Introduction to Legal System PDF

INTRODUCTION TO LEGAL SYSTEM -What is law -Functions of law -Divisions of law -Legal system WHAT IS LAW ◼ -Law is the command that regulates human behaviour and the way of life which is made by the authorities and such law is addressed to the members of a particular society, to do...

INTRODUCTION TO LEGAL SYSTEM -What is law -Functions of law -Divisions of law -Legal system WHAT IS LAW ◼ -Law is the command that regulates human behaviour and the way of life which is made by the authorities and such law is addressed to the members of a particular society, to do something or to refrain from doing something, failure to which is subjected to sanction imposed by the tribunal established by the state. DEFINITION ◼ Oxford Dictionary ◼ -Law is a rule or body of rules established in a community and enjoining or prohibiting certain actions. ◼ Austin ◼ -Law is a command of a sovereign backed by sanction ◼ Salmond ◼ -Law is a body of principles recognized by the state in the administration of justice FUNCTIONS OF LAW -To -Regulate regulate human the behaviour society -To maintain - stability and Maintain promote law and harmony order -To distinguish -Administer and between right and maintain justice wrong -To reconcile -To conflicting punish human the interests offender  DIVISIONS OF LAW CRIMINAL CIVIL -Wrong committed against the state , -Concerned with rights and duties of community and public indiividual to each other Eg: theft, murder,rape etc Eg:law of contract, torts, family law, law of property etc. Prosecutor prosecutes the defendant. If Plaintiff sued the defendant.If successful successful it leads to CONVICTION. it result to judgement for the plaintiff. Defendant may be punished by one of Defendant may be ordered to pay money, the various punishments for example transfer property,to do or not to so death penalty, whipping, imprisonment, something (injuction), to perform a etc. contract (specific performance). Burden of proof: Beyond reasonable Burden of proof: Balance of probabilities doubt PUBLIC PRIVATE -Concerned with cases which -includes all branches of law the state is Involved which concern cases where one individual is claiming against another Eg: criminal law, constitutional law, Eg: contrct, torts, family law administrative law INTERNATIONAL MUNICIPAL -Deals with relationship It governs the between countries. For relationship between the example matters people of the country concerning war and itself peace, peace keeping effort of the United Nation COMMON LAW EQUITY ◼ -Law that was not local law. ◼ A form of legal relief in the It is the law that was event such relief cannot be common to the whole of found in the rules of England. common law. ◼ -Law that is not the result of ◼ Equity is based on a legislation, that is created by judicial evaluation of the custom of the people fairness, reason, good and decision of judges. faith and justice. ◼ -Law that was developed by the old courts of common law as distinct from equity ◼ - LEGAL SYSTEMS ◼ What is legal system? ◼ - Body of rules in operation in a particular society at a given time, together with the constitution that go with them. ◼ Rules in operation in a particular society embracing both the substantive as well as procedural law. ◼ Largely shaped by the unique history of a particular country MALAYSIAN LEGAL SYSTEM: OVERVIEW ◼ Multi-racial country – The national legal system reflects the heterogeneous society – influenced & shaped by unique cultures ◼ Plural Legal System – integration of common law, Syariah Law & customary law BASIC & ORIGIN OF THE LEGAL SYSTEM IN MALAYSIA ◼ - Before the era of Islam ◼ The existence of human race was traced to 2000 and 3000 BC in Peninsular Malaysia. ◼ Funan, Srivijaya and majapahit are Hindused empire in the SEA from the 1st to 13th century. ◼ Generally Malaya was under the influence of Hinduism and Buddism ◼ Malay custom ◼ The era of Islam ◼ The coming of Islam in the 14th century had changed the political and social institution in Malaya and ended the control and influence of Hindu and Buddhist power. ◼ Generally believed -Islam was brought by Muslim traders ◼ The influence of islam can be seen in the 2 Digest of law during malacca Sultanate i.e Undang-Undang Melaka/Hukum Kanun Melaka and Undang-Undang laut Melaka. ◼ There was also a systematic system of administration. ◼ 15 century. Malacca became the centre for Islamic missionary th work in the region. Hukum Kanun Melaka ◼ Was prepared during the reign of Sultan Muzaffar Shah (1446-1459) ◼ Contains 44 chapters, 18 of which had Islamic elements ◼ Eg. Chapters on marriage & divorce, commercial transactions, evidence & procedures, criminal offences etc. ◼ The influence of Malacca Sultanate had moved to Johor and established their Sultanate there later to Pahang and Perak. ◼ Influence of Undang-undang Malacca can be seen in other states i.e Laws of Pahang 1595, Laws of Kedah 1805, Laws of Johor 1789, 99Laws of perak 1878. BRITISH COLONIZATION ◼ -The period of British Colonization has reduced the influence of Islam. The history began with the intervention of the Straits settlements (Penang , Malacca and Singapore). ◼ 3 types of administration: ◼ -Strait settlements ◼ -Federated Malay States ◼ -Unfederated Malay States ◼ English law was introduced indirectly through the advisory and residential system where an advisor or resident was sent to these states by various Agreements and Treaties e.g Pangkor Treaty 1974. ◼ Later English law was introduced directly through legislation based on Indian codification of English common law thus eroded the application of Islamic law. ◼ In East Malaysia the Brunei Sultanate granted James Brooke to be Rajah and Governor of Sarawak in 1842. The Sultan of Brunei granted concession to the British North Borneo Company in North Borneo from 1865 onwards. ◼ By agreement of 1888 Sarawak, North Borneo & Brunei became protected states. ◼ In 1946 the 3 territories formally became colonies of the British. ◼ After the 2nd World war the British had tried to establish the Malayan Union in 1946 on the Malay States. ◼ Under such Union a Governor was appointed to be directly responsible to the colonial office in London. ◼ Effects of Malayan Union: ◼ -Malay Rulers lost their sovereignty ◼ -The non-Malays were given equal status to that of the Malays ◼ British then came up with a formula to regain the sovereignty of Malay Rulers and the position of the Malays. ◼ Such formula contain in the constitution which establish the Federation of Malaya 1948 which prepared Malay towards independence. ◼ In 1955 the 1st general election was held for the new Federal Legislative Council. Alliance won 51 out of 52 seats. In 1956 a constitutional conference was held in London to prepare a draft constitution for Malaya. ◼ Finally Malaya gained its independence from the British on 31/8/1957. ◼ In 1963 Malaysia was formed and in 1965 saw the separation from Malaysia. LEGAL PLURALISM ◼ -The existence of multiple legal systems within one (human) population and/or geographic area. ◼ Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems (cf. customary law). ◼ Malaysia- reflected by the existence of 3 different courts : ◼ Civil court ◼ Syariah court ◼ Native court