introduction Flashcards
malaysian legal history
- before colonisation
- custom/islamic law > aboriginal legal system - during colonisation
- Portuguese/dutch > British - after colonisation
- merdeka > NOW-the future of Malaysian legal system
what is law
- understood as a gneral rule of conduct
what is law according to philosophers say
- John W. Salmond
- the body of principles recognized and applied by the state in the administration of justice - 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 - 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 - article 160 of FC
the application of definition of law (austin)
case: Nik Nazmi Nik Ahmad v PP
nik nazmi nik ahmad v PP
- 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
functions of law
- maintain social order
-protect public interests
-resolve disputes
-establishes the powers of the state
-promotes justice in a society
relationship between law and justice
- natural law theory
- takes into account morality and justice in making law, what is unjust should not bt e made legal
relationship between law and morality
Positivists: laws are rules made by the State; justice is irrelevant.
law and justice
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.
opinions of law and justive from scholars
- thomas jefferson
- it a law is unjust, a man is not only right to disobey it, but he is also obligated to do so - 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
how to define justive? what is just to A may not necessarily be so for B?
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?
law and morality
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.
law and morality (hart)
Hart
- Law should not enforce morality
- Individuals should be free to do as they wish so long as their action does not harm others
law and morality (devlin)
Devlin
- Argued for the element of morality in law
- Over emphasis on individual freedom/autonomy will harm society
law and morality (JS Mill)
“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.”
paternalistic law
“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]
example of paternalistic law in malaysia
- law on drugs
- law on seatbelt
- law on alcohol
- law on drinking
classification of laws
Public Law
- Governs individual and the State
Private Law
- Governs the relationships among individuals
International Law
- Laws that prevail between States
public law
- Governs individuals and the state;
- Consists of 2 categories:
1. Constitutional Law
2. Criminal law
private law
- Regulates matters among individuals;
- E.G. Tort, contract, trust;
*Intended to compensate injured persons, enforce contractual obligations etc.
international law
● 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?
classification of law
- secular laws
-syariah laws
civil law (secular)
- Man made;
- Can be repealed/amended;
- Lacuna
syariah law
- Divine laws from God;
- Cannot be repealed;
- Complete and comprehensive
civil law
Civil Law
(1). Governs between individuals;
(2). A v B
(3) aim: to settle disputes between individuals and provide remedies; not concerned with punishment
criminal law
(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.
civil law vs criminal law terminology
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
the diferent legal system
- common law system
- civil law system
common legal system
- 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.
civil legal system
- 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;
