What’s Law… Well,

There’s no perfect definition

 “Few questions concerning human

society have been asked with such
persistence and answered by serious
thinkers in so many diverse, strange,
and even paradoxical ways as the
question “what is law’.

1
 STILL NO CLUE??

 LET’S TAKE A LOOK AT WHAT FEW

JURISTS HAVE APPRECIATED WHAT
THE LAW MAY BE……

2
 Austin’s definition
 Austin believed that law is the
command of the sovereign backed by
the threat of punishment.

 Every legal system had to have a

sovereign who creates the law
(origin).This is also called legal
positivism
3
 Austin’s Theory Of Law
1.the law is command issued by the
uncommanded commander--the
sovereign;

2.such commands are backed by

sanctions; and

3.a sovereign is one who is habitually

obeyed
4
 Observation by Hart
 Law is the product of the social conditions at the
time it is made.

 The law is not static. Just as relationships

between people or between people and the
Government are not fixed permanently, so the
law changes by responding to the current social
and political values of the dominant culture.

 As societies become more complex so too does

the law. It governs our private relationships
through contract, tort, property, succession, trust
and family law as well as our public relationships
with the State through criminal, constitutional
and administrative law.
5
 Still on Hart…
 Hart identifies three such important differences:
content, origin, and range.

 In terms of content, not all laws are imperative

or coercive. Some are facilitative, allowing us to
create contracts and other legal relations.

 Hart made us known that laws are much

broader in scope than coercive orders, contrary
to the "command theory" of Austin. Frequently
laws are enabling and so allow citizens to carry
out authoritative acts such as the making of
wills or contracts which have legal effect. 6
 Other Jurist’s??
 Hobbs:  Salmond:

 ”The commands of  ” Law is the body

him or them that of principles
have coercive recognized and
power.” applied by the
State in the
administration of
justice.”

7
 Other Jurist’s??
 Kelsen :

 the ‘depsychologized command’. He

used the word command but he
simply means that it impose a duty.

 Austin sovereign does not come into

picture in Kelsen’s definition.
8
 Other Jurist’s??
 Vinogradoff:  B.N. Cardozo:

 ”Law is a set of rules  “Law is a principle or

imposed and enforced rule of conduct so
by a society with established as to
regard to the justify a prediction
attribution and with reasonable
exercise of power over certainty that it will be
persons and things.” enforced by the courts
if its authority is
challenged.”

9
 General Understanding of Law
 Law is a social science.

 It grows and develops with the society.

 The giant strides of the development of

society, in modern times, have created
new problems.

 The law is required to cover new fields and

to move in new directions.
10
 To keep pace with the society, the
function and scope of law remains always
changing.

 Therefore, it is very difficult for a definition

of law given at a particular time to remain
valid for all times to come.

 A definition which is most satisfactory

today might prove narrow and incomplete
tomorrow
11
 Progressing to Development’s of
the Law
 Now that you have a deeper
understanding of what the law is…

 Which I am sure u are still blurred

until u go home and do more
reading, let’s progress to law’s
development’s over the last few
centuries right up till the 19 th
century…
12
 Development of Law
Jurist- Roscoe Pound
‘An Introduction of the Philosophy of
Law’

12 Conceptions of the
development of law

13
 Roscoe Pound presents the long
history of law or the legal institution
of the time and place in universal
terms through his twelve concepts of
what law is in his book -

 ‘An Introduction of the Philosophy of

Law’. (In yr free time u may want to
read this book)
14
 Conception 1
 law is considered as the idea of
divinely ordained rule or set of rules
for human action.

 Eg Mosaic law or Hammurapi’s Code,

handed him ready-made by the Sun
God.

15
 Conception 2
 There is an idea of law as a tradition of the old
customs which have proved acceptable to the
gods and hence point the way in which man may
walk with safety.

 Law is the traditional or recorded body of

precepts in which the custom is preserved and
expressed.

