The Nature of Law - Week 1

The Nature of Law - Week 1

• Law can be defined as an order from a superior to an inferior.
• Law includes customs and traditions accepted by the State, like jointly acquired property.
• Law is an outcome of societal necessity and expression.
• Law can be unconnected with morality relating to rules for parking or contracts.
• Law may align with morality, such as prohibitions against arrogance and cheating.

Definition of Law

• The meaning of law varies among individuals.
• Law is a set of enacted or customary rules recognized as binding by a community.
• Aristotle believed law represents nature or natural principles.
• Karl Marx viewed law as a tool used by capitalists to control the working class.
• Emile Durkheim posited that law holds society together.
• Lord Devlin argued that law is rooted in morality and religion.
• Sir John Salmond defined law as principles recognized and applied by the State for justice.
• John Austin saw law as a superior's command to an inferior, enforced by legal sanctions.

Basic Ideas of Law

• Law comprises rules or regulations derived from custom or statutes.
• It aims to guide or regulate human conduct.
• Law is imposed and enforced, including an element of compulsion.
• The State holds supreme authority in enforcing laws.
• Law reconciles conflicting interests and serves the people's needs.

Law as Rules

• According to the Oxford dictionary, Law is a system of rules that everyone in a country or society must obey
• Laws consist of rules that dictate permissible and impermissible actions.
• Criminal law prohibits actions like stealing or killing, punishable by imprisonment or death.

Functions of Law

• Law aims to achieve justice in society.
• Key functions include social control, maintaining administration of justice and peace, and resolving disputes.

Social Control

• Law regulates society through regulations and prohibitions, enforced by legal institutions.
• Legal institutions create and maintain rules and norms defining deviant behavior and punishments.
• The legal system involves police, prosecutors, juries, judges, prison guards, and parole boards.

Administration of Justice

• Achieved when justice is the ultimate goal of any legal system
• Judges and courts ensure fair trials and equal treatment under legal rules.
• Rules against bias and the right to be heard ensure justice.

Settlement of Disputes

• Achieved through arbitration, mediation, tribunals when parties cannot solve disputes.

Maintenance of Peace and Social Order

• Achieved through safety for people and is important for societal structure
• Society is maintained through orderly conduct guided by rules.
• Larger societies require extensive laws.
• Public safety is secured through laws involving emergencies from war, disasters, or epidemics.

Determination of Legal Personality

• Law determines legal status for enforcing rights and duties.
• A legal person may be a natural person such as ordinary citizens with rights and duties that vary by age. Minors cannot purchase alcohol in some states
• It may relate to an artificial person such as corporations or governments with legal recognition.

Law in the Federal Constitution

• According to Article 160(2) of the Malaysian Federal Constitution 1957, law includes written law.
• Common law, where operative in the Federation, is part of the law.
• Custom or usage with legal force in the Federation is also included.

Characteristics of Law

• Law is normative, enforcing standards through sanctions.
• It adapts over time with societal advancements, like social media.
• Disobeying the law results in sanctions or punishments.

Basic Principles of Legal Liabilities

• Civil contract, Torts, crime are examples of legal liabilities
• The distinction in legal liabilities resides in the legal consequences of a wrongful act.
• Criminal proceedings involve crimes defined in the Penal Code, such as murder, theft, or drug offenses.
• Civil proceedings address civil wrongs like breach of contract.
• Some acts can lead to both criminal and civil actions - for example, theft. The criminal wrong is theft, and the civil wrong is breach of contract.

Examples of Civil Law Areas

• Civil proceedings are initiated by a Plaintiff in comparison to public proscecutor for example in Malaysia.
• The opposite party in these cases would be Defendant/Respondant to a claim by a Plaintiff/Petitioner
• The citation of the name would Plaintif / Defendant or the criminal would be PP verses the accused
• Civil law requires a balance of probabilities whereas criminal requires beyond resonable doubt.
• Remedies in criminal is a prison/fine/whipping, in civil it would be damages/recission or interjunction.
• Criminal serves to punsih while civil serves to remedy.
• Remedies will be given based on the loss suffered by the Plaintiff while in criminal it is based on the severity of the crime.
• Limitation periods exist in civil/private, but not in criminal law.

