INTRODUCTION TO THE

MALAYSIAN LEGAL
PRINCIPLES

DEFINITION, FUNCTION &

CLASSIFICATION OF LAW
MAIN TOPICS
TYPES OF LEGAL SYSTEMS

 Legal System:
 The framework of rules and institutions within a nation,
regulating individual’s relation with others and between
them and the government
a system of laws and legal institutions established in a
country.
 The major legal systems are:
 Common Law Legal System
 Civil Law Legal System
 Socialist Legal System
 Islamic Legal system
 Common Law Legal System

 “Common Law” is used to describe those legal systems whose

laws are derived from the English system.

-is practiced in U.S.A, Australia, Canada, India,

Singapore, Brunei and Malaysia etc.

 Example: Doctrine of Stare Decisis

-is practiced heavily by the courts and judges are
creative in the interpretation of the legislation made by the
legislature.
 Civil Law Legal System

 the most widespread system of law in the world, sometimes known as

Continental European law.
 Developed out of the Romano-Germanic legal tradition.
 The prototypical civil law country is France, followed by Germany and
Italy. Commonly used in Europe
• Based on Roman law (from broad legal principles and interpretation of
doctrinal writings), derived from Corpus Juris Civilis (the compilations
of Justinian i.e. Code, Digest, Institutes published from 529-534) issued
by the Emperor Justinian.
• The central source of law that is recognized as
authoritative are codifications in a constitution or
statute passed by legislature, to amend a code.
• Civil law today, in theory, is interpreted rather than
developed or made by judges. Only legislative
enactments (rather than judicial precedents, as in
common law) are considered legally binding.
 Socialist Legal System

 The legal system in Communist states. It is based on the civil law system, with
major modifications and additions from Marxist-Leninist ideology. Most
property to be owned by the state, and having special courts and laws for state
enterprises.
 Practiced in Soviet Union & People’s Republic of China
 Article 2 of the USSR constitution - all power in the USSR shall belong to
the people who shall exercise state power through soviet’s of people’s
deputies, which shall constitute the political foundation of USSR.
 Society needs to be reformed. The society is divided between the upper(ruling
class) and the lower class.
 The ruling class used law as a tool of reform and social change.
 Religious Legal system

•Example : Islamic Legal System

•Is practiced by Saudi Arabia, Kuwait, Egypt and
Pakistan.
•Article 2 of the Constitution of Egypt 1980 states as
follows:

“Islam shall be the state religion, the Arabic language

shall be the official state language, and the principles
of the Islamic Shariah shall be the principle source
of legislation.”
 Primary sources of law are the al-Quran and as-Sunnah.
 Secondary sources of law are Ijtihad, Ijma’, Qiyas, Urf and
al-Mursal al-Mursalah.
 Islamic law deals with two broad aspects of regulation:
(i) Man’s duties towards God. (Ibadah)
(ii) Laws governing human relations such as
marriage, divorce, succession etc.(Muamalat)
Definition of Law

 General definition
 Definition under Federal Constitution
 Natural law school
 Positive law school
 Sociological school
 Realism
 WHAT IS LAW?

 It is a set of rules that regulates interactions that people

have with each other, and which sets standards of
conduct between
(1) individuals &
(2) individuals and the government.
 To the layman, law is understood as being a general rule
of conduct.
 The Oxford Dictionary: defines law as ‘the body of rules
(enacted or customary) recognized by community as
binding.’
Federal Constitution
Natural Law School

 Consider law as essential to man.

 Man lives in a social group and by nature law is necessary to
regulate man’s behaviour.
 A theory which says that the existence of law is set by human
nature and has validity everywhere. It is based on what is correct
(morality & ethics). Any man made law which is in conflict with
natural law is not a true law
 St. Thomas Aquinas (1225-1274) in his book Summa Theologica
(Law in General) describes the nature of law as a rule or measure
of action in virtue of which one is led to perform certain actions
and restrained from the performance of others
Positive Law School

 John Austin defined law as command of the sovereign body in the

society (which may be a person, such as a king, or a body of officials,
such as parliament) and these commands are backed by threats of
sanctions, to be applied in the event of disobedience.

 Hence, it is a man made law whereby the ruler can impose penalty to
those who broke the law.
 Sociological Law School

 Considers law as a tool or facilitating mechanism,

making transactions possible between man, and
solving awkward problems as they arise; it may seen
as a mechanism of social control, regulating activities
and interest in the name of the community, a ruling
class or the state.
 KarlMax – views law as a tool and an important
means to shape the society.
Realist

 Rule of conduct laid down by a person acting as judicial

organ of the states. Hence, law is what the judge declared
instead of what is stated in the Statute. It depends on what
was carried out and enforced. Since the law is made by
human being, it is not perfect. Certain laws and doctrines
must have to be altered or modernized in order to remain
current.