 Whenever we find a body of primitive law

possessed as a class tradition by a political
oligarchy it is likely to be thought of in this way,
just as a body of like-tradition in the custody of a
priesthood is certain to be thought of as divinely.
16
 Conception 3
 Law is considered as the recorded
wisdom of the wise men who had
learned the safe course or the
divinely approved course for human
conduct.
 The Demosthenes reduced the law
of Athens in writing in a primitive
code based on traditional custom.

17
 Conception 4
 Roman jurists –
A philosophically discovered system
of principles which express the
nature of things, to which therefore,
man ought to conform his conduct.

18
 Conception 5
 Law is a

“body of ascertainments and

declarations of an eternal and
immutable moral code”

by some other philosophers.

19
 Conception 6
 There is an idea of law as a body of
agreements of men in politically organised
societies as to their relations with each
other.

 In Athenian city states, such a theory of

philosophical idea would support the
political idea

 and the inherent moral obligation of a

promise would be invoked to show why
men should keep the agreements made in
their popular assemblies.
20
 Conception 7
 Law has been thought of as a reflection of
the divine reason governing the universe,
a reflection of that part which determines
the ‘ought’ addressed by that reason to
human beings as moral entities, in
distinction from the ‘must’ which is
addressed to the rest of creation.

 Such was the conception of Thomas

Aquinas during the Medieval period.

21
 Conception 8
 Law has been conceived as a body of
commands of the sovereign authority in a
politically organised society as to how men
should conduct themselves therein, resting
ultimately on whatever basis was held to
be behind the authority of the sovereign.

 So the institutes of Justinian could lay

down that the will of the emperor had the
force of law.

22
 Conception 9
 The historical school held that a
system of precepts discovered by
human experience.

 They deviated from the early theory

of law as command of the sovereign.

23
 Conception 10
 In the nineteenth century, law –

 “system of principles, discovered

philosophically and developed in detail by
juristic writing and judicial decision,
whereby the external life of man is
measured by reason”

 “Also, the will of the individual in action is

harmonised with those of his fellow men”.

 This opinion is held after abandoning the

then prevailing understanding of natural
law. 24
 Conception 11
 The economic interpretation of law –

 law has been thought of as a body or

system of rules imposed on men in
society by the dominant class for the
time being furtherance, conscious or
unconscious of its own interest.

25
 Conception 12
 Finally, law is made up of the dictates of
economic or social laws with respect to the
conduct of men in society,

 discovered by observation, expressed in precepts

worked out through human experience of what
would work and what not in the administration of
justice.

 This, type of theory likewise belongs to the end of

the nineteenth century, when men had begun to
look for physical or biological bases, discoverable
by observation, in place of metaphysical bases,
discoverable by philosophical reflection.

26
 Sources?

 Go look up how has the law

developed in the 20th century….

We now move on to sources..

How many main sources of law are

there?
27
 SOURCES OF LAW
 Several factors have contributed to
the development of law.
 These factors are regarded as the
source of law.

 The sources of law are customs,

religion, judicial decisions, scientific
commentaries, equity and
legislature. 28
 Custom or usage
 Custom is to society, what law is to the
State.
 Custom is the earliest source of law.

 Jurist Salmond- “Custom is the

embodiment of those principles which
have commended themselves to the
national conscience as principles of justice
and public utility.”

29
 Custom is a habitual course of
conduct observed uniformly and
voluntarily by the people concerned
when they find any act to be good
and beneficial, which is agreeable to
their disposition.

 Custom is practiced and in course of

time by frequent iteration and
multiplication and on account of its
approval and acceptance by the
community for generations.
30
Continued…

 The Privy Council observed: — “A

custom is a rule which in a particular
family or in a particular district or in
a particular sect, class or tribe, has
from long usage obtained the force
of law’. (HarpurShad v. Sheo Dayal,
(1876) 31.A. 259-285 (P.C.)

