

Is there “contractual justice” in Malaysian contract law? Or is the notion too vague? Do our courts adjudicate through a formal mechanism using strict law to ascertain liability or do they prioritise justice and equity over form and procedure?

In his first book, the author broke new ground in the discourse on Sharīʿah by moving it out of its legalistic paradigm and proposing that kalām and falsafah be included in its discourse. In this second foray, the author traverses the unchartered terrain of philosophy, law and economics within the matrix of contract law where contractual freedom clashes with contractual justice in a series aptly titled the wars of jurisprudence. The discourse is based on English common law covering the jurisdictions of Malaysia, Singapore and other common law countries including the United States.

The author explores the concept of justice traceable to Plato and Aristotle and then to Kant’s categorical imperatives before settling on Rawlsian “justice as fairness” in support of the definition and advocacy of contractual justice. He tackles headlong the principles of economic and contractual freedom laid down by Adam Smith, Hayek and Nozick. The author critically examines the doctrines of consent, coercion and voluntariness while unconscionability and economic duress are argued as primary factors to invoke contractual justice. The author proposes several substantive amendments to the Contracts Act 1950 in order to facilitate judicial dispensing of contractual justice.