MALAYSIAN

LEGAL SYSTEM

CHAPTER 1:
INTRODUCTION
TO LAW​
LEARNING OUTCOME

At the end of this lesson, the students should

be able to:
1. Explain the concept & definition of law
2. Explain the different classification of law
& their functions
 3

DEFINITION &
CLASSIFICATION OF LAW

• Types of Legal Systems

• Definition of Law
• Classification of Law
• Function of Law

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INTRODUCTION
• Malaysian Legal System is the system of law in
Malaysia which regulates the country.
• It also refers to a procedure or process for
interpreting and enforcing the law, elaborates the
rights and responsibilities of people.
• In general, the legal systems of the world are
classified into 4 main types:
1. Common Law Legal System
2. Civil law Legal System
3. Socialist Legal System
4. Religious Legal Systems
 COMMON LAW LEGAL 5

SYSTEM
“Common law” describe those legal systems whose laws are derived from the
English system.
Applies in England and Wales, the USA, and former British colonies
including India, Singapore, Brunei and Malaysia.
Uncodified law –no comprehensive compilation of legal rules and statutes.
Based on doctrine of stare decisis - the judicial decision that have been made
in similar cases. Such precedents are maintained over time through the records
of the courts, collections of case law (law reports).
 Courts and judges are creative in the interpretation of the legislation made
by the legislature.
Functions as an adversarial system, a contest between two opposing parties
before a judge who moderates, then determines the appropriate sentence based
on the evidence produced before the court.
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 CIVIL LAW LEGAL 6

SYSTEM
“Civil Law” describes those systems which developed out of the Romano-
Germanic legal tradition of continental Europe.
Mainly practiced in most European Countries, South America and its
former colonies of European countries (Dutch & French) such as Indonesia,
Cambodia & Laos.
codified - a set out of comprehensive system of rules which are applied and
interpreted by judges. The law is continuously updated legal codes that specify
all matters capable of being brought before a court, the applicable procedure,
and the appropriate punishment for each offense.
In a civil law system, the judge’s role is to establish the facts of the case
and to apply the provisions of the applicable code. Though the judge often
brings the formal charges, investigates the matter, and decides on the case, he
or she works within a framework established by a comprehensive, codified set
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 SOCIALIST LEGAL 7

SYSTEM

It is the legal system in communist states, such as China

(People's Republic of China), Cuba (Republic of Cuba), North
Korea (DPRK, Democratic People's Republic of Korea) and
Vietnam (Socialist Republic of Vietnam)
The society is divided between the upper (ruling class) and
the lower class. The ruling class used law as a tool of reform
and social change.
Command of their state leaders are normative & binding
against everyone.

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 RELIGIOUS LEGAL 8

SYSTEM
Example: Islamic Legal System (also known as Shariah Law)

Is practiced by Saudi Arabia (criminal & civil cases), Kuwait, Egypt
and Pakistan.
Islamic legal system is a religious law legal system which is based on
Qur’an and As-Sunnah (the tales of the Prophet Muhammad).
The Qur’an is believed to be the actual word of Allah. It is not a code of
law. It covers topics as such as moral, religious themes, bygone events,
commercial transaction, family matters and crime and punishment.
As-Sunnah are stories of the words the Prophet said, actions the
Prophet took, and actions the Prophet tacitly approved by abstaining from
condemnation when he could have acted.
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DEFINITION OF LAW
 General definition
 Definition under Fed. Const
 Natural law school
 Positive law school
 Sociological school
 Realism
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WHAT IS LAW?

 It is a set of rules that regulates interactions that

people have with each other, and which sets
standards of conduct between
(1) individuals &
(2) individuals and the government.
 Layman: law is understood as being a general rule of
conduct.
 The Oxford Dictionary: ‘the body of rules (enacted or
customary) recognized by community as binding.’

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WHAT IS LAW?

 Article 160 of the Federal Constitution;

“law” includes 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 force
Federation of any part thereof.

Law is a set of rules, regulations necessary to govern

people in a community, state or nation

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 HOW DO THE ‘LAW’ 12

DEVELOPS IN SOCIETY?
 Develops with the society's need and the
influence of history.

