CLASSIFICATIONS OF LAW

Classifications of law are important as they carry with them particular legal consequences.
When examining any complex fact situation a lawyer usually begins by a process of reasoning
which divides the persons and their relationships into significant legal classifications and
categories in order to define the legal issues and evaluate the applicable legal consequences for
the persons concerned. Law students should be familiar with some of the divisions and
classifications which have developed in order to describe law and legal systems. (extracted from
Beckman et.al, p 2)

LEGISLATIVE, EXECUTIVE & JUDICIAL POWER

The exercise of governmental power in many States is divided into three separate departments
or branches of government – the legislative (perundangan), the executive (eksekutif) and the
judicial (kehakiman). Such a division is related to the constitutional principle of SEPARATION OF
POWERS, under which persons charged with the exercise of functions properly belonging to
one of the branches should not exercise any functions and powers belonging to any of the
others, unless authorized by the Constitution.

LEGISLATIVE POWER – refers to the power of the legislature or law-making body to legislate or
make new laws to be applied thereafter to persons and activities to its control. In Malaysia, this
body is known as the
Parliament at the Federal level and the State Legislative Assembly at the State level.

EXECUTIVE POWER – refers to an exercise of the power of the Government in a concrete

situation to accomplish a public purpose in accordance with the laws made by the legislature.
The executive does not make laws but executes and administers the laws made by the
legislature. The Executive in Malaysia is headed by the Prime Minister, who is assisted by the
Cabinet members.

JUDICIAL POWER – is the power of the judiciary or courts to settle controversies or disputes
between persons and determine the respective rights and obligations of the parties in the
dispute. The judiciary is empowered to hear disputes relating to both criminal and civil matters
brought before it. The judiciary in Malaysia is headed by the Chief Judge of the Federal Court,
which is the highest court of the land.

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CIVIL LAW VS COMMON LAW

There are two major legal traditions – civil law and common law. (The term ‘civil law’ is not
used in the same context as ‘civil law vs criminal law)

COMMON LAW

This term may be used in many different ways and its precise meaning varies according to the
context in which it is used. Generally it is a system of law based upon the accumulated
decisions of judges (case law). Over hundreds of years, the principles of law found in these
cases make up the foundations of the legal systems in the common law jurisdictions

The common law has its origins in medieval England about 900 years ago. It was the law
administered by the King’s Courts in Westminister – a law that was ‘common’ in the whole
Kingdom of England. Being English in origin, it is the law the English brought to their colonies.
Therefore those countries that have been part of the British Empire at some point in history
(e.g. Singapore, the United States, Australia, the Bahamas, etc) maintain a common law system
which continue to evolve.

The principal feature of the common law systems of law is their reliance on case law.

For eg. even where there are statutes like the Contract Act 1950 for eg., the judges often
depend upon case law. This is either because statute does not contain provision dealing with
particular issues or because the provisions need to be interpreted/applied. (difference between
invitation to treat as opposed to an offer?)

The term is also used in opposition to statute law, the law contained in legislation. In this
context, common law means cases as opposed to legislation. However, when referring to
common law jurisdiction or a legal system which is based on common law, the term then
includes both cases as well as legislation

CIVIL LAW

Comparatively the civil law is a much older legal tradition. Its origins in Roman law can be
traced back 2400 years. “Civl” originates from the Latin word “civis” which means “Roman
citizen” – it is the law of the Romans. Roman law was reintroduced in almost all of Continental
Europe through the universities, which started teaching it at the end of the 11 th century. It is
therefore a “very academic law.” In the Middle Ages and up until about 200 years ago it was the
“ius commune” (the common law) of Continental Europe. Today Continental European
countries are almost all civil law countries and through colonization the civil law spread
throughout the world (eg. Indonesia, Indocina, almost all of South America). Some countries

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also adopted the civil law without it being imposed through colonization (e.g. Thailand, Japan
and China).

Originally the civil law was developed through court decisions with the assistance of scholars.
However over the last 200 years, most civil law countries have adopted comprehensive written
codes drafted by scholars and enacted by the legislature. These codes, the most prominent of
which is the Civil Code which codifies all private law, are highly comprehensive and can be quite
general and abstract compared to common law statutes. The judge is to apply a code to a given
set of facts, in principle without having to rely on previous, similarly decided cases, as in the
common law system. Technically speaking therefore, there is neither binding precedent nor
‘judge-made’ law in civil systems. Judges do however follow similar cases, but ‘case law’ is
usually not binding. In fact judges will often look at the writing of legal scholars more than cases
for inspiration – legal scholarship has a high stature in civil law countries.