31
 Customs or usages are those practices
followed repeatedly by people, generation
after generation for the sake of their
convenience.
 A custom is formed in much the same way
as a path formed across a field.
 A custom gradually comes into existence,
In olden days customs regulated the
relations between men.
 They play an important role in the framing
of laws. Most of the laws spring from the
customs and recognised by the State.
 No State can ignore the customs of the
people.
32
 The law of Twelve Tables in Rome is
one of the examples which reflected
people’s customs.
 The ‘Common Law’ in the U.K. is also
an excellent example of customary
law

 The modern society draws its

inspiration from the primitive society
in considering some customary laws

33
 Religion
Another basis of law in most of the countries…
 Religion played a very important role in the olden

days and largely influenced the life of man.

 In ancient societies, life was closely associated

with religious beliefs and practices.
 Religious ideas and practices were used for
promoting the spirit of society and also for
solving certain problems.
 Primitive men believed that law had a divine
origin.
 Religious concepts controlled the human behavior
in society. 34
 Religion played a powerful role as a
sanction behind law in Egypt,
Greece, Rome and India.
 The scriptural sanctions are still followed
in some religious communities.
 The religious law is popularly called
‘personal law’. E.g: The Ten
Commandments (Moses Period),
Sharia (Islamic law), Hindu law,
Halakha (Jewish law) and the divine
law of the Mosaic code or Torah.
35
 Precedent (Judicial Decisions)
 The judicial decisions or judgments
passed by some of the learned
jurists became another significant
source of law.
 The judges are considered to be the
‘wise men of the community’.
 Their interpretation of certain cases
give solution to the present issue
and also to the future situation.
36
 When there is no legislation on the
particular point which arises in
changed conditions, the judges
depend on their own sense of right
and wrong and decide the disputes.

 Such decisions become authority or a

guide for subsequent cases of a
similar nature and they are called
precedents.

37
 Jurist Jenks
 A judicial precedent is “a decision by a
competent Court of justice upon a
disputed point of law, which becomes, not
merely a guide but an authority to be
followed by all courts of co-ordinate or
Inferior jurisdiction administering the
same system, until it has been overruled
by a court of superior jurisdiction or by a
statute of superior authority, e.g., an Act
of Parliament.”
38
 The judicial decisions, even today.
continue to play an important part in the
growth of law.

 In the U.S.A., the Supreme Court through

its power of judicial interpretation has very
much added to the body of the American
Constitution.

 According to Justice Holmes, “Judges do

and must make laws. A judge while
pronouncing a judgment, consciously or
unconsciously, makes new law!"

39
 In the United Kingdom, the House Of
Lords have been instrumental in
developing their common law and in
the interpretation of their statutes.

 and in Malaysia, the Court Of Appeal

and the Federal Court are
continuously coming up with judicial
decisions that will shape the future of
the law in the area involved.

40
 Equity
 Osborn’s Concise Law Dic: Primarily
fairness or natural justice.

 Equity is a kind of judge-made law.

 “HE WHO COMES TO EQUITY MUST

COME WITH CLEAN HANDS”.

41
 Equity is the body of rules
formulated and administered by the
Court of Chancery to supplement the
rules and procedure of the common
law.

 Equity is synonymous with justice.

 Equity follows the law.

42
 ‘Equity’ in the widest sense of the term is
‘aequalitas’ the rendering of equality, the
doing of proper good to all in accordance
with what they deserve.

 So equity is equality. Equity in its broad

and popular sense signifies quality,
justice. and fairness, that a man shall do
unto others as he would be done by.

43
 Common Law v. Equity
 Equity is developed as a result of the
rigidity and inflexibility of the common
law.

 Since the English Judicature Acts of 1873

and 1875, it has been established that in
the event of a conflict between Common
Law and Equity, the latter will prevail.

 Sometimes, in a Court of law the judge

finds that justice cannot be done with the
help of the existing law.

 So what does his Lordship do? Anyone??

44
 His lordship is always expected to give
good judgment according to common
sense and fairness and will resort to
Equitable principles.

 It is an informal method of making a new

law or altering an old law, depending on
fairness or equality of treatment.

