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CLASSIFICATION OF LAW

INTRODUCTION
Legal rules can be classified in many
different ways.
Not all legal rules are of the same type.
They show differences in purpose, in
origin and form, in the consequences
when the rules are breached, and in
matters of procedure, remedies and
enforcement.
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•  The classification of legal rules
sometimes overlap.
•  For example, the legal rules defining
murder (in Malaysia) is a rule of
criminal law rather than civil law; of
public law rather than private law and
of national law rather than
international law
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• There are
different ways of
classifying law.
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The classification of law into
CRIMINAL LAW AND CIVIL LAW
•  One of the most fundamental classifications
in law is the classification between criminal
and civil law.
•  Newcomers to the study of law tend to
assume that criminal law occupies the bulk
of a lawyer s case load and of a law
student s studies.
•  This is an interesting by product of the
portrayal of the legal system by the media
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•  Criminal law weighs very lightly in
terms of volume when measured
against non criminal (civil) law.
•  There are more rules of civil law than
there are of criminal law.
•  More court cases involve breach of the
civil law than involve breach of the
criminal law.
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•  Criminal law means just the law relating to
crime. Civil law can be taken to mean all the
rest.
•  The distinction relies not so much on the
nature of the conduct which is the object of
a legal rule but in the nature of the
proceedings and the sanctions that may
follow.
•  Sanction = A threatened penalty for
disobeying a law or rule 7
•  Some kinds of conduct give rise to criminal
liability, some to civil liability and some to
both civil and criminal liability.
•  The seriousness of conduct does not
necessarily determine the type of liability to
which it gives rise; conduct which is contrary
to the criminal law is not always worse than
the conduct which is against the civil law.

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•  Some conduct which might be considered
criminal gives rise only to civil liability or to
no liability at all and some conduct which
may be considered harmless may give rise to
both criminal and civil liability.
•  It will be easier to see that harm, morality
and the classification between criminal and
civil law do not follow any clear pattern.

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•  Concepts of morality have had some
influence on the development of the
law but historical incidents, political
policy and pragmatic considerations
have played just as important a part in
developing the law.

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•  Even when a person s actions clearly
infringe the criminal law or civil law or
both it does not necessarily mean that
any actual legal consequences will
follow.
•  In criminal and civil cases persons with
the legal right to take any legal action
have a discretion as to whether or not
to initiate legal proceedings 11
•  There is a difference between liability
and proceedings.
•  Conduct gives rise to liability.
•  It is for someone else to decide
whether or not to take the matter to
court by starting proceedings.

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CRIMINAL PROCEEDINGS
•  In criminal proceedings a prosecutor
prosecutes the accused.
•  The case is heard in the Magistrates Court
or the Sessions Court or the High Court
depending on the seriousness of the
offence.
•  The prosecutor will have to prove to the
court beyond reasonable doubt that the
accused committed the offence charged.
13
•  The court will have to determine
whether or not the accused is guilty.
•  A finding of not guilty will lead to the
accused s acquittal.
•  A finding of guilty will lead to a
conviction and may lead to a sentence
of imprisonment or some other form
of punishment such as a fine or
probation. 14
•  One of the major objectives of the
criminal law is to punish the wrongdoer
for action which is deemed to be
contrary to the interests of the state
and its citizens.
•  Criminal proceeding do not have as a
major objective the provision of
compensation or support for the victim
of crime. 15
•  It is significant that the exercise of the
discretion to prosecute is seldom
carried out by the victim of the crime.
•  Criminal proceedings are normally
initiated by the state or its agents and
brought in the name of the prosecuting
official eg PP v Mat.

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CIVIL PROCEEDINGS
•  In civil proceedings it is generally the
plaintiff (the party harmed) who sues the
defendant although in some areas of the
civil law other terms are used.
•  For example in a divorce case the petitioner
sues the respondent.
•  A civil case will be heard in the Magistrates
Court, Sessions Court or the High Court
depending on the nature of the case and
the size of the loss involved. 17
•  The plaintiff usually has to prove on the
balance of probability that the events took
place in the manner claimed.
•  This is a lower standard of proof than in
criminal cases.
•  If the plaintiff proves their case the court
will make some kind of order which depends
upon the kind of case and what the plaintiff
has asked for.
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•  The basic choice before the court is
whether to order the defendant to
compensate the plaintiff for their loss
by awarding damages or to order the
defendant to act or refrain from
acting in some specific way in the
future or to make both kinds of orders.