Basic Legal Terminology: Case Citation

• Citations include the names of the parties involved with a unique refence point that can be used to locate the case

Titles of Cases

• Example case: Vangedasalam v Mahadevan [1976] 2 MLJ 161
• In civil cases, v is pronounced and
• In criminal cases R v Graham means The Queen representing the state. This is generally called Reg v - where Regina can be pronounced Rejyna. When a King is on the throne, Rex is used instead.

Journal Abbreviations

• Law journals compile decided cases. The citation is important to read the original case.
• For example: Mohd Husin v Shum Yip Leong Rubber and Liew Fa [1966] 2 MLJ 63. In this instance;
• 1966 is the year the case was decided.
• 2 is the volume of the journal
• MLJ is the Malaysia Law Journal
• 63 is the page of the case.

Journals Abbreviation

• ACA - Appeal case
• CLJ - Current Law Journal
• FJ - Federal Judge
• FMLSR - Federated Malay States Law Reports
• J - Judge
• QB - Jurnal Hukum
• JH - Queen's Bench Division

Reading Case Law

• First Instance will look like Plaintiff v Defendant, but on appeal it will be Appellant v Respondant
• Ratio Decidendi means the reason or ground of a judicial decision making a decision precedent for the future
• Obiter dicutm means saying by the way, or observation of a Judge.
• Res Judicata means a final decision pronounced by a competent judicial tribunal.

Topic 2: Customs, Morality, Law & Ethics

• Morality concepts of right and wrong practiced among a society
• Morality may be shaped by religious doctrine

Concept of Immorality and Legality

• Things which are legal and immoral are prostitution and gambling for example.
• Rules which are legal but not connected to the concept of morality include rules for road traffic.
• Moral things that are note legally enforceable including giving respect to the elders
• Rules that are immoral and illegal are rape and murder.

Law and Morality

• Morality shifts without deliberate change, while law is formal by lawmakers.
• Obedience to morality is voluntary, while. law is is enforced and recognised
• Violation of law will lead to punishment whilst violation of morality will lead to guilt and remorse
• Morality centers on motive, while law assesses actions.

Legal Maxims

• Maxims as rules of thumb are established principles in law.
• Judges under Common Law phrase them in Latin to justify judgements.
• Equity lacks fixed rules and depends on the Lord Chancellor's conscience.
• Equitable maxims guide discretion and moral judgment.
• They relax common law rigidity to ensure fairness under universal justice.

Examples of Maxims

• ‘no one should suffer by the act of another’
• ‘he who takes the benefit must bear the burden’
• ‘for every wrong there is a remedy’
• ‘between rights otherwise equal, the earliest is preferred’
• ‘no man is responsible for what which no man can control’

Equity Interpretation of Intention and Action

• Equity prioritizes intention over strict form.
• Equity acts on what should have been done.

Equity and Fairness

• Plaintiffs seeking equitable relief must act fairly.

Equity Preventing Wrongs

• Equity remedies wrongs.

Who Seeks Equity Should Have Clean Hands

• Claimants for remedies must come without misconduct.

Effects of Delay

• Delay negates equity.

Islamic Legal Maxims

• Matters are judged by intention (Al Umuru bi maqasidiha).
• Hardship begets facility means the breach of law may be overlooked depending on circumstances. It could entail bankruptcy for example.

Other common "Maxims"

• A wrong does not excuse a wrong
• No one is responsible for what he can't control
• An act against my will is not my act
• No one is above the law
• Agreement must be kept
• No one can give what they do not have - Nemo dat quad non habet
• There shall be no harm
• Ignorance of law is no excuse
• Let's justice be done even the heaven falls

Even More "Maxims"

• Certainty is not remove by doubt
• Audi Alteram Partem – No man should be condemn unheard
• Custom is a source of ruling
• Harm should be eliminated
• Res Ipsa Loquitor – The things speak for itself
• Law is harsh but it is the law
• A mad man has no will
• Vacant property
• The body of the crime.