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- 1. WHAT IS LAW? INTRODUCTION TO LAW 1 LAW012 NOR AKHMAL HASMIN 1
- 2. a) Definition of law - general definition - definition given by jurists b) Function of law c) Different perspectives of law TOPIC OUTLINE 2
- 3. WHAT IS LAW????? - What is law as a definition 3
- 4. General definition: • No specific definition on what is LAW – many interpretations of law according to belief, value, custom etc. • Law is a system of rules where it guides and directs our activities in much of day to day life (framework of life) – our life is built upon the foundation of legal rules. • Law is a set of rules that guide our conduct in society and enforceable by public agency – everyone has to follow or otherwise they have to face sanctions or penalty as consequences of its breach. • GENERAL RULE OF CONDUCT. • Oxford English Dictionary: “ The body of enacted or customary rules recognised by community as binding.” 4
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- 6. Definition of law by jurists a)Jean Jacques Rousseau • Natural law jurist • Argue that law reflects essentially moral and unchangeable law of nature. • Rules which permit or prohibit certain action and must be for the benefit of the public – prescribe the proper behaviour of human being. • First principle of nature ‘good is to be done and promoted, and evil is to e avoided.’ • Any man-made law which is in conflict with natural law is not a true law. In order for a law to be part of a legal system it should be in conformity with current moral principals. 6
- 7. b) John Austin • Positive law • Define law as – law is the command of the sovereign authority and the command is backed by sanction. • Rules created by ruler who can give penalties if the rules are broken. c) HLA Hart • Law is made up of institutional facts like orders and rules and those are made by people thinking and acting. • Rules and regulation that come from people or group of people. 7
- 8. d) Roscoe Pound • Sociological view • Law is an instrument of social engineering – to maximize the fulfillment of interest of the community, provide smooth running of the machinery of society. • Controlling device used by the upper class on the lower class. e) John Salmond • Realist view • The body of principles recognised and applied by the state in the administration of justice • Rules of conduct laid down by the person acting as judicial organ – law is what judge declared. • Realism means relating to the real world, the world as it actually operates. 8
- 9. Administration of justice – what lawful and unlawful Granting powers to certain bodies/institutions Maintaining standard Maintenance of peace and social orders Resolving of disputes/conflicts Social control – prescribe punishment and remedies in the event of breach. Social engineering/ construction Determination of legal personality Functions of law 9
- 10. a)Law as a cultural expression • Law and people cannot be isolated from each other – since law is connected to social life of the people and developed in certain places and in certain communities. • Law as a result of the slow development of society through centuries. • Savigny (historical jurist) believes that legal system was part of the culture of a people and it is the expression of the people - from habit to value, from custom and tradition to rules and regulation. • Montesquieu states that the law was the product of custom, local manner and physical environment where a DIFFERENT PERSPECTIVES OF LAW 10
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- 12. b) Law as divine revelation • Natural Law jurists believe that all laws are based on divine revelation or some of the right reason immanent in the nature of thing. • Law of the nature or moral laws. • Islam and Christian have their own divine revelation i.e. the Holy Quran and Bible; functions as God’s decree to its followers that must be conformed and followed. • Contrary to the belief of positivist that argue that law must be enacted by the legislator. 12
- 13. c) Law as an instrument of government • Law is intimately associated with the nature of the State – because law is an expression of the will of the State i.e the government. Example : law introduced by the government must be abide by the citizens – 6% GST. • Marxism-Leninism - Law is used as the only tool of the State to maintain and safeguard the interest of the capitalist class, a dominant group in society. • Malcolm Wood claims that law is but one a weapon in massive political tool- combination of forces, actions and inactivity. E.g. forces including repression, covert practices, media manipulation, censorship etc. 13
- 14. d) Law as a legal system • The legal system consist of – Parliament, Judiciary, Executive, legal profession and etc. • The existence of a legal system is measured via: Statute, Regulation, Act - Laws in that particular society Parliament (Legislature) - Institution for making and amending the laws Judiciary (Court) - Agency that determines the violation of the laws / settling disputes between people. Law Enforcers - Agency to enforce the law 14
- 15. Several factors have contributed to the evolution of law. a)Custom • Based on the general usage of the family, clan or tribe – shaped by the cooperative action of the whole community and not by legislation or sovereign. • Initially not law but when States recognizes the these customary rules as binding, they acquire status of law. b) Religion • The Mohammedan Law – Quran and shariat • Hindu law – Code of Manu SOURCES OF LAW 15
- 16. c) Judicial decision • Judge made law – related with the Common Law system. d) Legislation • Law enacted by the parliament – where sovereign power will issue a decree concerning new matters. Example: ISIS threat in Malaysia – lead to the passing of POTA • It considers as one of the most prolific and direct source of law. e) Scientific commentaries • Discussion by the eminent jurists also modify and developed law – express their opinions and commentaries. 16
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- 18. a) PUBLIC LAW • The law that govern relationship between individual and government. • Includes: a) Constitutional law b) Criminal law c) Administration law b) PRIVATE LAW • Governs the relationship between individuals -compensate the injured parties, to recovered property and to enforce obligation. • Includes: a) Tort d) Trust b) Contract c) Family 18
- 19. c) SUNBSTANTIVE LAW • Law that classifies right and responsibilities of individual d) PROCEDURAL LAW • Lays down the rules governing how things should be done. Example: How summon should be serve How to arrest should be made e) INTERNATIONAL LAW • Law that covers a relation of country inter-se d) NATIONAL LAW • Law that governs a relation between states. 19
- 20. WHAT WOULD HAPPEN IF THERE WERE NO LAWS??? 20
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