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•  The function of civil law is to provide
individuals with remedies which are
enforceable in the courts where they have
suffered a wrong which is recognised by a
statute or decided cases.
•  The civil law creates a framework which
delineates the rights and obligations of
individuals in their dealings with one
another.
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•  It is primarily founded on the law of
contract and tort which are mainly
areas of common law.
•  The law of contract determines which
forms of agreement entered into
between individuals are legally binding
and on whom they will be binding.

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•  The law of tort covers categories of civil
wrong other than breach of contract which
may give rise to a legal causes of action.
•  It includes the law of negligence, trespass,
libel and slander.
•  Just as a set of facts can give rise to a
conduct which may result in both civil and
criminal proceedings, so a set of facts can
give rise to actions in contract and tort.
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•  Most plaintiffs primary motivation for
bringing civil proceedings will be to obtain
an effective remedy for the civil wrong
which has been perpetrated.
•  The fact that there is liability will not
necessarily mean that they will take action.
•  For example there is no point in suing a
person for damages if you know they have no
money.
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•  The emphasis of the civil law has changed
over the last hundred years with an increase
in the role of the state and the importance
of legislation as opposed to case law as the
major source of law.
•  Civil law does not just regulate relations
between individuals covering such matters as
their property transactions but also deals
with relations between the state and
individuals. 24
•  It covers unemployment and social
security benefit entitlement, tax and
planning questions and council tenants
relationships with their local
authorities. All of these areas are
covered by statute law which has
created new rights and obligations.
•  These are often enforced in tribunals
as opposed to courts. 25
•  Statutory provisions have also been enacted in order
to minimize the common law rights which have
resulted from the judicial development of contract
law and the notion of freedom of contract.
•  For example employment protection and landlord
and tenant legislation give employees and tenants
statutory rights which will often modify or override
terms in their contracts which give their employers
or landlords specific rights to dismiss or evict them.

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The classification of law into
NATIONAL LAW & INTERNATIONAL
LAW
•  The term national or municipal law is used
to mean the internal legal rules of a
particular country in contrast to
international law which deals with the
external relationships of a state with other
states.
•  In Malaysia national law is normally
unaffected by international legal obligations
unless these obligations have been
transferred into national law by an Act of 27
Parliament.
PUBLIC INTERNATIONAL LAW
Public international law regulates the external
relations of states with one another.
It is a form of law very different from national
law.
There is no world government or legislature
issuing and enforcing laws to which all
nations are subject.
The international legal order is essentially
decentralised and operates by agreement
between states. 28
•  This means that the creation,
interpretation and enforcement of
international law lies primarily in the
hands of states themselves.
•  Its scope and effectiveness depends on
the capacity of states to agree and the
sense of mutual benefit and obligation
involved in adhering to the rules.
29
•  International law is created in 2 main
ways :
•  1. by treaty
•  2. by custom
•  Treaties are agreements between 2 or
more states and are binding on the
states involved if they have given their
consent to be so bound.
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•  customary law is established by
showing that states have adopted
broadly consistent practices towards a
particular matter and that they have
acted in this way out of a sense of
legal obligation.
•  International law is neither
comprehensive nor systematic.
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•  Only a few treaties or customary rules
involve the majority of world states.
•  Most are bilateral understandings or involve
only a handful of parties to a multilateral
agreement.
•  Dispute about the scope and interpretation
of international law are rarely resolved by
the use of international courts or binding
arbitration procedures of an international
organization. 32
•  This is because submission to an
international court or similar process is
entirely voluntary and few states are
likely to agree to this if there is a
serious risk of losing their case or
where important political or national
interests are at stake.
•  Negotiations are far more common.
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•  International courts are used occasionally for
example
•  where settlement is urgent or
•  protracted negotiations have failed where
the dispute is minor or is affecting other
international relations or
•  In cases where failure to settle is more
damaging than an unfavourable outcome.

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•  Where international law has been breached
an injured state must rely primarily on self
help for enforcement.
•  There is no effective international
institutional machinery to ensure compliance
when the law is challanged.
•  This means that in practice powerful states
are better able to protect their rights and
assert new claims.
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•  Breaching established rules is one
rather clumsy way of challenging
international law.
•  In a decentralised system change can
only be effected by common consent or
by the assertion of a new claim being
met by inaction or acquiescence by
others.
36
•  The lack of powerful enforcement machinery
does not mean that international law is
widely disregarded.
•  On the contrary legal rules are regularly
followed not least because states require
security and predictability in the conduct of
normal everyday inter-state relations.

