Topic 1(1)

MALAYSIAN LEGAL SYSTEM

By: Dr. Hanira Hanafi

DEFINITION OF LAW

Layman-a general rule of conduct

Oxford English Dictionary- the body of enacted or customary rules recognized by a community as binding.

Sir John Salmond- Jurispudence: the body of principles recognized and applied by the State in the administration of justice.

In a simple words- law may be defined as a body of rules which are enforced by the State.

THE DIVISION/CLASSIFICATION OF LAW

Definition of Law: may be defined as a rule of human conduct, imposed upon and enforced among, the members of a given state.

There are two ideas underlie the concept of law(a) order, in the sense of method system; and

(b) compulsion i.e. the enforcement of obedience to the rules

or laws laid down.

LAW IN RELATION TO JUSTICE

The aim of the law is to attain justice in society.

Therefore, the aim of a given law is to encourage the doing of what is right or just in a particular set of circumstances.

The relationship between morality and law

Moral rules: Do not covet, do not defame the dead, do not be arrogant

Moral and Legal rules: murder, fraud, theft

Legal rules: Parking offences, contracts by deed must be signed sealed and delivered

Contd

LAWMORALITY

LAW & MORAL

Public law International law Private law

LAW

Constitutional law

Public In. Law Private In. law

Contracts

Torts

Trust

(Individuals and the State) (Law that prevails between States) (Individuals inter se)

(Rights of individuals in the State)

(Offences against the State Obligations imposed on individuals)

(Offences against individuals)

(Rights and obligations that arise by agreement)

(Relationship between trustee and beneficiary)

Classification of Law

Public and private law

Public law is concerned with the distribution and exercise of power by the state and the legal relations between the state and the individual.

Private law is concerned with the legal relationship between individuals, such as the liability

Classification of Law cont

Criminal and Civil law

Criminal law is that part of the law which characterizes certain kinds of wrongdoings as offences against the state, not necessarily violating any private right, and punishable by the state.

Civil law is concerned with the rights and duties of individuals towards each other.

Crimes and Civil Wrongs

The distinction does not reside in the nature of the wrongful act itself.

For example, if a railway signal man, to dumb forgetfulness a prey, fails ton pull the lever at the right moment, and a fatal accident occurs in the line.

Crimes and Civil Wrongs

The carelessness may be regarded as sufficiently gross to amount:

1. to the crime of manslaughter

2. and it is also the tort of negligence towards the victims of the accident

3. and a breach of his contract with the railway executive to take due care in his work.

Crimes and civil wrongs- Contd

The true distinction resides, therefore, not in the nature of the wrongful act but in the legal consequences that may follow it.

If the wrongful act (or omission) is capable of being followed by what are called criminal proceedings that means it is regarded as a crime (otherwise called as offence). If it capable of being followed by civil proceedings, that means it is regarded as a civil wrong.

Crimes and Civil Wrongs- Contd

Criminal and civil proceedings are in the normal case easily distinguishable:

1. the procedure different,

2. the outcome is different and

3. the terminology is different.

Crimes and Civil Wrongs- Contd

prosecutor prosecuting a defendant, and the result of the prosecution if successful is a conviction, and found guilty

a plaintiff (e.g. brings an action against) a defendant.The proceedings if successful result in judgment for the plaintiff, and the defendant is liable

Crimes and Civil Wrongs- Contd

and the defendant may be punished by one of a variety of punishments ranging from life imprisonment to a fine, or else may be released

and the judgment may order the defendant to pay to the plaintiff money, or to transfer property to him, or to do or not to do something (injunction) or to perform a contract (specific performance).

The Examples of Civil Law

Law of trust is that a part of the law which determines the devolution of property on the death of the former owner

Family law is that branch of the law which defines the rights, duties, and the status of husband and wife, parent and child, and other

Contd

Law of contract, dealing with that branch of the law which determines whether a promise is legally enforceable and what are its legal consequences

Law of tort. A tort is defined as a civil wrong for which the remedy is a common law action for unliquidated (i.eunspecified or unascertained) damages in which is not exclusively the breach of a contract or breach of trust or other merely equitable obligation. Examples of tort are: nuisance, negligence, defamation and trespass