WHAT IS LAW?INTRODUCTION TO LAW 1LAW012NOR AKHMAL HASMIN

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a)Definition of law- general definition- definition given by juristsb)Function of lawc)Different perspectives of lawd)Where does the law come frome)Classification of law

TOPIC OUTLINE

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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 juristsa)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.

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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

Functions of law

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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.

DIFFERENT PERSPECTIVES OF LAW

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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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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

SOURCES OF LAW

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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 lawb) Criminal lawc) Administration lawb) PRIVATE LAW• Governs the relationship between individuals -compensate the injured parties, to recovered property and to enforce obligation.• Includes:a) Tort d) Trustb) Contractc) Family

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c) SUNBSTANTIVE LAW• Law that classifies right and responsibilities of individuald) PROCEDURAL LAW• Lays down the rules governing how things should be done.Example: How summon should be serve How to arrest should be madee) INTERNATIONAL LAW• Law that covers a relation of country inter-sed) 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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