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•  International law also play an
important role in the promotion of
common interests such as controlling
pollution, restricting over fishing or
establishing satelite and
telecommunication link-ups

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•  A large number of global or regional
international organizations have been
established for the regulation and
review of current inter-state activities.
•  The best known example though
perhaps not the most effective is the
United nations whose primary function
is the maintenance of international
peace and security. 39
PRIVATE INTERNATIONAL LAW
•  Private international law (aka
Conflict of laws) is a set of procedural
rules which determine which legal
system, and the law of which
jurisdiction, applies to a given dispute.
The rules typically apply when a legal
dispute has a "foreign" element such as
a contract agreed by parties located in
different countries 40
-  For example : Ali a Malaysian citizen
entered into a Contract in Singapore
with Lenny, an Indonesian citizen. Ali
breached the contract.
Private international law deals with a
variety of topics, such as contracts,
marriage and divorce, jurisdiction,
recognition of judgments, child
adoption and abduction, and many
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other areas.
•  The three branches of conflict of laws are
•  Jurisdiction – whether the forum court has
the power to resolve the dispute at hand
•  Choice of law – the law which is being
applied to resolve the dispute
•  Foreign judgements – the ability to recognise
and enforce a judgement from an external
forum within the jurisdiction of the
adjudicating forum
42
•  National laws are the primary sources
of private international law. However,
private international law is also
embodied in treaties and conventions
(for example, the Hague Conventions
on Private International Law), model
laws, legal guides, and other
instruments that regulate
transactions. 43
•  However, there is no well-defined body
of private international law.

44
•  Conflict of law arise btw 3 states.
•  To solve the problem, court will
consult the rules of Private
International Law ie refer to express
agreement in the contract (if any) or
refer to elements that close
connected.

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The stages in a conflict case
•  The court must first decide whether it
has jurisdiction and, if so, whether it is
the appropriate venue.
•  The next step is the characterisation of
the cause of action into its component
legal categories

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•  Each legal category has one or more choice of law
rules to determine which of the competing laws
should be applied to each issue.
•  Once the applicable law is decided, that law must
be proved before the forum court and applied to
reach a judgment.
•  The successful party must then enforce the
judgment which will first involve the task of
securing cross-border recognition of the judgment.

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The classification of law into
COMMON LAW & EQUITY
•  English law has deep historical roots
•  Common law and equity refer to the system of rules
that originally developed in different courts within
the legal system.
•  Common law is the rules of law derived from
judicial decisions rather than statute.
•  Common law rules arose first.
•  Later these rules were seen as being over formal
and concerned too much with the way a case was
presented rather than with the justice in the issues
at stake.
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•  Thus a less strict term of equitable
rules was developed.
•  In time the rules of equity also became
formalised.
•  Eventually the different courts were
merged and now all courts can apply
both the rules of common law and
equity.
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COMMON LAW
•  ASSIGNMENT FOR GROUP 1
•  TO BE PRESENTED DURING
TUTORIAL
•  TIME ALLOCATED : A MIN OF
10 MINUTES AND A MAXIMUM
OF 15 MINUTES
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EQUITY
•  ASSIGNMENT 1 FOR GROUP 2
•  TO BE PRESENTED DURING
TUTORIAL
•  TIME ALLOCATED : A MINIMUM OF
10 MINUTES AND A MAXIMUM OF
15 MINUTES

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The Position of English law in
Malaysia
•  English law forms part of the Malaysian
laws. It can be found via English
common law and rules of equity.
•  The reception of English Law in
Malaysia started with the informal
reception in the Straits Settlement
•  Thereafter it spread to the Malay
states through the intervention of the
British Residents and advisors.
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•  As for the Borneo states since they
became British protectorates in 1888,
they too informally received English
Law.

•  However, not all of England s common


law and rules of equity form part of
Malaysian law.