The court process in civil law jurisdictions is usually described as “inquisitive” rather than the
typically “adversarial” approach of the common law. The judges are expected to serve in an
“inquisitive” role – they are in charge of and direct the inquiry into the facts. The lawyers assist
them but judges conduct the inquiry and in fact they are the ones asking the questions of the
witnesses. A lot of the inquiry is done in writing – the judges build a ‘dossier’ containing all the
relevant documents, including reports on the questioning of witnesses, and then decide the
case.

COMMON LAW vs EQUITY

Equity existed as a consequence to the rigidity and extreme formality of the common law in the
early development period. The King’s bench came to be seen as not being concerned with
justice/fairness but merely with following procedures and previous cases. Also, since judges
were the King’s judges, they were not regarded as sufficiently independent. The practice
evolved with claimants who were dissatisfied with decisions that were passed would approach
the Lord Chancellor (one of the principal advisers to the Crown & in early times, it was
commonly held by a clergyman). When LC decided disputes, he would consider what was
right/fair/just rather than whether it was in accordance with formal procedures.

The LC was often spoken of as ‘the keeper of the King’s conscience.’ He made decisions which
were equitable, i.e., fair and just according to conscience. The system evolved into a separate
system of court – the courts of equity (later formalised as the Courts of Chancery)

Courts of equity developed their own principles/rules:

• He who comes to equity must come with clean hands

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 • For every wrong there should be a remedy

One of the defining characteristics of equity was that it operated primarily on principles of
discretion. It didn’t matter what the previous Court/Chancellor had decided. This state of
matter resulted in uncertainty to the extent that it was said: “Equity depends upon the length
of the Chancellor’s foot!”

Chancery Courts often operated as rivals to the King’s Bench as each awarded different kinds of
remedies. A litigant would go from one court to the other!

The separate forms of court systems (common law & equity) were finally reformed through the
Judicature Acts 1873-1875. Today, courts in England as well as Malaysia are both courts of
equity as well as common law. It is a principle since 19 th century, that if there is a dispute
between the common law and equity, it is equity which is to prevail. The principles of equity
operate in many areas of the law, for eg., Contract & Tort. But they do not operate in Land Law
or in Criminal Law. Biggest role that they play is in the operation of Trusts (E&T=compulsory
course)

EQUITABLE & COMMON LAW REMEDIES

Common law courts had focused on compensation as a remedy and was financial in nature –
mostly known as the award of damages

Courts of equity developed other forms of remedies and the most important of these –
injunctions and specific performance. After the reforms of the 19th century when the courts
were merged, the ‘new’ courts could award damages as well as one of the equitable remedies.
However, while an injured plaintiff has a right to damages (provided he proves his case), the
equitable remedies are discretionary – judge only grants if it was just/fair to do so

COMMON LAW & EQUITY IN MALAYSIA

The Civil Law Act 1956, s 3(1) provides that the Malaysia courts shall:
(a) In West M’sia or any part thereof, apply the common law in England & the rules of equity as
administered in England on the 7 th day of April 1956;
(b) In Sabah, apply the common law in England & the rules of equity, together with statutes of
general application, as administered or in force in England on the 1 st day of December 1951
(c) 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 12 th day of December 1949….
(d) Provided always that the said common law, rules of equity & statutes of general application
shall be applied so far only as the circumstances of the States of Malaysia & their respective
inhabitants permit & subject to such qualifications as local circumstances render necessary.

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CRIMINAL LAW AND CIVIL LAW

CRIMINAL LAW

CRIMINAL LAW refers to the rules of the State defining acts which are considered to be
wrongdoings against the State because they are deemed harmful to the community as a whole.
These acts are referred to as offences and are punishable by, for example, fine or
imprisonment. The criminal law is enforced by the State. A person accused of committing an
offence may be placed under arrest by the police. Criminal proceedings are then initiated and
conducted by a representative of the State called the Prosecutor against the accused person. If
the accused person is found guilty of committing an offence, he will be liable to be punished.
Accused may be punished by one or more of a variety of punishments ranging from fine to life
imprisonment or even death, or else released on probation or discharged without punishment
or dealt with in various other ways. On the other hand, if the prosecution fails to prove the guilt
of the accused beyond reasonable doubt, it may result in his acquittal.