 Influenced by religion, logic, sociology,

philosophy, economics, trade, politics,
industry and inventions.

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THE MEANING OF LAW FROM THE

PERSPECTIVE OF JURISTS

JURISTS

NATURAL LAW POSITIVE JURIST SOCIOLOGICAL

REALIST
JURIST (POSITIVE LAW SCHOOL JURIST
(NATURAL LAW SCHOOL) (SOCIOLOGICAL
SCHOOL) SCHOOL)
 14
Natural Law Jurists
(Natural Law School)
• This theory of natural law emanated from religious
beliefs - that there are laws and principles that are
superior to man-made laws.
• Purpose of law is to serve the common good.
• Based on the idea that human beings are capable of
rational, purposive action, speech and thought. Hence,
humans are capable of determining what is right and
what is wrong.
• Natural Law also means law of the nature - law is
necessary to regulate man’s behaviour. It is to be
discovered by man from his surroundings. 01/09/2023
 15

• Jurist of Natural law believes that man is part of nature and

has a role to play.
• His nature inclines him towards certain ends to procreate, to
protect his family and to ensure his survival. How? Abide by
certain principles of human conduct.
• Hence, existence of law is set by human nature based on
what is correct (morality & ethics).
• Bad law is not law even if it was made by the ruler.
• A ruler that violates natural law has no right to be obeyed.
Law is not simply what is enacted in statutes. If the
legislation is not moral, then it is not law, and has no
authority.
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POSITIVE JURIST
(POSITIVE LAW SCHOOL)

• Emphasizes the separation of law and morality

• John Austin- best known for his work developing
the theory of legal positivism.
• The three basic points of Austin's theory of law are
that:
 the law is command issued by the sovereign
body in the society;
 such commands are backed by threats of
sanctions; and
 To be applied in the event disobedience.
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 17

• Hart:-
“We obey the law because of complex social
psychological processes. We obey law because
we accept the legitimacy or authority of the
source of law. We obey the law because we
consider it right and proper to do so.”

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 18

SOCIOLOGICAL SCHOOL JURIST

(SOCIOLOGICAL SCHOOL)
• Considers law as a tool or facilitating mechanism,
making transactions possible between man, and solving
awkward problems as they arise;
• Law is seen as a mechanism of social control, regulating
activities and interest in the name of the community, a
ruling class or the state.
• Karl Max – views law as a tool and an important means
to shape the society.
• A force for restructuring society and advancing the
nation toward communism. No distinction between
public and private law existed.
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 REALISTS 19

• American Realists view “society” as a system,

comprising of actions and institutions, each
functioning to maintain social institutions and social
forces.
• Society is not a loose collection of independent entities
but exhibits certain regular patterns of behavior,
relationships and beliefs.
• Law = rule of conduct laid down by judicial organ.
Decision of judge vs. statutes.
• Law – not perfect. Need alteration to remain current.

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CLASSIFICATION OF
LAW
National or International Law
 Common law and equity
 Substantive and Procedural Law
 Written and unwritten law
 National Law 22

(law that prevails in the State)

• Public Law
The law which governs the relationship between individuals and the State.

i) Constitutional law
o rights of individuals in the State
o deals with questions such as supremacy of Parliament and rights of
citizen.

ii) Criminal law

o offences against the State
o obligations imposed on individuals
o Statutes- Penal Code, Child Act 2001, Criminal Procedure Code,
Firearms Act, Criminal Dangerous Drugs Act.

iii) Administrative Law

o duties and exercise powers by the administrative bodies.
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 National Law 23

(law that prevails in the State)

• Private Law
The law which governs between individuals inter se.

i) Contract
o rights and obligations that arise by agreement.
o Consensus ad idem.

ii) Tort
o offences against individuals
o Based on an obligation imposed by the law
o negligence, defamation, assault, trespass

iii) Trust
o An equitable obligation binding a person (trustee) to deal with
property over which he has control (trust property) for the benefit of
persons (beneficiaries). 01/09/2023
 International Law 24

(law that prevails between the State)

International Law – Body of law and rules of conduct which States are bound to
observe. Can be created in two main ways:
i) By treaty;
ii) By custom