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The application of Common Law
& Equity in Malaysia
• S3(1)(a) of the Civil Law Act 1956 :
Save so far as other provision has
been made or may hereafter be
made by any written law in force
in Malaysia, the Court shall in
West Malaysia or any part
thereof, apply the common law of
England and the rules of equity as
administered in England on the 54
th
•  Section 3(1)(b) : Save so far as other
provision has been made or may
hereafter be made by any written law
in force in Malaysia, the Court shall in
Sabah, apply the common law of
England and the rules of equity,
together with statutes of general
application, as administered or in
force in England on the 1st day of
December 1951. 55
•  Section 3(1)(c) : Save so far as other
provision has been made or may
hereafter be made by any written law
in force in Malaysia, the Court shall in
Sarawak, apply the common law of
England and the rules of equity,
together with statutes of general
application, as administered or in
force in England on the 12th day of 56
December 1949.
•  Provided always that the said common
law, rules of equity and statutes of
general application shall be applied so
far only as the circumstances of the
States of Malaysia and their respective
inhabitants permit and subject to such
qualifications as local circumstances
render necessary.
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•  (2) Subject to the express provisions of
this Act or any other written law in
force in Malaysia or any part thereof,
in the event of conflict or variance
between the common law and the
rules of equity with reference to the
same matter, the rules of equity shall
prevail.
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•  The dates specified for reception is
important because later changes in English
law are not automatically received.
•  Therefore if there are any changes in the
English Common Law & Equity after the
specified dates the changed laws are not
part of the laws of Malaysia. They are only
persuasive i.e highly recommended to be
followed only if there is a lacuna in
Malaysian law and they are suitable to local59
conditions.
•  Thus, the application of English law
throughout Malaysia is subject to two
limitations;
1. It is applied only in the absence of
local statutes on the particular
subjects (to fill in the lacuna in the
legal system in Malaysia)
2. Only that part of the English law
that is suited to local circumstances
will be applied.
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Application of English Law in
Commercial Matters
•  S5(1) – in all questions or issues which arise or which
have to be decided in the States of West Malaysia
other than Malacca and Penang with respect to the
law of
Partnerships, corporations, banks and banking,
principal and agents, carriers by air, land and sea,
marine insurance, average, life and fire insurance
and with respect to mercantile law generally
the law to be administered shall be the same as
would be administered in England in the like case at
the date of the coming into force of this Act, if such
question or issue had arisen or had to be decided in
England, unless in any case other provision is or
shall be made by any written law 61
•  S5(2) – in all questions or issues which arise or which
have to be decided in the States of Malacca,
Penang, Sabah and Sarawak with respect to the law
concerning any of the matters referred to in
subsection (1) the law to be administered shall be
the same as would be administered in England in the
like case at the corresponding period if such
question or issue had arisen or had to be decided in
England unless in any case other provision is or shall
be made by any written law.

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•  However, since there are so many local
statutes already passed which deal
with commercial matters, there is no
total reliance on English Commercial
Law.

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The classification of law into
PUBLIC LAW AND PRIVATE LAW
•  Public law is concerned with the distribution and
exercise of power by the state and the legal
relations between the state and the individual.

•  For example the rules governing the powers and


duties of local authorities, the regulation of
building standards, the issuing of passports etc

•  In contrast private law is concerned with the legal


relationship between individuals, such as the
liability of employers towards their employees for
injuries sustained at work, consumers rights agains
shopkeepers and manufacturers over faulty goods or
the owners rights to prevent others walking across64
their land
•  The classification of law into public
and private law and civil and criminal
law are 2 clear examples of categories
which overlap.
•  Thus for example some public law is
civil law and some is criminal.

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•  The significance of the public/private
law distinction is useful to highlight
broad differences such as the purposes,
sources,forms and procedures of the
legal rules and their remedies and
enforcement

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•  The primary purpose underlying most
private law rules is the protection of
individual interest whereas the aim of
most public law provisions is the
promotion of social objectives and the
protection of collective rather than
individual interests.

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•  The method used to achieve these
purposes also differ.
•  A characteristic feature of public law is
the creation of a public body with
special powers of investigation,
decision making and/or enforcement in
relation to a particular problem
whereas private law achieves its ends
by giving individuals the right to take 68
•  Public and private law also show
differences in their origins and form.
•  Some of the most important principles
of private law are of ancient origin and
were developed through the common
law as individuals took their private
disputes to court and demanded a
remedy.
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•  The rules of private rights in contract,
over land and inheritance, to
compensation for physical injury or
damage to property or reputation were
all first fashioned by judges in the
course of deciding cases brought
before them.

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•  In contrast most public law rules are of
comparatively recent origin first originating in
statute, not judicial decisions.
•  But there are exceptions ie the criminal law and
criminal justice system are examples where
standards of behaviour are set by the state and
enforced by a network of public officials with
powers of arrest, prosecution, trial and punishment.
•  Much of the early development of this field of public
law lies in common law.

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•  An important function of public law has
its roots in constitutional theory.
•  The actions of public bodies are only
lawful if there is a legal rule granting
the body authority to act in a given
situation.
•  A private individual needs no legal
authority merely to act.
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•  It is assumed that a person acts
lawfully unless there is a legal rule
prohibiting or curtailing that
behaviour.
•  Public law therefore has a facilitative
function for which there is no
equivalent in private law, permitting a
public body to take action that would
otherwise be unlawful. 73
•  A feature of much recent public law is
a shift towards the grant of broad
discretionary powers to public bodies.
•  This means that the same legislative
framework can be used more flexibly,
accommodating changes in public
policy as to the purposes to which the
powers should be put or the criteria for
the exercise of these powers. 74
•  This characteristic form of modern
public law contrasts quite sharply with
the relatively specific rights and duties
to be found in private law, and in turn
affects the way public and private law
can be enforced.

