 A general rule of external human action

enacted and enforced by a sovereign

legitimate authority.
 “the aspect which employs the force of

organized society to regulate individual and

group conduct and to prevent redress or
punish deviations from prescribed social
norms.”
1. Normative element—standard setting ( to
improve behavior)
2. Regularity—meant for universal application
3. Administrative element—courts will
objectively apply and administer these sets
of conduct
4. Element of legitimacy—enforcement by a
recognized legal authority.
1. Custom- raw material for many laws
2. Religion-many governments use religions as
a source of law
3. Adjudication-judge-made law from by
creating or interpreting new law
4. Jurists-writing of a great jurists
5. Legislation-legislature enacts law.
1. National law- passed by the government.
 Constitutional and general laws
◦ General laws—1. public law(deals with human
behavior for protection and preservation of
interest) . Public laws—general and
administrative law
 General public laws — state relation to its citizen
(civil and criminal)
◦ 2. private laws (deals with duties and obligation
of individual and others) e.g law of contract, law
of torts.
2. International law
 Laws passed by a legitimate sovereign
authority and are applied within the
jurisdiction of that authority.
 Both constitutional and general.
 Constitutional laws are written in the

constitution.
 General laws are passed by the legislature.
 Public laws are those legal principles which
govern the relations of citizens with the state.
They are of two types: civil and criminal.
 Private laws are those legal principles

concerning the legal rights, duties and

obligations of individuals. Laws governing the
relations of citizens among themselves.
 Some laws passed by the legislature are not
detailed.
 Administrative officials interpret these laws,

and suit them for specific situations.

 “A system of law containing principles,
customs, standards and rules by which
relations among states an d other
international persons are governed.”
 Standard of conduct for nation states
 Basis of legitimacy: consent.
 Principal sources: Customs, Treaties, General
principles of law, and Judicial decisions,
Diplomats and statesmen, Roman law and
works of eminent writers
 Originated in Britain.
 Three features:

1. Case law: individual legal decisions, not

comprehensive code of statutes.
2. Made by judicial decisions; has flexibility.
3. Stare decisis: precedents.
 Comprehensive legal system by Roman.
 Importance is on letter, not spirit of the law.
 Facts of disputes are analyzed on principle,

not prior interpretations [no stare decisis].

Based on reason, logic and legal expertise
 Disputes are analyzed based on principles

not through reference to prior interpretation.

 Contribution of the French legal system.
 Laws are derived from writings of Marx,
Lenin, Mao.
 Biggest crime: challenging the regime.
 Lawyers also tied to Communist Party.
 Law enforcement and legal scholarship are

controlled by the party.

 Shari`ah. Laws based on the Qur’an, Sunnah,
Ijma` and Qiyas. Also Istihsan [juristic
preference], Istislah [public good], Istishab
[continuance], `Urf [customs].
 Although considered central to Islamic

governance, no one state is implementing it

in full.
 Many states in the Third World blend their
customs, procedures, and codes with the
European or Islamic legal systems.
 Court system varies. But all court systems
are organized on ascending scale.
 Structures of court differ. Germany
[civil/criminal; administrative;
constitutional], U.S. [state; federal;
Supreme], Britain, France [civil; criminal,
appeal] Malaysia ; Federal court; court of
appeal; high court; session court,
magistrate court; penghulu court /native
court)
 Appointment of judges: Selection from
among barristers; Career structure;
Elections; Appointed by government.
1. Establishing facts-determine the fact and to
deduce the truth by considering various
evidences.
2. Interpreting laws-the duty of the judge to
interpret the law
3. Creating laws-court has to decide the nature,
scope and meaning due to changing
conditions.
4. Upholding the Constitution
5. Preventing infraction of law-restraining order
6. Judicial review: court has power to declare
any act of the legislature and executive are
null and void
 The fundamental condition of Rule of Law.
It means the freedom and independence
of judges in discharging their duties.
 Steps to maintain independence of
judiciary:
1. Appointment of judges.
 Based on merit. The most common is
appointment by the executive. This
method is likely to be independent of
popular influence or political
considerations.
2. Judicial tenure
 Judges must have security of tenure. Tenure
must not depend on the pleasure of a
person or agency.
3. Promotion
 Must be based on merit and seniority.
4. Salaries
 Must be adequate. To prevent
corruption or bribery. Benefits should
not be altered to their disadvantage
during the tenure of office.
5. Non-interference of the Executive
 Will of judges should not be bound by
the executive; rather the executive
should be accountable to judiciary.
 Qada, independent of the executive, is to
adjudicate in strict accordance with the
Shari`ah.
 Functions include settlement of disputes,

prevention of wrongful acts, issuing of

declaratory judgments, [and judicial review].