Introduction to Law & Legal Method PDF

RECITATION OF DOA BEFORE CLASS 1 Pray according to your belief FLEXs (Flexible education with soul)  TOPIC 3: INTRODUCTION TO LAW AND LEGAL METHOD Dr Shariffah Nuridah Aishah Syed Nong (FUHA, UNISZA)  ICE BREAKING SESSION… What is law ?...

RECITATION OF DOA BEFORE CLASS 1 Pray according to your belief FLEXs (Flexible education with soul)  TOPIC 3: INTRODUCTION TO LAW AND LEGAL METHOD Dr Shariffah Nuridah Aishah Syed Nong (FUHA, UNISZA)  ICE BREAKING SESSION… What is law ? Why do you study law ? Where can you find law ? When should you know law ? How should you study law ?  1. WHAT IS LAW ? LITERALLY : Rules of conduct. OXFORD DICTIONARY: A body of enacted or customary rules recognized by a community as binding. SIR JOHN SALMOND : A body of principles recognized and applied by the State in the administration of justice. JOHN AUSTIN : A command set by superior being to an interior being and enforced by sanctions. MALAYSIAN LAW: Article 160(2) of Federal Constitution & Item (43 C) of Section 2(1) of Interpretation & General Clauses Ordinance 1948 : “Law includes written law, common law (in so far as it is in operation in federation / any part) and any custom/usage having the force of law in the federation/any part thereof”.  6 2. WHY DO WE NEED LAW ? ✓As a guidance of human conduct. ✓ To encourage the doing of what is right/just in a particular situation. ✓As a method of social control fostering social order. ✓ To attain justice in society. Relates to the concept of right and wrong, fairness and equality. ✓To control harmful activities ✓To balance the interests (demand/desire/ expectation which individual/ group seek to satisfy). ✓To protect the freedom of individual or group. ✓Etc…..  Basis of morality: concept of right & wrong. MORAL vs RELIGION Morality and religion is relationship between LAW religious views & morals. & Many religions have value frameworks regarding personal behavior meant to guide MORALITY adherents in determining between right and wrong. Moral governs relationship bet. man & man but religion governs relationship bet. man & God. Moral wrong is harmful to social but religion wrong is a sin which is harmful to social & itself. ✓ Morality is perpetual BUT law may be amended. ✓ Morality is optional BUT law makes human conduct obligatory. ✓ Consequence of moral breaking is shame/guilt BUT law-breaking leads to punishment in form of imprisonment/fines. ✓ Morality is general application & emerges from particular groups BUT law is specific ie relates to particular situation & emerges from Government. ✓ Law accomplishes obedience through the threat of sanctions if we disobey legal rules, BUT in morality, bad acts may result in guilt and condemnation, and good acts may result in virtuous feelings and praise. 3. CLASSIFICATIONS OF LAW CIVIL & CRIMINAL LAW INTERNAT PRIVATE & IONAL PUBLIC LAW LAW CLASSIFICATI ONS OF LAW COMMON SUBSTANTI LAW & VE & RULES OF PROCEDUR EQUITY AL LAW Concern with rights & duties of individuals towards each other (private relations between members of a community) rather than criminal, military, or religious affairs. Action is brought by individual against another individual / a group of individuals. Aim : giving compensation to persons injured or to enable property to be recovered or to enforce obligations like contracts and trusts. Contains : Law of Contract, Law of Tort, Law of Property, Law of Succession, Family Law etc. 1. Civil Law Characterizes certain kinds of wrongdoings as offences against the State/government and punishable by the State/government. Prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people. Aim : punishing criminals & suppressing crimes. Proceeding is brought by 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). 2. Criminal Law 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 rights and obligations of individuals, families, businesses and small groups, and exists to assist citizens in disputes that involve private matters. Its scope is more specific than public law. Similar to civil law. 3. Private Law  4. Public Law Divided into 3 types : Constitutional Law, Administrative Law and Governs relationship between Criminal Law. individuals & government, structure of government and CONSTITUTIONAL LAW: duties & powers of officials. Regulates structure of main organs of government & their relationship to each other & their main functions. ADMINISTRATIVE LAW: Relates organization, powers & duties of administrative authorities. CRIMINAL LAW: as discussed earlier  5. Substantive Law Defines rights & May be codified in Laws that governs responsibilities in civil statutes or exist how members of a law, and crimes and through precedent in society are to behave. punishments in common law. criminal law. Lays down which Lays down people’s It is the actual / real behaviours are to be rights, duties, liberties rules of law. followed and which & powers. are prohibited. Example : Murder is a crime under Penal Code. 6. Procedural Law Relates to procedures Rules on how carried out in civil and substantive laws are criminal case -“The to be administered, Civil Procedure” and enforced, changed, “The Criminal etc. Procedure”. Comprises rules by Lays down rules on the which a court hears and manner in which a right determines what is enforced under civil happens in civil, lawsuit, law or in which a crime criminal or is prosecuted under administrative criminal proceedings. law.  ▪ CIVIL PROCEDURE is governed by Rules of High Court & Subordinate Court Rules, while CRIMINAL PROCEDURE is governed by Criminal Procedure Code (CPC). ▪ 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. https://www.youtube. (ii) There are procedures on how to com/watch?v=xRfFV3 UzBG8 (3 min) present evidence in court. A part of the law in England formulated, developed & administered by the old common law courts, based on the common customs of the country. The body of law developed by judges, courts, and similar tribunals rather than by statutes enacted by legislatures Developed through judicial decisions. It is “judge-made” law and NOT enacted law. 7. Common Law  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. 8. Originally, it is a body of rules formulated and administered only by the Court of Chancery. Later it is administered in all Rules divisions of English court. of Described as “a gloss” to the Common Law ie. filling in the Equity gaps in making the English legal system- which supplement strict rules of law where their application would operate harshly Today, equity + common law are usually described together to mean judicial decisions of the courts of England. ▪ 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 ▪ Serves as a framework for the practice of stable & organized international relations. ▪ 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.  22 4. WHERE CAN YOU FIND LAW ? 1. STATUTES / LEGISLATIONS 2. COURT’S DECISION (CASE LAW) 4.1 STATUTES 24 4. 2 CASE LAW  PRE-READ A CASE LAW.. STEP 1: Read the case name. STEP 2: Read the first or two paragraphs to understand who the parties are and the issue that brought them to court. Most cases will give the procedural history, parties and issues in the first two paragraphs. STEP 3: Read the first sentence of each paragraph. To get an idea of the structure and general direction that the case is going towards. STEP 4: Read the last paragraph or two so that you understand the decision/judgment of the case. Not every decision will be given in the last two paragraphs, but the author usually will sum up the ideas of the case as a conclusion in the final paragraphs. DISTINGUISH MATTERS OF FACT & MATTERS OF LAW CASE LAW  MATTERS OF FACT : Determined by the senses or testimony of witnesses who describe what they have perceived through the senses of sight, smell, touch, taste & hearing. An issue in a case is a fact - its resolution depends on the reliability/credibility of evidence like witness’s testimony. An issue which resolution depends on probabilities like by way of inference from circumstantial evidence is also a fact. Normally all these issues constitute answers to the question “what happened ?” MATTERS OF LAW : ▪ Matters which is determined through the use of statutes, rules, court decisions & interpretation of legal principles/laws. ▪ If there is a dispute regarding the existence of a law or actual scope of a law or a dispute over the meaning of words of a statute, it is regarded as dispute concerning a matter of law. ▪ WHY matters of fact & matters of law must be differentiated ?? a) To divide the function between judge and jury. b) Only decision on matters of law can constitute a precedent which can be cited / followed in future cases. c) Only matters of law may be raised on appeal. WHERE TO FIND CASE LAW? IN LAW REPORTS..  Importance of Law Report ✓Reports concerning important cases only which have been decided by superior courts. ✓Thus, not all cases decided by all courts are reported. Cases are selected. Only cases which have legal interest are included in the law reports. ✓Cases which are not reported in law reports do not mean that they are not important - they may be cited as precedent also. ✓Law reports assist judges & lawyers. Important for them to look up authoritative decisions to determine points of law / to decide cases. Law reports become main source of information to them.  Law reporting is undertaken by private publishers. Editorial Board will decide which cases to be reported in law report from the court records. CONTENTS A full law report usually includes : OF LAW a. Name of the parties involved REPORT b. Court that decided the case c. Name of judges d. Date of hearing e. Headnotes/summary of decision f. Lists of cases discussed by judge g. Facts of the case h. Names of counsels & arguments i. Judgment of the case  Names of parties The court The date The judges The issues Brief facts  Brief facts Headnotes List of cases Name of counsels Full Judgment  Earliest law report was in Straits Settlement. Compiled by Robert Carr Wood, called “A Selection of Oriental Cases Decided in the Straits Settlements”. Contained reports of 12 cases between 1835-1869. In 1877 Stephen Leichester History compiled “Straits Law Report”. William Norton Kyshe collected cases called “Cases Heard and Determined in of Her Majesty’s Supreme Court of the Settlements 1808- Malaysia 1884. It has 4 volumes : Vol 1contained civil cases, Vol 2 contained criminal, admiralty, bankruptcy cases, Vol 3 n Law contained Magistrate’s Appeal Cases. Vol 4 was published in Reports 1890. 