Public International Law

o Law that prevails between States.
o It is also concerned with international organizations, e.g. United Nations and its
associated bodies. International law consists of the general principles of law,
customs, conventions or treaties recognized by civilized nations.
o The International Court of Justice (ICJ) at Hague has been set up to hear cases of
disputes between states or nations, for example; (Pulau Batu Putih- Malaysia v
Singapore)

Private International Law

o Consists of the rules that guide a judge when the laws of more than one country
affect a case (conflict of laws) 01/09/2023
 25

Substantive Law & Procedural Law

Substantive law
o substance and content of the law itself
o relates to the legal rights and obligation of persons within society
towards one another.
o They are rules to abide by the society, acts which are subject to
criminal or civil prosecution.

Procedural law
o established the framework for the proper enforcement of the
substantive law.
o E.g. how to determine whether a particular action constitutes a
criminal act, how to make a contract, how to file a claim via civil case.
o Involves procedure or method of obtaining or exercising a particular
right 01/09/2023
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Common Law & Equity

Common law and equity are the basis of the law developed in Malaysia. The
Civil Law Act 1956 provides for the application of the English Common Law
and the Rules of Equity in Malaysia in so far as they are suitable to local
circumstances.

Common law
o A consistent law which was developed based on a rule known as stare
decisis was developed, where a judge was bound to follow the decision
of the earlier judge by applying the same interpretation of law and
principles subject to those cases having similar facts. This is also known
as ‘precedent’.

Equity
o A system that developed to be fair and create remedies such as decree of
specific performance, injunction, etc. It is a relief against unfair
judgement which also arise due to the rigidity of the doctrine of stare
decisis 01/09/2023
 27

Federal Law & State Law

Article 75 of the Federal Constitution provides that the Federal law shall prevail
over the State law if there is any inconsistency between them, and the State law
shall be void to the extent of the inconsistency.

Federal laws
o laws promulgated by the Federal Parliament which consist of the House
of Representatives (Dewan Rakyat) and Senate (Dewan Negara)
o Laws passed at the federal level are known as Acts of Parliament. Article
73(a) of the Federal Constitution confers to the Federal Parliament the
power to make laws for the whole of any part of the Federation and laws
having effect outside as well as within the Federation.
o Articles 74(1) of the Federal Constitution provides that Federal Parliament
may enact laws with respect to any of the matters enumerated in the
Federal List or the Concurrent List (i.e. the First or Third List set out in
the Ninth Schedule)
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Federal Law & State Law

State laws
o laws promulgated by the Federal Parliament which consist of the House
of Representatives (Dewan Rakyat) and Senate (Dewan Negara)
o Laws passed at the federal level are known as Acts of Parliament. Article
73(a) of the Federal Constitution confers to the Federal Parliament the
power to make laws for the whole of any part of the Federation and laws
having effect outside as well as within the Federation.
o Articles 74(1) of the Federal Constitution provides that Federal Parliament
may enact laws with respect to any of the matters enumerated in the
Federal List or the Concurrent List (i.e. the First or Third List set out in
the Ninth Schedule)

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FUNCTIONS OF
LAW
 30

FUNCTIONS OF LAW
• To control and determine the life of the society and to eliminate
unfairness.
o Eg: Criminal law determines the types of conduct that is not
allowed by the society such as theft, hurt, harm, etc.
o Any person who does any of the above acts will be punished and
sentenced (fine/imprisonment/death)
o mechanism for changing and improving the human’s behaviour

• To establish the rights and liabilities of a person.

o Specify powers in the relationship between private citizens &
groups
o e.g. parent and child, a husband has to maintain his wife and
children, property owners and the rights of individuals to set up
organizations in society.
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FUNCTIONS OF LAW

• To establish, control and promote order or a system of life of a particular

society.
o Maintains public order by regulatinghuman's behaviour through
suppressionof deviant behaviou
o Eg: In Malaysia society, a Muslim man is allowed to polygamies
but is prohibited in UK society.

• As a means to settle disputes.

o Eg: Breach of contract (damages, specific performance, etc)

• To achieve justice
o Eg: In Federal Constitution of Malaysia. every citizen has freedom
of movement unless arrested etc. This law is applicable to all
regardless of race, religion or ethnic group.
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THANK YOU