Topic 1

Introduction to the Concept

of Law and Society

ESSF0074
 What is Law?
• The word law usually refers to a concept or process.
It can also be any set of uniformed principles. A rule
formally acknowledged and enforced by a society.

• Different people may have a different view of what

“law” actually is. Some people may define it in terms
of history, society, religion, or politics.
 What is Law?
• To the layman, law is understood as being a
general rule of conduct. In the Oxford Dictionary,
law is defined as ‘the body of enacted or customary
rules recognized by a community as binding’.

• However, the word ‘law’ has been given many

different definitions by lawyers.
 What is Law?
• Sir John Salmond defines law as ‘the body of
principles recognized and applied by the state in the
administration of justice…. In other words, law
consists of the rules recognized and acted on by
courts of justice.’

• John Austin describes law as a command set by a

superior being to an inferior being and enforced by
sanctions (punishments). The sanctions are wide and
include imprisonment, fines, damages, injunctions and
decrees of specific performance.
 What is Law?
• The term ‘law’ is defined both by Article 160(2) of
the Federal Constitution 1957 and Item 43C of
section 2(1) of the Interpretation and General
Clauses Ordinance 1948 to include:

 The written law;

 Common law in so far as it is in operation in the
Federation or any part thereof; and
 Any custom or usage having the force of law in
the Federation or in any part thereof.
 What is Law?
• However, many scholars agree to define law as "a
set of rules that governs the patterns of behavior in
a given society".

• Thus, although there are many definitions of “law”,

we know that whether we live in the jungle as part of
a tribe, or if we live in the city, a legal system is
needed to resolve any disputes.

• As such, the law can be seen as an activity that

makes us conform to governance of rules.
 Rule of Law
• The rule of law was formulated in its modern form by Prof.
Dicey. Dicey suggested that the rule of law involves the
following three propositions:

 No person must be punished except for a breach of

the law. This means that a person should be able to
know whether what they may want to do is lawful or
unlawful. It is also recognized the law as the highest
authority in society;
 All persons are equal before the law irrespective of
status or position; and
 The rights or freedoms of citizens are enforceable in
the courts.
 History of Law
• Many countries around the world now use the law
that originated from the Greeks and Roman
civilizations. After the fall of the Roman empire in
the 5th century, many European countries had to
follow this law with some adjustments.

• In the 18th century, after the French Revolution, this

law was written in a book called the Code of
Justinian to be used by the French people. Later on,
all countries except England adopted this system.
 History of Law
• England has its own legal system called the
Common Law.

• Countries that have been colonized by the British

such as Malaysia, have inherited this law.
 Islamic Law
• The implementation of Islamic law started with the
beginning of the mission of Prophet Muhammad in
in 610 A.D.

• During his time, Prophet Muhammad had appointed

several judges for justice administration in different
parts of the Muslim world.

• The acceptance of Islamic law was caused by the

rapid expansion of the Islamic religion itself.
 Islamic Law
• While Roman law was developed from real cases or
the Common Law, which was developed from writs
(official written orders telling people to do or not to
do a particular act.), Islamic law on the other hand is
based on the Quran and Sunnah (the practices of
Prophet Muhammad).

• Therefore, Islamic Law is free from man made

errors and misjudgment.
 In a nutshell….
• Currently, there are two main legal systems in the
world:
– the Statutory law or laws that are written in a
book called 'Code of Justinian‘
– the Common law, which is used by England, and
the commonwealth countries

• For Islamic countries, there is also Islamic law,

which becomes their guide in formulating and
implementing laws.
 In a nutshell….

LAW

Statutory Law Common Law

Islamic Law
 The Law and Society
• According to Professor Anwarul Yaqin (1998), law,
in the context of a society, is denoted as "a set of
defined principles that govern and regulate human
behaviors".

• People need law to control their lives and to live in a

community.

• It protects the interests of the state and its ruler.

 The Law and Society
• Law is a dynamic process that needs to be updated
according to the needs of our progressing society.

• For example, cyber laws have been passed in

Malaysia to handle computer crimes.
 The Law and Society
• We can only understand the law if we analyze
conflicts in the social, political and economic aspects
of society.

• For example, if my land has been taken by the

government to build a school but no reimbursement
is given to me, this case is viewed as closely related
to a political affair.
 The Law and Society
• On the other hand, society should be equipped with
legal education so that we know our rights and
responsibilities.

• Legal practitioners should be trained to be sensitive

and concerned about the problems faced by society.
 Law and Morality
• What is it that stops people from stealing, cheating
and killing?

• In most instances, the answer is morality.

• Even if there isn’t a law that stops us from doing

something, we don’t do it anyway because it is
against our moral principles. Eg: There is no law
stating that we cannot jump queue, but why don’t we
do it? Moral principles!
 Law and Morality
• A code of morality is referred to as "a set of beliefs,
values, principles, and standards of behavior and
such codes are found in all social groups".

• Morality occurs when there are acceptable social

values of certain behaviors, which will then be
acknowledged as moral.

• This practical guideline of how we behave, will

outline the legitimacy of conducts and practices of
society.
 Law and Morality
• The world is a melting pot of people. What is good
for me, may not be good for you. What is moral for
one person may not be so to another because of
their differences.

