WHAT IS LAW?

INTRODUCTION TO LAW
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LAW012
NOR AKHMAL HASMIN

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 TOPIC OUTLINE

a) Definition of law
- general definition
- definition given by jurists
b) Function of law
c) Different perspectives of law

d) Where does the law come from

e) Classification of law

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 WHAT IS LAW?????
- What is law as a definition

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General definition:
• No specific definition on what is LAW – many interpretations of
law according to belief, value, custom etc.
• Law is a system of rules where it guides and directs our
activities in much of day to day life (framework of life) – our life
is built upon the foundation of legal rules.
• Law is a set of rules that guide our conduct in society and
enforceable by public agency – everyone has to follow or
otherwise they have to face sanctions or penalty as
consequences of its breach.
• GENERAL RULE OF CONDUCT.
• Oxford English Dictionary:
“ The body of enacted or customary rules recognised by
community as binding.”

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Definition of law by jurists

a) Jean Jacques Rousseau

• Natural law jurist
• Argue that law reflects essentially moral and unchangeable
law of nature.
• Rules which permit or prohibit certain action and must be
for the benefit of the public – prescribe the proper
behaviour of human being.
• First principle of nature ‘good is to be done and promoted,
and evil is to e avoided.’
• Any man-made law which is in conflict with natural law is
not a true law. In order for a law to be part of a legal system
it should be in conformity with current moral principals.
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b) John Austin
• Positive law
• Define law as – law is the command of the sovereign
authority and the command is backed by sanction.
• Rules created by ruler who can give penalties if the rules
are broken.

c) HLA Hart
• Law is made up of institutional facts like orders and rules
and those are made by people thinking and acting.
• Rules and regulation that come from people or group of
people.

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d) Roscoe Pound
• Sociological view
• Law is an instrument of social engineering – to maximize
the fulfillment of interest of the community, provide
smooth running of the machinery of society.
• Controlling device used by the upper class on the lower
class.
e) John Salmond
• Realist view
• The body of principles recognised and applied by the state
in the administration of justice
• Rules of conduct laid down by the person acting as judicial
organ – law is what judge declared.
• Realism means relating to the real world, the world as it
actually operates. 8
 Functions of law

 Administration of justice – what lawful and unlawful

 Granting powers to certain bodies/institutions
 Maintaining standard
 Maintenance of peace and social orders
 Resolving of disputes/conflicts
 Social control – prescribe punishment and remedies in the
event of breach.
 Social engineering/ construction
 Determination of legal personality

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 DIFFERENT PERSPECTIVES OF LAW
a) Law as a cultural expression

• Law and people cannot be isolated from each other – since law is
connected to social life of the people and developed in certain
places and in certain communities.
• Law as a result of the slow development of society through
centuries.
• Savigny (historical jurist) believes that legal system was part of
the culture of a people and it is the expression of the people - from
habit to value, from custom and tradition to rules and regulation.
• Montesquieu states that the law was the product of custom, local
manner and physical environment where a good law must
conformed with the spirit of society.

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b) Law as divine revelation
• Natural Law jurists believe that all laws are based on
divine revelation or some of the right reason immanent in
the nature of thing.
• Law of the nature or moral laws.
• Islam and Christian have their own divine revelation i.e.
the Holy Quran and Bible; functions as God’s decree to its
followers that must be conformed and followed.
• Contrary to the belief of positivist that argue that law
must be enacted by the legislator.

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c) Law as an instrument of government
• Law is intimately associated with the nature of the State –
because law is an expression of the will of the State i.e the
government.
Example : law introduced by the government must be
abide by the citizens – 6% GST.
• Marxism-Leninism - Law is used as the only tool of the
State to maintain and safeguard the interest of the
capitalist class, a dominant group in society.
• Malcolm Wood claims that law is but one a weapon in
massive political tool- combination of forces, actions and
inactivity. E.g. forces including repression, covert
practices, media manipulation, censorship etc.
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d) Law as a legal system
• The legal system consist of – Parliament, Judiciary,
Executive, legal profession and etc.

• The existence of a legal system is measured via:

 Statute, Regulation, Act - Laws in that particular

society
 Parliament (Legislature) - Institution for making and
amending the laws
 Judiciary (Court) - Agency that determines the
violation of the laws / settling disputes between
people.
 Law Enforcers - Agency to enforce the law

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 SOURCES OF LAW
Several factors have contributed to the evolution of law.
a) Custom
• Based on the general usage of the family, clan or tribe –
shaped by the cooperative action of the whole community
and not by legislation or sovereign.
• Initially not law but when States recognizes the these
customary rules as binding, they acquire status of law.
b) Religion
• The Mohammedan Law – Quran and shariat
• Hindu law – Code of Manu

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c) Judicial decision
• Judge made law – related with the Common Law system.

d) Legislation
• Law enacted by the parliament – where sovereign power
will issue a decree concerning new matters.
Example: ISIS threat in Malaysia – lead to the passing of
POTA
• It considers as one of the most prolific and direct source
of law.

e) Scientific commentaries
• Discussion by the eminent jurists also modify and
developed law – express their opinions and
commentaries.
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a) PUBLIC LAW
• The law that govern relationship between individual and
government.
• Includes:
a) Constitutional law
b) Criminal law
c) Administration law

b) PRIVATE LAW
• Governs the relationship between individuals -compensate the
injured parties, to recovered property and to enforce obligation.
• Includes:
a) Tort d) Trust
b) Contract
c) Family
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c) SUNBSTANTIVE LAW
• Law that classifies right and responsibilities of individual

d) PROCEDURAL LAW
• Lays down the rules governing how things should be done.
Example: How summon should be serve
How to arrest should be made

e) INTERNATIONAL LAW
• Law that covers a relation of country inter-se

d) NATIONAL LAW
• Law that governs a relation between states.

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WHAT WOULD HAPPEN IF THERE
WERE NO LAWS???

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