IRB 10703: INTRODUCTION TO LAW

AND MALAYSIAN LEGAL SYSTEM

TOPIC 2: DIVISION OF LAW

SEMESTER I 2022/2023
DR. IYLLYANA CHE ROSLI
iyllyanarosli@unisza.edu.my
8 NOVEMBER 2022
 Agenda: Lecture Week 2 - Division of Law

1 2
1. Public Law 2. Private Law

3. National Law/
4. International Law

3 4
Domestic Law
 Recap: What is Law
It is a set of rules that To the layman, law
regulates interactions that is understood as
people have with each other, being a general rule
and which sets standards of of conduct.
conduct between individuals
and between individuals and
the government and which • Article 160(2) of the Federal
are enforceable through Constitution & Item (43C) of
sanction. Section 2(1) of the
Interpretation and General
Clauses Ordinance 1948:
• Sir John Salmond: the body of
to include:
principles recognized and
(a) the written law
applied by the State in the
(b) Common law in so far as it
administration of justice
is in operation in the
• John Austin: a command set
Federation or any part thereof
by a superior being to an
(c) any custom or usage having
inferior being and enforced by
the force of law in the
sanctions (punishments)
Federation or in any part
 Division of Law
National Law International Law

PUBLIC PRIVATE PUBLIC PRIVATE

• Constitutional • Law of Contracts • Law of Treaties • Jurisdiction of

Law • Law of Trust • Law of the Sea Court
• Administrative • Law of Tort • International • Choice of Law
Law Criminal Law • International
• Criminal Law Commercial
Arbitration

Ashgar Ali Mohamed (2017), Malaysian Legal System, at p 40

 Civil Law and Criminal Law

CIVIL LAW actions CRIMINAL LAW

are between prosecutions are
claimants and usually brought by
defendants. the State against
Claimants must defendants (the
accused). The Some
prove their case on circumstances
prosecution must
the balance of
probabilities. If the
prove its case will entail both
beyond a civil and criminal
claimant is reasonable doubt. If
successful, the the State succeeds,
liability.
defendant will be the defendant will
found liable and be found GUILTY
will have to pay and may be sent to
compensation. jail)
 Civil Law vs Criminal Law
Civil Law (eg: Tort/ Contract Criminal Law
Claimant v Defendant. Eg: PP v Defendant eg:
Remedies: Outcome:
Damages/Compensation, injunction, specific Punishment – imprisonment, fine,
performance community service

Standard of proof: on the balance of Standard of proof: beyond all reasonable

probabilities doubt
S 22(1) of the Courts of Judicature Act 1964
S 23(1) of the Courts of Judicature Act 1964
 Classification of Law
National Law International Law

PUBLIC PRIVATE PUBLIC PRIVATE

• Constitutional • Law of Contracts • Law of Treaties • Jurisdiction of

Law • Law of Trust • Law of the Sea Court
• Administrative • Law of Tort • International • Choice of Law
Law Criminal Law • International
• Criminal Law Commercial
Arbitration

Ashgar Ali Mohamed (2017), Malaysian Legal System, at p 40

 Public Law
• The law governing relationship between the State and its
subjects.

• A system which deals with the State itself, either by:

1.Its own (among States)
2.Relationship with the individuals living inside the particular
State

• Concerns with, for eg:

ü Structure of the State and government
ü Duties and powers of the officials
ü Relationship between the State and the individuals
ü Person’s behavious
ü Fulfillment of state-mandated obligations
 Constitutional Law
• Supreme law of the land (almost all States)

• Constitution: entire body of rules whereby a State is governed

• Specifies structure of a State, rights of its subjects, structure of

government and legislative bodies & composition of courts

• Interpretation rules

• Basic rights and liberty of individuals within a State

• Deals with relationship between State & Individual; and State organs
(executive, legislative & judiciary)
 Administrative Law
• Law which describes functions and powers of the Government and
its branches.

• Defines power of administrative agencies and regulates managerial

procedures

• Principles: natural justice, rational, transparent and efficient.

• Purpose: exercise functions and powers of the Government

effectively within legal boundary and protect citizens against abuse of
power by the government authorities

• For eg: law on education, jobs, medical services, housing and pension

• Must be kept under political control of the Parliament and legal

control of the Court.
 Criminal Law
• Unlawful conduct against the State (and society as a whole)

• Crime – offense which is committed by an individual, a group or a

corporate body against the State.