 Thus, this school of law hold that the law is not the same
for everyone, and different circumstances and different
people deserved to have their actions judged differently.
Functions of Law
 CLASSIFICATION OF LAW

Law has been classified in various ways:

 COMMON LAW & EQUITY

 NATIONAL LAW & INTERNATIONAL LAW
 PRIVATE LAW & PUBLIC LAW
 CRIMINAL LAW & CIVIL LAW
 SUBSTANTIVE LAW & PROCEDURAL LAW
 WRITTEN LAW & UNWRITTEN LAW
 CLASSIFICATION OF LAW
NATIONAL LAW VERSUS INTERNATIONA
L LAW

PUBLIC LAW VERSUS PRIVATE LAW

CRIMINAL LAW VERSUS CIVIL LAW

SUBSTANTIVE VERSUS PROCEDURAL
LAW LAW

WRITTEN LAW VERSUS UNWRITTEN

LAW

MAN MADE LAW VERSUS GOD MADE LAW

NATIONAL LAW &
INTERNATIONAL LAW

 NATIONAL LAW
- Law that applies in a particular country
- Covers all branches of law except international law
- E.g. criminal law, law of contract, administrative law immigration laws etc.
INTERNATIONAL LAW
- International law is the body of rules of law which governs the relations of
countries inter se – e.g. the rules of war.
- Comprises of the principles and rules of conduct which countries feel
themselves bound to observe in their relations with each other.
- Consists of public international law and private international law.
- Public international law is the law that prevails between the states.
- The Charter of United Nations tried to achieve order and create understanding
between its member nations through conventions and treaties.
- International Court of Justice has been set up to hear the case of disputes
between states or nations.
 Private international law relates to individual governed by different laws. It is
also known as ‘conflict of law’ and is part of municipal law. There will be a
different version of law in every country. The private international law will
guide a judge when the laws of more than one country affect a particular case,
hence the term ‘conflict of law’. E.g. A makes a contract in Rome with B a
Frenchman for the supply of footballs to a team in Madrid. If a takes action
against B in an English court, the will have to decide by the rules of private
international law which law is to be applied: English, Italian, French or
Spanish.
 Public International Law
- Between states (countries)
- International organisations
- Consists: general principles of
law, customs, conventions,
treaties
 Private Int. Law
- Legal disputes between 2
parties from different nations
- Eg: An Australian v An Indian
- Qs: Which system to apply? =
Rules of Private International
law
 PUBLIC LAW & PRIVATE LAW

 Public law
 Public law is the law that governs the relationship between individuals and the
state. Public law may be subdivided into several areas of law dealing with a
particular type of matter affecting the citizen-state relationship. These areas are
constitutional law, administrative law and criminal law, revenue law.
 Constitutional law lays down the structure of government and the rights of
individuals in the state. It deals with questions such as supremacy of Parliament
and rights of citizens. It also covers areas dealing with state and federal powers.
 Criminal law relates to various offences committed by individuals
against the state such as murder, theft etc. It aims at punishing criminals
and suppressing crime. A crime is a wrong against the state for which
punishment is inflicted by the state, the proceedings being brought by the
public prosecutor. Among the forms of punishment are prison sentence
and fine.
 Administrative law concerns the duties and powers of all types of
administrative bodies. E.g. administrative law determines the rights of a
private citizen whose house a local authority intends to acquire
compulsorily.
 Private law
 Private law is concerned with matters that affect the rights and duties of
individuals amongst themselves.

 Some types of private law are contract, tort, trust, land, family,
partnership, agency and commercial law. A case is usually begun by an
individual who is called the plaintiff who sues another party known as
the defendant. The proceedings are known as civil proceedings which
have different procedures from criminal proceeding. The law of contract
is probably the most important type of private law for the citizen as it
covers a wide range of commercial matters including insurance, sale of
goods and bills of exchange.
 CLASSIFICATION OF LAW

LAW

PUBLIC
PUBLIC LAW
LAW PRIVATE LAW

CONSTITUTIONAL ADMINISTRATIVE CRIMINAL FAMILY

LAW LAW LAW CONTRACT TORT TRUST
LAW

PROPERTY COMPANY
LAW LAW

INSURANCE SALE BILLS

OF GOODS OF EXCHANGE
 CRIMINAL LAW & CIVIL LAW
 Criminal Law
o Relates to offences committed by
individuals against the state such as
murder, theft etc. A crime is a
wrong against the state for which
punishment is inflicted by the state.
Among the forms of punishment are
prison sentence and fine.
o The police are the public servants in
charge of the duty of preventing and
detecting crimes.
o The criminal proceedings is brought
by the public prosecutor.
 Civil Law
 Is concerned with matters that affect the
rights and duties of individuals towards
each other.
 Some types of civil law are contract,
tort, trust, land, family, partnership,
agency and commercial law.
 Remedies provided (damages,
injunction, specific performance, etc.)
 A case is usually begun by an individual
called the plaintiff who sues another
party known as the defendant. The
proceedings are known as civil
proceedings which have different
procedures from criminal proceeding.
SUBSTANTIVE LAW & PROCEDURAL
LAW

SUBSTANTIVE LAW
o Laws that provide details of the rights and obligations of the individuals.
o Legal Rules which guide the courts in making decisions
o Content of the law inclusive of case law and statute
o E.g. : Contract Act, Companies Act 1965, Hire-Purchase Act 1967, etc.
 PROCEDURAL LAW
o Rules that determine course of action
o Procedural law lays down the rules governing the manner in which
a right is enforced under civil law, or a crime prosecuted under the
criminal law – e.g. how the case is to be presented, what are the
steps to be taken in a legal action, in what court it shall lie, when it
is to be tried, etc.
o It refers to the rules which govern the machinery, as opposed to the
subject-matter of litigation
o E.g.: Rules of High Court, Criminal Procedure Code, Subordinate
Courts Rules, Evidence Act, etc.
WRITTEN LAW & UNWRITTEN LAW

 Written law refers to the law embodied in a code or statute or

in a state’s constitution.
 Whereas, unwritten law refers to unwritten rules, principles,
and norms that have the effect and force of law though they
have not been formally enacted by the government . The law is
embodied in the decisions of the courts, customs, traditions,
practices, usages that have been recognized and enforced by
the state.
THE END