 When laws do not fit in a case or where

the existing laws are silent, the principles
of equity are applied and cases are
decided.

45
He who comes to equity must come
with clean hands

 What’s this important maxim?

 Anyone??

46
He who comes to equity must come
with clean hands
 Basically, one must be transparent
and honest if he expects Equity to
come and help him in the matter

47
 WHEN IN CONFLICT, THE MATTER
SHOULD BE DEALT WITH
EQUITABLY
 The same applies in Malaysia by virtue of
Section 3(2) CLA 1956 which enacts that;
 …in the event of conflict or
variance between the common law
and the rules of equity with reference
to the same matter, the rules of
equity shall prevail.

 Equity is only supplementary rather than a

complete set of laws in its own right.
48
 History of Equity
 The distinction between "law" and "equity" is an
accident of history.

 The "law courts" or "courts of law" were the courts all

over England that enforced the king's laws in
medieval times.

 At the end of the 13th century the courts of law

gradually froze the types of claims they would hear,
and the procedure that governed the hearing of those
claims.

 Because the range of legal claims at that time was

quite narrow, legal procedures were painfully
hypertechnical, and jurors were often bribed, with the
result that many meritorious plaintiffs were denied
relief.
49
 However, remedies could also be obtained
through filing a petition with the king, who
held residual judicial power; these filings
were usually phrased in terms of throwing
oneself upon the king's mercy or
conscience.

 Eventually, the king began to regularly

delegate the function of resolving such
petitions to the Chancellor, an important
member of the King's Council.

50
 Still on History of Equity..
 At the time, the Chancellor was
usually a clergyman and the King's
confessor, so he was literally the
keeper of the King's conscience.

 Soon the Chancery, the Crown's

secretarial department, began to
resemble a judicial body and became
known as the "Court of Chancery".
51
 By the 15th century, the judicial
power of the Chancery was
recognised. Equity, as a body of
rules, varied from Chancellor to
Chancellor, until the end of the 16th
century.

 After the end of the 17th century,

only lawyers were appointed to the
office of Chancellor.
52
 History Of Equity
 One area in which the Court of
Chancery assumed a vital role was
the enforcement of uses, a role
which the rigid framework of land
law could not accommodate.

 this role gave rise to the basic

distinction between legal and
equitable interests.
53
 Scientific Commentary
 writings and opinions of learned writers
are also considered to be the source of
law.

 Though by themselves such commentaries

are not regarded as law but because these
commentaries are the basis of judgments
by law courts they are regarded as
sources of law.

54
 Legislature
 Salmond- “legislation is that source of law
which consists in the declaration of legal
rules by a competent authority.”

 Legislature is the direct source of law.

 In modern times, one of the three organs

of the government, legislature, makes
laws.

The legislature frames new laws, amends

the old laws and cancels existing laws in
all the countries.
55
 Continued…

 The aim of law-making is public welfare.

 But the legislature bears in mind certain

factors like customs, religion, equity, etc.
while making laws.

 The executive also makes certain kinds of

laws in the form of ‘rules’ in the modern
age.

56
 Another source of law- Codes
 A code means ‘a systematic collection of statutes,
body of laws, so arranged as to avoid
inconsistency and overlapping’.

 Salmond - Codification is the reduction of the

whole corpus juris to the form of enacted law.

 The codification means promulgation,

compilation, collection and systematization of the
body of law in a coherent form by an authority in
a State competent to do so.

57
 References
 Steven Vago. (1991) Law and Society, 3rd
Ed., Prentice Hall. P.6-14
 Bradney, Cownie, Masson, Neal and
Newell.(1995) How to study law, 3rd Ed.
Sweet and Maxwell, 1995, p3-4.
 Carl F.Stychin, Linda Mulcahy.(2003),
Legal Method, 2nd Edition,Sweet &
Maxwell
 Jain M.P. & Jain S.N., Principles of
Administrative law (1st edition), p.11.
 Hart: Concept of Law (1961) p.1

58