• Eg: Murder, kidnapping, robbery, assault and battery

• The law prescribes penalties to the offenders

• Enforced by State; proceeding initiated by the representative of the

State called the Public Prosecutor against the accused.
 Private Law
• Body of law dealing with rights and duties between and among
private individuals.

• When a private law is violated, the victim (who is harmed or

whose property is damaged) can sue the wrongdoer in court.

• Eg: Law of Contracts, Law of Tort

 Law of Contracts
• Contracts – contracts are entered into by the parties to give legal effect
to their promises.

• Must have a binding contract

• Essential elements:
ü Offer
ü Acceptance
ü Consideration
ü Intention to create legal relations
ü Certainty of subject matter
ü Capacity to enter into contract

• When there is breach: the breached party can be sued by the other
party seeking remedy in court.
 Law of Tort
• Tortious liability arises from the breach of a legal duty which results in
damage to a person or property.

• Test of duty: Blyth v Birmingham Waterworks: “Negligence is omission

to do something that is a reasonable man would do or doing something
which is prudent and reasonable man would not do”

• May arise through trespass to person, trespass to land, trespass to

property
 International Law

International
Law

Public Private
International International
Law law
Public International Law (PIL)
• JG Stark: ’body of law which is composed for its greater part of the
principles and rules of conduct which States feel themselves bound to
observe, and therefore do commonly observe in their relations with
each other

• Also known as law of nations, law among nations, inter-state law

• Oppenheim: body of rules which are legally binding on States in their

intercourse with each other. These rules are primarily those which
govern relations of States, but States are not the only subject of PIL.
International organisations and individuals may be subject of rights
conferred and duties imposed by international law.

• Sources of law: Art 38(1) of the Statute of the International Court of

Justice.
 Private International Law
• Body of rules, principles and policies that deal with cases before a
domestic court with any connection with a foreign country.

• Part of internal law of a State and it comes to operation whenever the

court faces a dispute with a presence of a ‘foreign element’

• Foreign element= foreign person, a contract made in or to be performed

in a foreign country, a marriage between 2 persons from different
States, property in a foreign State

• Also known as ‘conflict of laws’

• Main issues: jurisdiction, choice of law, recognition and enforcement of

foreign judgments
Classification of Law
3.3 CLASSIFICATIONS OF LAW

ü Civil & Criminal Law

ü Private & Public Law
ü Substantive & Procedural Law
ü Common Law & Rules Of Equity
ü International Law

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 Classification of Law
National Law International Law

PUBLIC PRIVATE PUBLIC PRIVATE

• Constitutional • Law of Contracts • Law of Treaties • Jurisdiction of

Law • Law of Trust • Law of the Sea Court
• Administrative • Law of Tort • International • Choice of Law
Law Criminal Law • International
• Criminal Law Commercial
Arbitration

Ashgar Ali Mohamed (2017), Malaysian Legal System, at p 40

 1. Civil Law
§ Concern with the rights & duties of individuals towards
each other (private relations between members of a
community) rather than criminal, military, or religious
affairs.
§ Action may be brought by any individual against another
individual / a group of individuals.
§ Aimed at giving compensation to persons injured or to
enable property to be recovered or to enforce obligations
like contracts and trusts.
§ Contains several major branches of law : Law of Contract,
Law of Tort, Law of Property, Law of Succession, Family Law
etc. 23
 2. Criminal Law
§ It characterizes certain kinds of wrongdoings as offences
against the State/government and punishable by the
State/government.
§ Proscribes conduct perceived as threatening, harmful, or
otherwise endangering to the property, health, safety,
and moral welfare of people.
§ Aims at punishing criminals & suppressing crimes.
§ Proceeding brought by the Public Prosecutor on behalf
of State/government against the wrongdoers.
§ Essential elements of a crime are “actus reus” (wrongful
act) and “mens rea” (guilty mind).
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 Civil Law and Criminal Law

CIVIL LAW actions CRIMINAL LAW

are between prosecutions are
claimants and usually brought by
defendants. the State against
Claimants must defendants (the
accused). The Some
prove their case on circumstances
prosecution must
the balance of
probabilities. If the
prove its case will entail both
beyond a civil and criminal
claimant is reasonable doubt. If
successful, the the State succeeds,
liability.
defendant will be the defendant will
found liable and be found GUILTY
will have to pay and may be sent to
compensation. jail)
 Civil Law vs Criminal Law
Civil Law (eg: Tort/ Contract Criminal Law
Claimant v Defendant. Eg: State v Defendant eg:
Remedies: Outcome:
Damages/Compensation, injunction, specific Punishment – imprisonment, fine,
performance community service

