Introduction to Law & Jurisprudence PDF

FLW0014 INTRODUCTION TO LAW & JURISPRUDENCE Faculty of Business Management and Professional Studies (FBMP)  A MEANS or DEVICE to REGULATE the economic and social behavior of society TOOLS such as legislation and case-law ...

FLW0014 INTRODUCTION TO LAW & JURISPRUDENCE Faculty of Business Management and Professional Studies (FBMP)  A MEANS or DEVICE to REGULATE the economic and social behavior of society TOOLS such as legislation and case-law  WHAT IS LAW? “Law” is generally the procedures and the rules of conduct or act which one uses one’s every senses in order to harmonise the convenient of oneself and or another. Article 160(2) of the Federal Constitution : - “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 in the Federation or any part thereof.  CHARACTERISTICS Law is a body of enforceable rules governing relationship among individuals & between individuals and their society. Law is a set of general rules. Law is not simply a result of the written law, but a product of the views of judicial decision makers (Legal Realism)  Approved / Passed by lawmaker @ Parliament The body of ENACTED or CUSTOMARY rules recognized by a Customs community as binding. e.g. monogamous marriage for non- muslim Comes with punishment e.g. imprisonment  John John Salmond Austin A command set by a The body of principles superior being to an recognized and applied by inferior being and the State in the enforced by sanctions administration of justice. (punishments).  CLASSIFICATION OF LAW Public law Law that governs the relationship between INDIVIDUALS and the STATE. e.g. Constitutional law and criminal law. International law Principles and rules of conduct which STATES feel themselves bound to observe. e.g. Public international law and private international law. Private law Matters that affect the rights and duties of individuals. e.g. Contract, tort, trust.  LAW IN MALAYSIA - Supreme law that applies throughout the country is known as the Constitution of Malaysia. - This federal law (Constitution of Malaysia) constitutes:- : Legislations : Courts : Administrative aspects of law : Powers of the government : The government monarchy : Rights of the citizens - The Federal Constitution of Malaysia:- : Yand Di-Pertuan Agong – Act as the head of country : Devided into three main authorities, which are... This what we called….  The Executive Involves in administering the nation and ensuring that government policy will be carried out according to the law. The government departments which assist in administering the nation are part of the executive. The duties must be done according to the power granted by the law so that it will not be void and be held ultra vires/no effect. The Legislative Will enact law so that administration could run smoothly. Cannot interfere as to the administration carried out by the executive. Law will be enacted in accordance with the interest of the citizen. Parliament will be the place where law will be enacted and the voice of the people was heard through their representative.  Judiciary The law which was enacted by the legislative will not only govern the people but also the nation including the three government organ. If dispute arise as to whether certain action contradict the law, then it might be challenge in court. The system of court is under this organ plays an important role in determining as to whether action done is legal or illegal. The judiciary will interpret the law enacted by the legislative and at the same time applies the said law in arriving at their decision. All parties will be treated equally and the judiciary is free to make judgments without coercion, fear or favour.  WHAT IS JURISPRUDENCE? Jurisprudence (from latin term : juris prudentia – by the activity of prudentes, advisors, experts); is the philosophy, science, study and application of law. Jurisprudence refers either of two things: i. In common law jurisdictions, it means simply “case law”, i.e. The law that established through the decisions of the courts and other officials. ii. It means the philosophy of law, or legal theory, which studies not what the law is in a particular jurisdiction (i.e; Malaysia or China) but law in general. i.e; those attributes common to all legal systems.  CONNECTION BETWEEN LAW & JURISPRUDENCE Understand the shaping of law & legal practice; and The ways in which our theoretical understanding of law might properly be thought and a basis which makes that practice possible in the first place. JURISPRUDENCE, OR “WHAT IS LAW?” LEGAL “Law is what the sovereign says it is.” POSITIVISM -Decisions stand, regardless of morality. NATURAL “an unjust law is no law at all and need LAW not be obeyed.” -Laws must have a good moral basis. LEGAL “Enforcement of the law is more REALISM important than the law itself.” -enforcers determine if the law is applied in a fair and consistent way.  LAW & LEGAL POSITIVISM The only law is the law created by the legally constituted lawmakers of a government  LAW & NATURAL LAW There is an ultimate “law” or moral system which transcends humanly created law. This law is eternal & unchanging Moral and ethical principals inherent in nature which are discernable through the use of intelligence. The outcome of a particular case should take into account the totality of the circumstances & the realities of the situation from which the case arose.  LAW & LEGAL REALISM Legal Realism is the view that the law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social, economic, and contextual influences. Martin Luther King, Jr. Letter from the Birmingham Jail, April 16, 1963. “There are two types of laws: just and unjust laws.... A just law is a man-made code that squares with the moral law.... An unjust law is a code that is out of harmony with the moral law.... An unjust law is a human law that is not rooted in eternal and natural law.”  LAW & ISLAMIC JURISPRUDENCE (USL AL-FIQH) Shariah refers to the body of Islamic law. The term means “path” which creates the legal framework for the regulation of public and most private aspects of life based on Islamic principles of jurisprudence. Fiqh is the term for Islamic jurisprudence, made up of the rulings of Islamic jurists. Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.  WHY CONFORM TO THE LAW?? 1. John Austin defined law as a command given by sovereign & is backed up by sanction. 2. The fear of the coercive power of the law strikes in the heart of the people is what makes the people obey the law. 3. If the element of fear is removed from the law, there would be no deterrence. 4. Law without sanction would generally be disobeyed.  ABIDING LAW WITHOUT ENFORCEMENT?? 1. Prof Goodhart says some people obey the law irrespective whether the law is followed by sanction. 2. Law is obeyed because of its obligatory character. 3. Obligation is based on the vague feeling of duty arising from the habits of people. 4. People may obey the law realising that it is essential, otherwise there would be anarchy – without the fixed rules, civilized life would come to end.