1. LAW & SOCIETY LAF 2113 Basic Legal Concept
Topic 1 : Law By
Mr. Mahyuddin Daud
Department of Laws
CFS IIUM

2. 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’.

3. 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

4. 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

5. 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

6. 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

7. Objectives of having laws?
To inform the citizens of their rights & duties
RIGHTS
DUTIES
Right to life : It is a crime to murder, unless provided by the law
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)
Pay taxes to the government
Perform any legal duties as required by the law

8. 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

9. Federal Constitution of Malaysia
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

10. Effects of non-regulation?

11. 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

12. Classification of law
Written law
Unwritten law

13. 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

14. 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

15. 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

16. 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…

17. 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

18. 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

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

20. Stare decisis means to stand by what has been decided.
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

21. Hierarchy of the present Malaysian Courts
Federal Court
Court of Appeal
High Court
Sessions Court
Magistrate Court

22. 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.

23. 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

24. 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 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.