Standard of proof: on the balance of Standard of proof: beyond all reasonable

probabilities doubt
 Classification of Law
National Law International Law

PUBLIC PRIVATE PUBLIC PRIVATE

• Constitutional • Law of Contracts • Law of Treaties • Jurisdiction of

Law • Law of Trust • Law of the Sea Court
• Administrative • Law of Tort • International • Choice of Law
Law Criminal Law • International
• Criminal Law Commercial
Arbitration

Ashgar Ali Mohamed (2017), Malaysian Legal System, at p 40

 3. Private Law
§ Private law is a part of a civil law legal system that
involves relationships between individuals, such as
the law of contracts or torts (as it is called in the
common law) rather than relations between these and
the government.
§ It affects the and exists to assist citizens in disputes,
rights and obligations of individuals, families,
businesses and small groups that involve private
matters.
§ Its scope is more specific than public law.
§ Similar to civil law.
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 4. Public Law
§ Public law governs relationship between individuals and government,
structure of government and duties & powers of officials.
• A system which deals with the State itself, either by:
1.Its own (among States)
2.Relationship with the individuals living inside the particular State
§ It is divided into 3 types : Constitutional Law, Administrative Law and
Criminal Law.
– CONSTITUTIONAL LAW: Rules regulate structure of principal organs
of government & their relationship to each other & their main
functions.
– ADMINISTRATIVE LAW: Law relating to the organization, powers and
duties of administrative authorities.
– CRIMINAL LAW: as discussed earlier

29
 5. Substantive Law
§ Substantive law is the set of laws that governs how members
of a society are to behave.
§ Defines rights and responsibilities in civil law, and crimes
and punishments in criminal law.
§ It may be codified in statutes or exist through precedent in
common law.
§ Body of rules of law in all branches
§ It is the actual/real rules of law.
§ It lays down people’s rights, duties, liberties & powers.
§ It lays down which behaviours are to be followed and which
are prohibited.
§ Example : That murder is a crime under the Penal Code.

30
 6. Procedural Law
§ Procedural laws are rules on how substantive laws are to be
administered, enforced, changed, etc.
§ Comprises the rules by which a court hears and determines
what happens in civil, lawsuit, criminal or administrative
proceedings.
§ It lays down rules on the manner/methods in which a right is
enforced under civil law or in which a crime is prosecuted
under criminal law.
§ Relates to procedures carried out in civil and criminal case. “The
Civil Procedure” and “The Criminal Procedure”.
§ Civil Procedure is mainly governed by Rules of High Court and
Subordinate Court Rules. Criminal procedure is governed by
Criminal Procedure Code (CPC).
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 6. Procedural Law
§ Thus, a legal action is started by taking out a writ in
civil cases, or a summons / an arrest in criminal cases
and ends by the trial and judgment in court followed
by execution of judgment.

§ Examples :
(i) A legal action in civil matters is began by filing
a statement of claim.
(ii) There are procedures on how to present
evidence in court

32
 7. Common Law

§ Common law is part of the law in England

formulated, developed and administered by the old
common law courts, based on the common customs
of the country.
§ It is the body of law developed by judges, courts, and
similar tribunals rather than by statutes enacted by
legislatures
§ It developed through judicial decisions.
§ It is “judge-made” law and not enacted law.

33
 8. Rules Of Equity
§ Rules of equity is inspired by the ideas of natural justice.
§ Legal maxims that serve as a set of general principles or rules
which are said to govern the way in which equity operates.
§ Originally, it is a body of rules formulated and administered only
by the Court of Chancery. Later it is administered in all divisions
of English court.
§ Described as “a gloss” to the Common Law ie. filling in the gaps
in making the English legal system- which supplement strict
rules of law where their application would operate harshly
§ Nowadays equity & common law are often described together
to mean judicial decisions of the courts of England.

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 9. International Law
§ International law is a body of law composed for the principles & rules of
conduct which States/countries feel themselves bound to observe and
consequently commonly do observe, in their relations with each other
§ It serves as a framework for the practice of stable and organised
international relations.
§ It is divided into 2 types :
1) PUBLIC INTERNATIONAL LAW : Law prevails between States/
countries.
2) PRIVATE INTERNATIONAL LAW: A part of municipal law with
different versions according to each country. Consists of rules that
guide a judge when the laws of more than one country affect a case.

E.g: European Union (“EU”), an organization that deals in international

treaties and uses a multinational/global legal system.

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Thank you and
see you next
week!