1888 : First time in Malaya, a monthly legal newspaper was published called “The Straits Law Journal”. 1922: Law reporting in Federated Malay States started with the publication of “Law Reports of the Federated Malay States”. 1932 : Malaya Law Journal was published under editorship of Dr. Bashir Malal. Contains cases from SS & FMS. Aim to assist legal practitioners & cope with rapid increase in cases. Today law reporting in Malaysia is a matter of private enterprise. Several Law Reports : a. Malayan Law Journal (MLJ) b. Malaysian Current Law Journal (CLJ) c. All Malaysia Report (AMR) d. Sarawak Law Report (SLR) e. Jurnal Hukum (JH) f. Syariah Current Law Journal (CLJ)  HOW TO CITE / READ A CRIMINAL CASE ? ENGLISH CASE: PP v. George / Government of XX v. George / Reg v. George English criminal cases is usually cited by name of the Crown (Queen / King) against the accused person. English criminal case is called “Reg. v. Willans”. Reg is short form of Regina for Queen. But when a King is on the throne, Rex. is used : Rex. v.Willans Both Reg. and Rex. abbreviate R. Thus can also cite: R. v.Willans. Sometimes the title of case contains the name of policeman instead of Rex or Reg. It occurs when the case is tried before Magistrates.  MALAYSIAN CASES Usually cited by the name of Prosecutor on behalf of the government against the accused person (Orang Kena Tuduh / OKT). Example : PP v. Sazali. PP means Public Prosecutor (Pendakwa Raya) acting on behalf of the government. Sometimes the prosecutor is the Deputy Public Prosecutor (DPP). If the accused person appeal, the name becomes Sazali v. PP.  HOW TO CITE / READ A CIVIL CASE? Usually cited by the names of parties involved in the case. Party who sues is called Plaintiff. The party who is sued is called Defendant. The rule in Malaysia is quite similar with English cases. Example of English case is “Rylands v. Fletcher”. If the Queen is a party to the case, she is called “The Queen” and likewise the King : The Queen v. Fletcher / The King v. Fletcher. The word “v.” in civil cases is always pronounced “and”.  If Defendant appeals, the name of case will be reversed. Example of Malaysian case : Razi v. Salim. If government is a party to the case, it is called “The Government of Malaysia” for federal level or the name of the state for state level: The Government of Malaysia v. Salim / The State of Kelantan v. Salim If Sultan or YDPA is a party to the case, his name will appear but the case will be tried in Special Court only: Sultan Haji Ahmad Shah v Salim  If the case relates to interpretation of will (wasiat), the name of case is “In re (in the matter of) somebody/something” for example In re Smith. Example of Malaysian case is Re Norijah or Re Dato Bentara Luar. If the case relates to probate (validity of a will), the name of the case is In Bonis Smith or In the Goods of Smith. Example of Malaysian case: In the Goods of Abdullah. WHERE ELSE TO FIND CASE LAW? in the casebooks ✓Besides reading cases in law reports, you may have a good case book for each subject of law studied. ✓Examples of case book: Malaysian Legal History: Cases & Materials, Cases & Materials on Torts, Casebook on Contract Law. ✓Advantages of using case books ; i. Saves you from making own notebook of cases. ii. Case books eliminate immaterial facts, thus helping you in search for only legally material facts. However, the use of case book does not mean that you can ignore the original law reports. For important / leading cases, you must read the case in full in the law reports & use the case book only for revision. In doing assignments - also you have to refer to the law reports because case books are not enough.  Don’t have to remember all facts stated in the case. HOW MUCH OF A Remember the important CASE TO facts only according to the REMEMBER? nature of your course. Important to remember the laws / principles of the case.  Example of full citation of a case: Name of law report Name of parties Tong v. Sam 2 MLJ 34 Page of Volume law of law report Year of report decision  For test / exam: Remember only the name of parties – no need to write the full citation of the case. Write “Tong v. Sam” only. Just remember the names of persons involved and not the year, volumes & page.  For assignment / report: Write the full citation of the case. Write the name of parties “Tong v. Sam” in the text/contents and write the other info “ 2 MLJ 34” in the footnote at bottom of page. Example of footnote for case law 57 Now I know that… End of Topic