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Faculty of Law 2017/2018

This document provides an introduction to law, including definitions of law, the functions of law, and classifications of law. It defines law as a set of rules enforceable by courts that regulate relationships between citizens and the state. The functions of law include maintaining order, promoting social justice, and protecting rights. Law can be classified as public or private, criminal or civil, substantive or procedural. The document also discusses legal philosophies like legal positivism and natural law theory. Finally, it provides an overview of Malaysia's plural legal system, which integrates common law, sharia law, and customary law traditions.

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Juin Kerk
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27 views

Faculty of Law 2017/2018

This document provides an introduction to law, including definitions of law, the functions of law, and classifications of law. It defines law as a set of rules enforceable by courts that regulate relationships between citizens and the state. The functions of law include maintaining order, promoting social justice, and protecting rights. Law can be classified as public or private, criminal or civil, substantive or procedural. The document also discusses legal philosophies like legal positivism and natural law theory. Finally, it provides an overview of Malaysia's plural legal system, which integrates common law, sharia law, and customary law traditions.

Uploaded by

Juin Kerk
Copyright
© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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GIL1001

Lecture 1 :
Introduction
FACULTY OF LAW
2017/2018
What is ‘law’?
• The law is a set of rules,
enforceable by the courts,
which regulate the
government of the state and
govern the relationship
between the state and its
citizens and between one
citizen and another
Black’s Law Dictionary (6th
Edition)

“a body of rules of action or conduct prescribed by controlling


authority, and having binding legal force. That which must be
obeyed and followed by citizens subject to sanctions or legal
consequence is a law.”
maintain the
status quo
promote social
justice preserve individual
rights
Functions of
the Law
provide for orderly protect minorities
social change against majorities

keep the
peace
Distinguish different philosophies
of law (jurisprudence)
1. Legal Positivism: Law as Sovereign Command

• John Austin - “Law is the command of a sovereign.”


• Law is only law, in other words, if it comes from a recognized
authority and can be enforced by that authority, or who has power
within a defined area or territory
• The positive-law school of legal thought would recognize the
lawmaker’s command as legitimate; questions about the law’s
morality or immorality would not be important.
2. The natural-law : law should be based on a universal moral
order.

• Aristotle – “Universal law is the law of Nature. For there


really is, as every one to some extent divines, a natural justice
and injustice that is binding on all men, even on those who
have no association or covenant with each other”
• Natural law was “discovered” by humans through the use of
reason and by choosing between that which is good and that
which is evil
• People would able to refuse to recognize the legitimacy of
laws that did not conform to natural, universal, or divine law.
If a lawmaker issued a command that was in violation of
natural law, a citizen would be morally justified in
demonstrating civil disobedience
3. Historical school of thought

• Societies should base their legal


decisions today on the examples
of the past.
• Precedent would be more
important than moral arguments
4. Legal realist
• Legal realists pointed out that because life and society are constantly
changing, certain laws and doctrines have to be altered or modernized
in order to remain current.
• The social context of law was more important to legal realists than the
formal application of precedent to current or future legal disputes.
• Rather than suppose that judges inevitably acted objectively in applying
an existing rule to a set of facts, legal realists observed that judges had
their own beliefs, operated in a social context, and would give legal
decisions based on their beliefs and their own social context.
Classification of law
There are various ways in which the law may be classified:

i. Public and private law


ii. Criminal and civil law
iii. Substantive and procedural law
iv. Common law & Civil law (system)
i. Public and private law

Source: pearsoned.co.uk
ii. Criminal and civil law
CRIMINAL CIVIL
Concerns Offences against the state Disputes between private
individuals
Purpose of the action To preserve order in the To remedy the wrong
community by punishing which has been suffered
offenders and deterring
others
The parties A prosecutor would A claimant would sue the
prosecute a defendant defendant

Case title Public Prosecutor v Tan Ali v Ahmad


Standard and burden of The prosecutor must prove The claimant must
proof his case beyond establish his case on the
reasonable doubt balance of probabilities
Examples Murder, theft, rape Contract, tort, trust, land
dispute
iii. Substantive and procedural law

Substantive Law
• Refers to the statutory or written law that governs the rights and
obligations of those who are subject to it
• It defines the legal relationship (right and obligations) of people with
other people or between them and the state
• Refers to all categories of public and private law
• Some of substantive law was derived from principles found in judicial
decisions or in common-law
Procedural Law
• It comprises the rule by which a court hears and determines what
happens in civil lawsuit or criminal proceedings.
• The rules are designed to ensure a fair and consistent application to all
cases
• E.g:
i. time allowed for one party to sue another
ii. rules of law governing the process of the lawsuit
iv. Common Law & Civil Law
(System)
Malaysian Legal
System-
Overview
• Malaysia has a plural legal system,
i.e national legal system within
which co-exist two or more legal
traditions

• Our system is an integration of the


common law, Syariah Law and
Customary law traditions.
• Before the British came, the pre-existing law comprised Malay adat
laws and the customary laws of the various communities.
• Malay adat law was the basic law of the land since the era of Melaka
Sultanate in the mid-fifteenth century
• It was a composite of indigenous Malays adat law with Hindu-
Buddhist elements, overlaid with principles of Syariah law after the
coming of Islam.
• Later, when the British came to the Malay Peninsula,
the common law and rules of Equity of England was
administered; which our present legal system is
mainly based on.
• The first state conquered by the British was Penang
in 1786.
• The British formed the Straits Settlements consisting
of Penang, Singapore and Melaka and subsequently
followed by the intervention and indirect rule
through treaties of Protection in the Malay States,
beginning with Perak in 1874
• Common Law was introduced to the Straits Settlements through Royal
Charters of Justice.

• Its application was extended to the Malay states through administrative


arrangements.

• Initially, the Common Law was introduced indirectly through legislation


on specific matters based on British Indian models, and through the
British or British-trained Bar and Bench.

• The reception was later formalized by a series of enabling act


• Common Law subsequently replaced Malay adat, where the later was
reduced to being the law concerning family and religious matters
applicable to Muslims.
• It evolved into what is now Islamic Law, administered by the Syariah
Court.
• Other customary laws and traditions belongs to the aborigines,
Chinese, Hindus, and the native of Sabah and Sarawak survived the
British administration; as it is the policy of the British to apply the
Common Law only so far as the religions, manners and customs of the
local inhabitants permitted.
FEDERAL CONSTITUTION

Yang Di-pertuan Agong

Executive Legislative Judiciary

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