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•  All private law is enforced by granting
individuals the right to take action in
defence of a recognised personal
interest.
•  For example, a householder may make
a contract with a builder over the
repair of a roof and may sue the
builder if the work or materials are of
a lower standard than was specified in 76
•  Not all public law can be enforced by
way of individual action.
•  The enforcement of public law can be
viewed from 2 perspectives :
•  1. to ensure individuals or companies
comply with standards set in statute or
delegated legislation

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•  Eg public health officials making orders
in relation to or prosecuting
restaurants
•  2. to ensure public authorities
themselves carry out their duties and
do not exceed their legal powers

78
•  Here, the form of public law statutes
rarely ties a public body to supplying a
particular standard of service, as a
contract may tie a builder, but gives a
wide choice of lawful behaviour.

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•  Even where legislation lays a duty on a
public authority, there may be no
corresponding right of individual action. For
example under the Education Act 1944 (UK),
local education authorities are under a duty
to ensure that there are sufficient schools,
in numbers, character and equipment, for
providing educational opportunities for all
pupils in their area.
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•  However, nobody can sue the authority if
the schools are overcrowded or badly
equipped. The only remedy is to complain to
the Secretary of State who can make orders
if satisfied that the authority is in default of
their duties.
•  The mechanism for controlling standards of
public bodies is generally by way of political
accountability to the electorate or ministers
rather than the legal process. 81
•  Some parts of public law do create
individual rights and permit individual
enforcement.
•  In social security legislation for
example, qualified claimants have a
right to certain benefits and may
appeal against decisions of benefit
officers to a tribunal.
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•  There is a procedure, special to public law,
called judicial review of administrative
action (aka judicial review) whereby an
individual may go to the High Court alleging
unlawful behaviour on the part of a public
body.
•  However, in order to go to court, the
individual must show sufficient interest in
the issue in question and the court has the
discretion whether to hear the case or grant83
a remedy.
•  This is quite different from proceedings
in private law, where a plaintiff does
not need the court s permission for the
case to be heard but has a right to a
hearing if a recognised cause of action
is asserted and also a right to a remedy
of some kind if successful.

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•  The function of substantive law is to define, create
or confer substantive legal rights or legal status or
to impose and define the nature and extent of legal
duties.... ;
•  "The function of practice and procedure is to
provide the machinery or the manner in which legal
rights or status and legal duties may be enforced or
recognised by a court of law or other recognised or
properly constituted tribunal."

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The classification of law into
SUBSTANTIVE LAW & PROCEDURAL LAW
SUBSTANTIVE LAW constitutes the legal rules which
lay down people s rights, duties, liberties and
powers and guide the courts in making decisions.
-  The function of substantive law is to define, create
or confer substantive legal rights or legal status or
to impose and define the nature and extent of legal
duties.
-  It is the content of the law inclusive of caselaw and
statute
-  Examples of statutes : Contracts Act 1955,
Companies Act 1965, Hire-Purchase Act 1967 etc.

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•  Procedural law constitutes the rules that determine the course
of action.
•  The function of practice and procedure is to provide the
machinery or the manner in which legal rights or status and
legal duties may be enforced or recognised by a court of law or
other recognised or properly constituted tribunal.
•  It involves the procedure or method of obtaining or exercising
a particular right eg. how to enter into a contract, how to file
an action in court, how to make a civil claim, how a case is to
be presented in court, in which court shall a case be filed,
when it is to be tried, etc.
•  Examples of relevant statutes: Rules of the High Court,
Criminal Procedure Code, Subordinate Courts Rules, Evidence
Act etc.

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The classification of law into
WRITTEN LAW & UNWRITTEN LAW
•  WRITTEN LAW is the law that is passed or
enacted by Parliament or the State
Legislative Assembly.
•  It is the primary source of law in Malaysia
and is constituted in the Federal
Constitution & the Constitution of the 13
states, in the legislations enacted by
Parliament and the State Legislative
Assembly, in subsidiary or delegated
legislations and in Extra-Ordinary Laws made
by the YDPA during the period of emergency.
•  UNWRITTEN LAW is the law which is not
enacted by the legislature
e.g.
- Syariah law (revealed through Prophet
Muhammad)
- case law or judicial decisions of the Superior
Courts
-  customs of local inhabitants in Malaysia
(regarding marriage, divorce and
inheritance)
-  English common law and equity
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