Introduction To Law

1.
Introduction to Law and

Malaysia Legal System
Khairul Anuar Bin Abdul Hadi
1.1 Definition of Law
• There is no universal definition.
• Karl Marx : law is part of superstructure which its purpose is to
maintain the base (economy) and it has been used by ruling class to
legitimize the capitalist economic system.
• Aquinas : an ordinance of reason for general good, emanating from
him who has the care of the community, and promulgated.
• Hart : a system of rules, a union of primary and secondary rules.
• Hobbes : the formal glue that holds fundamentally disorganized
societies together.
• Article 160 (2) of Federal Constitution & Section 3 of Interpretation Acts
1948 : ”law” includes written law, the common law in so far as it is in
operation in the Federation or any part thereof, and any custom or usage
having the force of law in the Federation or any part thereof.
• Article 2 of Constitution of the Republic of Singapore : “law” includes written

law and any legislation of the United Kingdom or other enactment or
instrument whatsoever which is in operation in Singapore and the common
law in so far as it is in operation in Singapore and any custom or usage
having the force of law in Singapore.
• Article 13 (3) (a) of Constitution of India: “law” includes any Ordinance,

order, bye-law, rule, regulation, notification, custom or usage having in the
territory of India the force of law
• Director of Forest, Sarawak & Anor v TR Sandah AK Tabau & Ors
[2017] 2 MLJ :
‘The words ‘having the force of law’ in art 160(2) of the Federal
Constitution are highly important as these words qualify the types of
customs and usages which could come under the definition of law.
These important words ‘having the force of law’ must be taken to mean
not all customs or usages come within the definition and implies that
there are customs and usages which do not have the force of law and
hence not within the definition of law.’
1.2 Characteristics of law
Regulate the bahaviour Creates legal certainty

of the people
Characteristics
Justice and equality Social Structure

1.3 Schools of Thought
Natural Positivist
Law Law
Sociological
1.3.1 Natural Law School
• Oldest among school of thought
• Scholars : St Aquinas, Plato and Aristotle
• (1) law discovers through human reasoning by observing the
environments and (2) all law must be created by God and must abide
the laws
1.3.2 Positivist Law School
• Against natural law’s theories of jurisprudence which known for
proponent between law and moral.
• Scholars: Jeremy Bentham, John Austin & HLA Hart.
• Views : (1) Law must be created by human being and not necessary
and (2) the legal system is a “closed legal system” in which the
decisions can be deducted logically from predetermined rules without
reference to social considerations
1.3.3 Sociological Law School
• Sociological School of Law emphasis on the functional aspect of law
• Scholars : Roscoe Pound, Eugen Ehrilich & Emily Durkheim
• Views: (1) reject the idea (most closely associated with legal
positivism) that there can be a value-free explanation of law and (2)
every law that been made must be interlinked to the society.
1.4 Types of Legal System
• Common law : practices by UK, US and Commonwealth countries
• Civil law : practices by most the European countries and originated
from Roman law.
• Religious : System which its code taught by religious traditions.
Generally, it is often associated with theocracy countries.
• Customary : a legal system which associated with traditional cultural
values.
• Socialist : Civil law legal system with modification to a communist
characteristic
1.5 Classification of Law
Private law (individual
International law (law
Public law (individual v between themselves or
that prevails between
State) between government
States)
and individual)
Public
Constitutional
international Contract law
law
law
Private
Criminal law international Tort law
law
Administrative
Trust law
law
1.5.1 Public Law
• Constitutional law : the rights of individual in the State. It also deals
with the questions such as supremacy of parliament and rights of
citizens.
• Criminal law : Codifies the various offences committed by individuals
against the State
• Administrative law : Structure, duties and obligation of public
administrator to the citizen.
1.5.2 International Law
• Public international law : Law governing mutual relationship between
the state and international organizations. Public international law is
heavily influenced by international affairs.
• Private international law : law that is administered between private

citizens of different countries especially in relation to commercial
issues.
1.5.3 Private Law
a) Contract law
• Law that govern the principles of making contract, regulates contractual obligations between
parties and how to enforce such contractual obligations if there is failure of performance of
contract
• Encompasses all sorts of commercial and non-commercial transactions
b) Tort law
• Law that govern the right to a remedy if there is an infringement of a person's rights
• Obligations imposes by law (primarily based on unwritten law)
c) Trust law
• Law that govern an equitable obligation between trustee and beneficiary.
• Obligations imposes by law (primarily based on unwritten law)
1.6 Functions of laws
• To ensure that there is a minimum standard of equality and fairness in one
particular society based on their status.
• Regulates the society including the structure of authority.
• Protect the society from unnecessary harm.
• Mechanism to resolve dispute.
• Maintain a public order for the purpose of peaceful coexistence and stable society.

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1.

Introduction to Law and

• Article 2 of Constitution of the Republic of Singapore : “law” includes written

• Article 13 (3) (a) of Constitution of India: “law” includes any Ordinance,

Regulate the bahaviour Creates legal certainty

Justice and equality Social Structure

• Private international law : law that is administered between private

• Regulates the society including the structure of authority.

• Protect the society from unnecessary harm.

• Mechanism to resolve dispute.

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