LAW & SOCIETY LAF 2113 Basic Legal Concept

LAW & SOCIETYLAF 2113Basic Legal Concept Topic 1 : Law By Mr. MahyuddinDaud Department of Laws CFS IIUM

What is law? • Generally, it means a system of rules & guidelines • However, there exist great diversity among the Western scholars about the definition of law • Up till today, there is no juristic agreement as to the meaning of the term ‘law’.

Several definitions by traditional Western jurists • Sir John Austin • Law is a command set by a sovereign / superior being to an inferior being enforced by sanctions • Hobbes • Law is the commands of Him or Them that have coercive power • John Salmond • Law is a body of principles recognised and applied by the State in the administration of justice

Several definitions by traditional jurists • Benjamin Nathan Cardozo • Law is principles or rules of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged • Roscoe Pound • Law is an instrument of social engineering. Its function is to maximise the fulfillment of interest of the community and to provide the smooth-running of the machinery of the society

Reasons for jurists’ disagreement? • Law is only a part of the society that regulates human behavior. Other parts of our life determined how we perceive the meaning of law i.e. standard of morality, social rules • Law is always changing, amended & modified irrespective of time & place. It has been derived from very distinct sources i.e. ancient and modern society

Objectives of having laws? • To regulate human conduct • Ex: transactions – Contract law – know the legal elements required to form a valid contract, remedies available if breach of contract happens etc • Ex: crime – criminal law – to maintain peace & safety in the society – if crime occurs, law provides measures, protection & punishment as deterrence / prevention

Objectives of having laws? • To inform the citizens of their rights & duties

Objective of having laws? • Law serves as a method of delegating authority to those under the authority of the sovereign • Ex: Art. 43A of FC

Federal Constitution of Malaysia THE FEDERATION CHAPTER 3 - THE EXECUTIVE 43A. Deputy Ministers. • (1) The Yang di-PertuanAgong may on the advice of the Prime Minister appoint Deputy Ministers from among the members of either House of Parliament; but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not hold office after the beginning of the next session of Parliament unless he is a member either of that House or of the Senate. • (2) Deputy Ministers shall assist Ministers in the discharge of their duties and functions, and for such purpose shall have all the powers of Ministers. • (3) The provisions of Clauses (5) and (6) of Article 43 shall apply to Deputy Ministers as they apply to Ministers. • (4) Parliament shall by law make provision for the remuneration of Deputy Ministers

Effects of non-regulation?

Sources of law • The word ‘sources’ has several meanings which may include the following: • Historical sources – factors that influence the development of law although not recognised as law i.e. religious belief, local customs & opinion of jurists • Legal sources – these are the legal rules that make up the law i.e. statutes, law reports & textbooks

Classification of law • Written law • Unwritten law

Written law • Written law is the most important source of law. It includes: • The Federal & State Constitutions • The Federal Constitution is the supreme law of the land. • Legislation enacted by the Parliament & State Assemblies (i.e. Acts of Parliament, Enactments, Ordinances) • Subsidiary Legislation

Unwritten law • The portion of law which is not written i.e. law which is not being enacted by Parliament or the State Assemblies and which is not found in the written Federal & State Constitutions. • Unwritten law is found in cases decided by the courts, local customs etc • Unwritten law comprises of the following: • Principles of English law applicable to local circumstances • Judicial decisions of the superior courts (i.e. High Courts, Court of Appeal & Federal Court) • Customs of the local inhabitants which have been accepted as law by the courts

a) English law • It forms part of the laws of Malaysia • It was imported and applied throughout Malaya with certain restrictions during the English occupation • The judges from England adjudged cases including Shariah matters. This has caused much confusion & chaos. • English law can be found inter alia in the English common law & rules of equity • However, not all of England’s common law and equity form part of Malaysian law • Section 3(1) of the Civil Law Act 1956

Section 3(1) of the Civil Law Act 1956 • 3. Application of U.K. common law, rules of equity and certain statutes. • (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall - • (a) in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7th day of April 1956; • (b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 1st day of December 1951; • (c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th day of December 1949…

Example of cases • Karpal Singh & Anor. v. Public Prosecutor [1991] 2 MLJ 544 • The Court held that English law cannot be applied in criminal procedure since Malaysia has its own set of criminal procedure i.e. Criminal Procedure Code

b) Judicial Decisions • Law can also be found in judicial decisions i.e. judgments made by judges in the court. • Decisions of the courts were made, and still are being made, systematically by the use of ‘doctrine of binding judicial precedent’. • Judges do not decide cases randomly. They follow certain accepted principles known as ‘precedents’. • Precedents are decisions made by judges previously in similar situations

Example • Refer to : • Carlill v. Carbolic Smoke Ball Co. • Pharmaceutical Society of Great Britain v. Boots Cash Chemist

The system of binding judicial precedent called stare decisisin English law is practiced in England, Malaysia & other common law countries • Stare decisismeans to stand by what has been decided. • Reason? – ‘like cases must be treated alike’, and to ensure that the law be applied in a consistent and impartial way

Hierarchy of the present Malaysian Courts

Distinguishing Precedents • It is not in every case that judges apply earlier precedents. A judge may not wish to apply precedents in the following circumstances: • Judges may ignore or overrule a precedent laid down by a lower court, where the case is on appeal • They may refuse to apply the earlier precedent if it is arrived per curiam(i.e. made in ignorance of a statute or binding precedent) • They may distinguish the case where they find there are material differences in facts between case before them and the case laying down the precedent.

Advantages of binding Judicial Precedents • Since the law so evolved is a result of an actual dispute rather than a hypothetical question, the law evolved is more practical since it evolved through actual experience and is not a result of abstract theory • It is more flexible when compared to statute law enacted by Parliament as law once enacted can only be amended or repealed and legislative proceedings are often cumbersome and time consuming. A judge can escape the effect of a binding precedent by distinguishing the facts before him from facts of an earlier case wherein the binding precedent was laid down or he may overrule the decision of a lower court if he is of the opinion that it has been wrongly decided • Case law is richer in legal detail than statute law

Disadvantages of binding judicial precedents • As the number of cases decided can only increase, students, lecturers, judges & lawyers are compelled to engage in greater research and reading. Due to the mass of material to be digested, there is a tendency to overlook some authorities inadvertently • It is sometimes difficult to tell whether a particular statement in a judgment is ratio or obiter dicta. Judges seldom indicate the ratio decidendior obiter dicta of a judgment. It is the ratio decidendiof the case which makes the decision a precedent for the future. Obiter dicta is merely saying by the judge and does not have binding effect.

LAW & SOCIETY LAF 2113 Basic Legal Concept