The Singapore Law Gazette

From Charter to Calling: Reflections on the Common Law and the Bar

Every lawyer recalls the moment of being called to the Bar: wearing our robes is a moment etched in our memories as both a culmination and beginning. The culmination of years of study, training and anticipation; the beginning of a long, uncertain and often arduous path of a member of a noble profession.

This year marks another culmination: the Bicentennial anniversary of when the Second Charter of Justice 1826 (“the Second Charter”) was introduced in the then Straits Settlement of Singapore. The Second Charter marked the introduction of the English common law into Singapore.

To students of the law and practicing lawyers, the Second Charter might seem an esoteric anniversary to commemorate: the Rules of Court are far more ubiquitous, and, seem more immediately useful. I confess that, in preparation of this article, I had to do a fair bit of homework to bring myself up to speed on what the Second Charter was and how it came to be. In the course of my reading, the significance of the Second Charter began to dawn on me and provided me a meaningful opportunity to reflect on the practice of law, which I share here.

The Common Law Tradition

The most immediate effect of the Second Charter is that it introduced a uniform legal system based on the English common law which did not exist in Singapore prior to 27 November 1826. By that time, the English common law tradition (whose origins are conventionally traced to the Norman Conquest of 1066) had already been tested and refined over some seven centuries.

There is some significance to this historical fork in the road.

Two years prior to the Second Charter of Justice, the Anglo-Dutch Treaty of 1824 had settled competing European claims in the region and secured Singapore firmly within the British sphere of influence. The introduction of the common law in 1826 was therefore not an isolated legal development, but one that was consequent on the consolidation of political authority. In historical shorthand, we picked a side, or a side picked us.

Had history taken a different course, Singapore’s legal trajectory might well have diverged. If the Anglo-Dutch Treaty put Singapore in the hands of the Dutch, first year law students would not be reading cases about snails in bottles and carbolic smoke balls, they would have probably been reading Grotius’ Introduction to Dutch Jurisprudence or Johannes Voet’s Commentary on the Pandects. Practitioners would be encountering the law as a systematic expositions of legal principles rather than recorded decisions of individual cases.

The difference has significance beyond the pedagogical: the common law is best understood not as a code, but as a method. It develops incrementally through judicial decisions, where principles are articulated, tested, and refined over time. The distinction is conceptual: while civil law aspires to authoritative completeness at the point of enactment, the common law accepts continued development through adjudication.

The practical consequence is that the common law places a distinctive weight on the process by which law is made. Judges and lawyers are not merely applying rules, they participate in the development of the law.

You, as a newly qualified member of the Bar, have an opportunity to participate in the development of the law through the quality of your advocacy, the clarity of your reasoning, the discipline with which you marshal centuries of precedent, and the manner in which you assist the Court. Through your interactions with fellow counsel and the Court, you have the opportunity to shape the law in practice.

The role of the lawyer in providing access to Justice

This brings me to my next reflection. As the inheritors of the common law through the Second Charter of Justice, we also became the stewards of the traditions of the Bar.

Over time, some traditions have inevitably fallen by the wayside. Forms of address such as “your lordship”, and modes of dress such as wigs and collar bands, have been set aside or modernised. As Singapore’s legal system matured and confidence in its autochthony grew, more fundamental changes followed. The jury system was abolished. Rights of appeal to the Privy Council were removed.

Yet even as the outward forms of the law have evolved, certain values have proved enduring. The common law, by its nature, depends on continuity: core principles that persist even as institutions adapt.

Among these enduring values is the role of the lawyer in the defence of the rule of law.

However much the system changes in form, the administration of justice continues to rely, as its cornerstone, on an independent Bar that is able to act without fear or favour, and lawyers who recognise their responsibility not only to the court, but also to the facilitation of access to justice.

A well-known illustration of the importance of the Bar’s independence can be found in the trial of Thomas Paine in 1792. Paine, the author of Rights of Man, was prosecuted for seditious libel at a time of considerable political tension in England. Paine’s views were deeply unpopular with the public, and his prosecution attracted significant public opprobrium. Thomas Erskine, then one of the leading advocates of his day, agreed to act for Paine despite the personal and professional risks involved. Erskine could not have hoped for a worse client: before his trial, Paine absconded and was to be tried in absentia.