CIVIL LAW

CIVIL LAW refers to that part of the law which deals with non-criminal matters. Civil
proceedings are primarily concerned with the settlement of disputes between persons within
the society. A civil proceeding is usually instituted by one person in order to enforce his legal
rights against another. The proceedings before the court are governed by a different set of rules
than those governing criminal proceedings. The result of the proceedings is also different from
that in a criminal case. For example, instead of imprisonment or fine, the most common relief
granted is that a person is ordered by the court to pay damages. The terminologies used for the
parties in a civil proceeding differ to that of the criminal proceeding. The person who initiates
an action against the defendant is called the plaintiff. If the suit is successful it results in
judgement for the plaintiff and the defendant may be ordered to pay the plaintiff money
/transfer property to him/ to do or not to do something (injunction) or to perform a contract
(specific performance). In applications for a writ of habeas corpus/judicial review by means of
an order of mandamus, prohibition or certiorari, the parties are called applicant and
respondent respectively. As opposed to the higher burden of proof in criminal proceedings, in
civil matters cases are decided on the balance of probabilities

In conclusion, the distinction does not reside in the NATURE of the wrongful act itself as the
same act may be both a crime and a civil wrong. The following example illustrates:

A railway signalman fails to pull the lever at the right moment resulting in a fatal
accident.

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If his carelessness is gross enough it may amount to the offence of causing death due to rash
and negligent act. On the other hand, it may result in different forms of civil actions. For
instance, an action under tort of negligence towards the victims of the accident / their
dependents or, a breach of contract with the railway executive to take due care in his work. The
right of action in tort and contract are vested in different persons. The example shows that the
distinction between a crime and a civil wrong cannot be dependent upon what is done but in
the legal consequences that may follow it. If the wrongful act (or omission to act) is capable of
being followed by what are called criminal proceedings, that means that it is regarded as a
crime/offence. If it is capable of being followed by civil proceedings, that means that it is
regarded as a civil wrong.

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SUBSTANTIVE LAW AND PROCEDURAL LAW

SUBSTANTIVE LAW

Substantive law refers to the substance and content of the law itself. It deals with the legal
rules which prescribe certain conduct and with the legal rules which create and define legal
rights and obligations of persons within the society towards one another. For example, the rule
of law which defines the offence of murder and prescribes a punishment for persons found
guilty of murder is a rule of substantive law. Similarly the rules of the law of contract setting out
the rights and duties of the parties to a contract for the sale of goods are rules of substantive
law.

PROCEDURAL LAW

Procedural Law or adjectival/adjudicative law refers to the body of rules which govern the
manner in which a legal proceeding must be carried on in the courts. It deals with the
mechanics of the legal process rather than with the substance and content of the law itself. For
example, the rules of law which set out the procedures which must be adhered to in arresting,
interrogating and trying an accused person for the offence of murder would be rules of
procedural law. Similarly, the rules of procedure and evidence which must be followed in a civil
case concerning a breach of a contract for the sale of goods are rules of procedural law.

PUBLIC LAW AND PRIVATE LAW

PUBLIC LAW

Public law refers to those fields of law which are primarily concerned with the state or
government. Fields of law which are generally classified as fields of public law are constitutional
law, criminal law and administrative law. Constitutional law governs the structure, organization,
functions and powers of the principal organs and institutions of government of the State, as
well as the relationship between the individual and the State. Criminal law is considered as a
field of public law because it characterizes certain acts as offences against the State which are
prosecuted and punished by the State. Administrative law consists of the body of rules which
govern the exercise of the executive and administrative functions of government in their
dealings with private individuals.

PRIVATE LAW

Private law refers to fields of law which are primarily concerned with the rights and obligations
of individuals in relation to each other. Fields of law which are generally classified as fields of
private law are the law of contract, the law of torts, the law of property and family law. The law
of tort sets out the circumstances under which a person is liable to pay another person

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monetary damages because he has caused the other person to suffer an injury or loss. The law
of contract deals with the rules which determine when promises or agreements between
persons are legally enforceable. The law of property deals with the nature and extent of the
rights which people enjoy over land and other property. Family law defines the rights, duties
and status of family relationships such as husband and wife and parent and child.

*******

***Extracted, adapted and re-organised materials obtained primarily from Beckman, McLeod
and Glanville Williams.

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