introduction

Question 1

malaysian legal history

Answer 1

1. before colonisation
   - custom/islamic law > aboriginal legal system
2. during colonisation
   - Portuguese/dutch > British
3. after colonisation
   - merdeka > NOW-the future of Malaysian legal system

Question 2

what is law

Answer 2

• understood as a gneral rule of conduct

Question 3

what is law according to philosophers say

Answer 3

1. John W. Salmond
   - the body of principles recognized and applied by the state in the administration of justice
2. john auston
   - a command set by a superior being to an inferior being and enforced by sanctions. the superior is the state and the inferior is the individual
3. thomas hobbes
   - a precept of general rule found out by the reason, by which man is forbidden to do that which is destructive of his life, or take away. that means of preserving the same, and to omit that by which he thinks it may be preserved
4. article 160 of FC

Question 4

the application of definition of law (austin)

Answer 4

case: Nik Nazmi Nik Ahmad v PP

Question 5

nik nazmi nik ahmad v PP

Answer 5

• Nik Nazmi [2014]: CA held that s. 9(5) of the peaceful assembly
  act is unconstitutional. Note:
  CONTINUE
• (1) s. 9(1) – the organisor of an assembly must give 10 days prior notice; √
• (2) s.9(5) – failure to give such a notice is a criminal offence punishable with fine of RM10,000. X

Question 6

functions of law

Answer 6

• maintain social order
  -protect public interests
  -resolve disputes
  -establishes the powers of the state
  -promotes justice in a society

Question 7

relationship between law and justice

Answer 7

1. natural law theory
   - takes into account morality and justice in making law, what is unjust should not bt e made legal

Question 8

relationship between law and morality

Answer 8

Positivists: laws are rules made by the State; justice is irrelevant.

Question 9

law and justice

Answer 9

Function of the law – to achieve justice
* Justice = what is right and wrong; fairness; equality? * Should law be made based on what is just?
* Some argue that laws that appear just will receive more respect from society and hence, can be easily enforced.

Question 10

opinions of law and justive from scholars

Answer 10

1. thomas jefferson
   - it a law is unjust, a man is not only right to disobey it, but he is also obligated to do so
2. Mahatma Gandhi
   - an unjust law is itself a species of violence. arrest for its breach is more so
   3.saint augustine
   - it seemed to me that an unjust law is no law at all

Question 11

how to define justive? what is just to A may not necessarily be so for B?

Answer 11

Laws providing for preventive detention may seem unjust, but if the purpose is to protect the interests of society, should such laws be deemed unjust?

Question 12

law and morality

Answer 12

Q: should the law be used as a tool to enforce morality?
* Naturalists believe that law should enforce morality or contain some moral elements.
* Positivists disagree.
* E.G. Law to prevent Muslims from entering beauty contest; laws against indecent behavior such as LGBT etc.

Question 13

law and morality (hart)

Answer 13

Hart
- Law should not enforce morality
- Individuals should be free to do as they wish so long as their action does not harm others

Question 14

law and morality (devlin)

Answer 14

Devlin
- Argued for the element of morality in law
- Over emphasis on individual freedom/autonomy will harm society

Question 15

law and morality (JS Mill)

Answer 15

“It is desirable that in things which do not primarily concern others, individuality should assert itself.”

“…the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

Question 16

paternalistic law

Answer 16

“The power or authority one person or institution exercises over another to confer benefits or prevent harm for the latter regardless of the latter’s informed consent.” [Oxford Companion to Philosophy]

Question 17

example of paternalistic law in malaysia

Answer 17

• law on drugs
• law on seatbelt
• law on alcohol
• law on drinking

Question 18

classification of laws

Answer 18

Public Law
- Governs individual and the State
Private Law
- Governs the relationships among individuals
International Law
- Laws that prevail between States

Question 19

public law

Answer 19

• Governs individuals and the state;
• Consists of 2 categories:
  1. Constitutional Law
  2. Criminal law

Question 20

private law

Answer 20

• Regulates matters among individuals;
• E.G. Tort, contract, trust;
  *Intended to compensate injured persons, enforce contractual obligations etc.

Question 21

international law

Answer 21

● Divided into private and public international law;
1. Public international law:
►Laws that govern state conducts; laws that prevails between states;
2. Private international law:
► Concerns individuals from different states;
► Consists of rules that guide a judge when the dispute involves laws of various states;
► E.G. 2 Englishmen entered into a contract in France. Which law of contract shall apply?

Question 22

classification of law

Answer 22

• secular laws
  -syariah laws

Question 23

civil law (secular)

Answer 23

• 1. Man made;
• 2. Can be repealed/amended;
• 3. Lacuna

Question 24

syariah law

Answer 24

• 1. Divine laws from God;
• 2. Cannot be repealed;
• 3. Complete and comprehensive

Question 25

civil law

Answer 25

Civil Law (1). Governs between individuals; (2). A v B (3) aim: to settle disputes between individuals and provide remedies; not concerned with punishment

Question 26

criminal law

Answer 26

(1). Concerns conduct that the State seeks to govern; (2). State v Individual (3). Involves the enforcement of certain behavior that the State seeks to impose and ensure compliance.

Question 27

civil law vs criminal law terminology

Answer 27

Civil Law 1. Plaintiff v(and/dan) Defendant 2. Sue/Saman 3. Liable/Bertanggungan Criminal Law 1. PP v (against/lawan) the accused 2. Prosecute/Dakwa 3. Guilty/Bersalah

Question 28

the diferent legal system

Answer 28

1. common law system 2. civil law system

Question 29

common legal system

Answer 29

* Emerged in England during the middle ages and was applied within British colonies; * Generally uncodified – no comprehensive compilation of legal rules and statutes; * There is not always a written constitution; * Relies heavily on judicial decision with some reference on statutes; * Operates as an adversarial system i.e. 2 opposing parties argue in court before a judge.

Question 30

civil legal system

Answer 30

* Developed in continental Europe and was applied in the colonies of European imperial powers e.g. Spain and Portugal; * Codified – countries with civil law systems have comprehensive legal codes that specify all matters capable of being brought before a court, the applicable procedure and the punishment; * Less reliance on judicial decisions;