In addressing the jury, Erskine articulated what has since come to be regarded as the foundation of the “cab rank rule”, declaring that he would “at all hazards, assert the dignity, independence, and integrity of the English Bar; without which, impartial justice… can have no existence.”

Erskine cautioned: “from the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject… the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence he assumes the character of the Judge; nay, he assumes it before the hour of judgment: and, in proportion to his rank and reputation puts the heavy influence of perhaps, a mistaken opinion into the scale against the accused, in those favour the benevolent principle of English law makes all presumptions.”

In doing so, Erskine made clear that the advocate does not choose causes based on popularity, but serves a higher function in ensuring that every case is properly heard according to law. Erskine affirmed a principle that lies at the heart of the best tradition of the Bar: that every person is entitled to representation, regardless of the unpopularity of their cause.¹Watson, Andrew (2022). The Origins and Development of the Cab Rank Rule for Barristers in England and Wales. Journal on European History of Law, 13 (1), 12-20.

In a separate iconic utterance in the 1967 case of Rondel v Worsley, Lord Pearce observed that while it may be “easier, pleasanter and more advantageous professionally” for counsel to act only for those who are respectable and likely to succeed, “it would be tragic if our legal system came to provide no reputable defenders… for the [unpleasant or apparently hopeless]”.²Rondel v Worsley (1969) 1 AC 191, 275. The reason is simple: cases that appear unmeritorious at the outset may, upon proper examination, prove otherwise—and the court can only arrive at the truth if all sides are properly represented.

Taken together, these statements underscore a central feature of one of the best traditions of the Bar: the lawyers’ role in providing access to justice.

In our careers at the Bar, few of us will take on cases as significant as the defence of Thomas Paine. But facilitating access to justice, giving effect to the profession’s calling to be more than a cog in the wheel of the legal system, can be realised in many ways. For a young associate, this may mean accepting a Criminal Legal Aid Scheme brief, even where it competes with fee-paying work. It may mean volunteering at community legal clinics, where advice on a letter of demand may have a more immediate impact on a person’s life than even the most complex commercial dispute.

The noble profession

Thinking through the Second Charter and its significance provided me with an opportunity to renew my interrogation of an oft cited term: that of the “noble profession”. The term “noble profession” is a familiar phrase, but an imprecise one: it is often invoked, yet rarely unpacked.

The concept of nobility is often encountered, somewhat anachronistically, through the lens of noblesse oblige, the French phrase meaning “nobility obliges”. It conveys the idea that those who hold privilege, status, or power bear a corresponding duty to act honourably and to serve others. More simply put, as Uncle Ben in Spider Man has it: with great power comes great responsibility.

The nobility of the profession flows, in part from the privileges and powers being a member of the honourable profession confers.

Lawyers are entrusted with the power to shape the law, and with that comes a responsibility to exercise judgment with care and restraint. In an adversarial system, the courts depend on counsel not only to advance their clients’ cases fearlessly even in the face of public disapproval, but also to assist in the proper administration of justice by presenting cases with candour and fairness.

This dual responsibility is reflected in what Lord Hoffmann described as a “divided loyalty”.³Arthur J S Hall (and Co) v Simons (2002) 1 AC 615 at 686E–686G. A lawyer owes a duty to the client, but not to win by any means. That duty is qualified by an overriding obligation to the court and to the administration of justice: not to mislead, to cite relevant authorities whether favourable or not, and to refrain from vexing the Court with irrelevancies even if a client thinks they are important. These duties may at times run counter to the client’s preferences and annoy the client, but this overriding duty to the administration of justice is an element essential to the integrity of the legal system itself.⁴Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] SGHC 143.

The growth of Singapore’s legal system brings with it greater expectations. Our relevance as a legal hub will depend not only on institutional innovation, but on the continued strength of the profession: on the quality of our advocacy, the ethical integrity of our practice, and the confidence that others place in Singaporean legal talent.

To inherit such a system is a privilege; to sustain and shape it is the responsibility that now falls to us.