Transcript What is law? - LAF 2113 : Law and Society

Topic 1 : Law
By
Mr. Mahyuddin Daud
Department of Laws
CFS IIUM
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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’.
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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
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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
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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
To regulate human conduct
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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
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To inform the citizens of their rights & duties
RIGHTS
DUTIES
•Right to life : It is a crime to
murder, unless provided by the
law
•Pay taxes to the government
•Right to property : No persons
shall be deprived of property
safe in accordance with the law
(Art13 FC)
•Freedom of expression : To
express their opinions (Art 10
FC)
•Freedom of religion (Art 11 FC)
•Perform any legal duties as
required by the law
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Law serves as a method of delegating authority to
those under the authority of the sovereign
◦ Ex: Art. 43A of FC
THE FEDERATION
CHAPTER 3 - THE EXECUTIVE
43A. Deputy Ministers.
 (1) The Yang di-Pertuan Agong 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
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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
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Written law
Unwritten law
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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
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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:
a) Principles of English law applicable to local
circumstances
b) Judicial decisions of the superior courts (i.e. High
Courts, Court of Appeal & Federal Court)
c) Customs of the local inhabitants which have been
accepted as law by the courts
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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
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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…
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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
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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
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Refer to :
◦ Carlill v. Carbolic Smoke Ball Co.
◦ Pharmaceutical Society of Great Britain v. Boots
Cash Chemist
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The system of binding judicial precedent
called stare decisis in English law is practiced
in England, Malaysia & other common law
countries
Stare decisis means 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
Federal
Court
Court of
Appeal
High Court
Sessions Court
Magistrate Court
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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.
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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
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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
decidendi or obiter dicta of a judgment. It is the
ratio decidendi of 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.