• Therefore, members of society have to try to reach a

common understanding in figuring out what is right
and what is wrong.
 Law and Morality
• To decide accepted standards in morality, people
have to put their personal interests aside.

• The standards, instead, are normally taken from the

religious, moral theology, and ethics point of view
and are also approved by a reasonable man.
 Law and Morality
• The law basically approves and reinforces what is
generally accepted as good moral behavior in the
society in which it operates.

• It will disapprove and penalize what is regarded as

bad moral behavior in the given society such as
dishonesty and adultery.
 Law and Justice
• Law, as we have learnt, is a set of rules or principles
that govern and regulate human behavior.

• Justice, on the other hand, guarantees an equal and

fair treatment among the people in a society.

• Thus, we can see a relationship between law and

justice. Law is a tool to achieve justice.
 Law and Justice
• The law will only be accepted and obeyed if it upholds justice.

• Law aims to maintain justice in society. Justice is an abstract

idea of right and wrong, fairness and equality. Therefore, the
aim of a given law is to encourage the doing of what is right or
just in a particular set of circumstances.
 Law and Justice
• Natural justice is a standard rule of good legal
procedure and administration, which has been
characterized as providing fair and just treatment
before the law.

• For example, the right to a fair trial in court.

 Law and Justice
• We can see that crimes are punished without
consideration of one's status or position in the
society.

• Equality is "the quality of persons or things being all

of the same standard or level and all treated alike”.

• This clearly describes how people in different groups

have their own rights to a similar social position and
receives the same treatment regardless of their
apparent differences.
Theoretical Perspectives
of Law

Natural law view

Positivist view
Realist view
Sociological view
 Natural Law View
• Natural law is a type of law that roots from the
nature and is divine.

• St. Thomas Aquinas defined natural law as a law

that comes from God, where divine providence and
the supreme ruling governs the human community.
 Natural Law View
• What differentiates human with other objects is that
human has conscience and intellect to direct and
monitor their lives.

• The principle of natural law binds community with the

nature to achieve mutual well-beings. An example of
the universally most acceptable moral standard is to
treat our parents well, while adultery is an example of
the universally unacceptable evil conducts. It inspires
human beings toward pursuing good deeds and
avoids committing crimes or transgressions
 Positivist View
• Positivist law stresses more on human observations
rather than reasoning. Positive law can be defined
as an examination of the nature of law in terms of its
operations in real legal cases.

• There are three main elements embodied in this law,

which are the:

 commands of a superior authority,

 duty to obey the commands, and
 sanctions or penalties behind the commands.
 Realist View
• Realism means associating with the real world.
Therefore, legal realism can be put as studying law
the way it is carried out and applied in the real world.

• Judges' personal views and evaluations are very

important because they are very prominent and
powerful in influencing the legal decision-making
process. In other words, legal realism means
studying law the way it is carried out and applied in
the real world.
 Sociological View
• The Oxford Companion to Law defines the sociological
view of law (sociological jurisprudence) as a branch of
sociology, which studies the legal constitution, rules,
practices, procedures, and its effects on the society.
This view is more concerned about the effects of the
law on the society.

• Scholars in the sociological school of thought urge that

the effectiveness of law on the society be given priority
than any other interest. This means that if the existing
law seems to harm the public, it should be revised.
Comparing the Perspectives
Similarities
• All of them agree on the importance of law in
regulating the society.
• All of the views, except for the naturalist, agree that
the study of law should be approached according to
its function in real legal operations.
• In other words, the law should be realistic and able
to benefit the community rather than simply existing
as theoretical or hypothetical concepts
• All of these views share a common feature in which
they agree that human beings require law to protect
and maintain peace and stability.
Naturalist vs Sociological Views
Naturalist Sociological
• The naturalist view upholds • The sociological view
law that originates from the accepts law from any
superior or divine power source as long as it
functions to protect the
well being of the society.

• The sociologists' view that

• The naturalists believe that
requires law to be very
the law is meant to be
universal and non- flexible and revisable in
order to cater to changes
changing due to the reason
that natural law is divine in the environment.
and superior
 Positivist vs Sociological Views
Positivist
• Views that the law should
originate from sovereign
rulers.
• The positivists may not
recognize law that comes
from judicial precedents or
judges' decisions in previous
court cases because they
only take law that comes
from sovereign rulers or
monarchs.
Sociological
• The sociological view
suggests that it can also
come from other
constitutional bodies such
as the parliament, doctrines,
or written statutes.
• The sociologist may accept
judicial precedence as a
source of law because it
accepts and practices law
from any source so long as
the law safeguards the
welfare of the people.
 Realist vs Sociological Views
Realist Sociological
• The realists seem to • the sociologist stresses
emphasize on the more on the mutual efficacy
significance of the judges' that clarifies the practical
roles and discretion in functions of law in
executing laws and protecting public welfare.
introducing new laws (How efficient the law is in
protecting the welfare of the
citizens)
 Which perspective is most
relevant/appropriate?
• It is said that the sociological approach is most
appropriate when talking about the law and society.

• This is due to the fact that the sociological view

emphasizes on the functions and relevance of the
law in the society.
The End