1. (A) Explain the purpose and the functions of law.

In a free society, every man lives under the rule of law. Law in general is known as a
general rule of conduct. In the Oxford English Dictionary, law is defines as the body of enacted
or customary rules recognizes by a community as binding. Others define law as the body of
principles recognized and applied by the State in the administration of justice. In simpler mean,
law may be defined rules and regulations made by person or persons in authority with an aim to
regulate human conduct and which provide sanctions for its disobedience.
There are five notable purpose and functions of the law. First of all, law regulates the
human conduct. Law controls human action of citizen by putting sanction on it. It is the duty of
the State to formulate laws that elevate the moral standard of the people. The laws of the State
thus conform to the prevailing standard of morality. Some action of person may be illegal
although it may not be immoral so some acts have to be control by the state. The breaching of
law is punishable by the courts. Law is not merely the command of sovereign, but it also
represents the idea of right and wrong based on the prevalent morality of the people. However, it
is interesting to note that law only controls and regulates external human conduct. It is not
concern with the internal human nature of a person. Law will move into action only when the
bad intention is translated into action and some harm is done to another individual. Disobedience
of law is usually followed by punishment and the fear of punishment acts as a deterrent to the
breach of the law. So, law establishes the standard of human conduct that is minimally
acceptable in the society.
The next purpose and function of law is it promotes the common good. Common good
refers to the advantage or benefit of all people in society or in a group. Law promotes the
common good when human obeying the law, paying taxes honestly and respecting the rights and
liberties of others. A harmonious society has order. Every citizen implicitly consents to
maintaining social order by upholding the law even when he or she does not like it. Not only
that, laws provides the common good with responsibility and self control. For the common good,
the law is applicable equally to all people, means no person is above the law. Those who violate
the law will be punished regardless of the social status, races, wealth and other criteria. This help
in maintaining order in a country consistent with the societys guidelines.
The third purpose and function is protecting the rights and enforcement of rights of an
individual. As enacted in the Constitution from Article 5 to 13, it provides matters concerning the
liberties and the rights of the citizens. Law acts as a protection of these various liberties and

rights from any violation or unreasonable intrusions by any other individuals, governments, or
organizations. For example, in Article 5 of Federal Constitution, every person has a right to life
and liberty. A persons life or personal liberty cannot be taken away unless it is in accordance
with law. These fundamental liberties are rights and freedoms that we have as human beings and
they are said to be guaranteed and cannot be taken away unless the Constitution itself allows it.
The fourth purpose and function is to settle the disputes. Due to conflicting interest and
different needs between each individual, disputes are unavoidable. So one of the main functions
of law is the orderly resolution on disputes. Dispute is the stage where conflict is made public. It
is triadic, meaning that it involves the third party. The legal system provides resolutions for
many different kind of disputes. There are two form of dispute resolution, one that does not
involved the third party and one that does involved a third party. The examples of the disputes
are the disputes over property and money, claims for damages and restitution and the issues of
civil rights. It is the responsibility of the court to come out with an agreement or settlement of the
disputes.
The fifth purpose of the law is to promote economic activities. The role of the law in
promoting economic prosperity of the country cannot be undermined because our day to day
activities and interaction are regulated by law. Law serves and economic function because it
recognized the freedom to do business within defined parameters. For example, the law of
contract is devise to promote market institutions and the economy by recognizing and protecting
the freedom to choose interfaced by government policies. Promoting competition through law
managed to prevent monopolies and increase the efficiency of goods and service delivery. In
short, law is needed to further develop the economic sector of the country. Last but not least, the
purpose and functions of the law is to helps maintain a social values. If there is no preservation,
our social values will completely disappear.

1(b). Explain the differences between the public and private or personal law.
Law can be classified in many ways. One of the more commonly adopted ways is to
classify law into two three broad divisions namely public law and private law. There are highly
significant differences to distinguish between public law and private law.
Firstly, public law refers to the law which governs the relationship between individuals
and the State. The private law refers to the matters that affect the rights and duties of individuals
amongst themselves. For example, if you saw a man stealing a product from a convenience store,
he is violating public law. He committed the crime of theft that affects everyone. However, if you
trespass a private property, you are violating a private law.
Secondly, public law mainly consisted of criminal law and constitutional law. The
criminal law codifies the various offences committed by individuals against the State. For
example murder, cheating, theft, and counterfeiting. It aims at punishing the criminals and
suppressing crime. Thus, criminal law imposes on individuals the obligations not to commit
crimes. A crime is a wrong against the State which punishment is inflicted by the State and the
proceedings being brought by the Public Prosecutor. Meanwhile constitutional law refers to the
rights of individuals in the State. It also covers areas dealing with state and federal powers. On
the other hand, private law or civil law mainly consists of law on contract, tort and trust. The
cases are tried without the interference of government even though the legislative branch or
judicial branch may have a hand in drafting and adopting the laws involved.
Thirdly, in term of punishment, public law meant to serve as a lesson to the society and
the punishment is under the penal code. For the private or civil law is intended to give
compensation to persons injured, to enable property to be recovered from wrong doers and to
enforce obligations through contracts and trusts.

2. Malaysian law is derived from various sources and over the years it has developed into a

definite system of law as we find and apply it today.

Identify and briefly describe each of these sources of Malaysian law.
The word sources bring a different meaning which may include the historical sources, legal
sources or place where the law can be found. Historical sources apply to the factors have
influenced the development of the law including religious beliefs, local customs and traditions
and jurist opinion. The legal sources are the legal rules that invent the law. In this context,
sources of Malaysian law refer to the legal sources or legal rules that make up the law in
Malaysia. Malaysia law can be divided into two category, written and unwritten law.
Written law is the most important source of law in Malay Written sources come into
existence through a formal written process in Parliament. It comprises of the Constitution,
Legislation and Subsidiary Legislature. Malaysia is a Federation made up of thirteen States with
a written constitution namely Federal Constitution, which is the supreme law of the land. Federal
Constitution came into force in 1957 and defines the rights and responsibilities of the federal
government, the member states of federation as well preserve the basics and fundamental rights
of the citizens. Apart from the Federal Constitution, another type of Constitution is State
Constitution. Each State possesses its own constitution managing the administration and other
related matters of state government. The State Constitution contains provision as establish in the
Eight Schedule of Federal Constitution. Some of most notable provisions include matters
concerning the Ruler, the Executive Council, financial matter, local administration and Islamic
Law.
Besides that, Legislation is another type of written source of Malaysian law. Legislation
refers to law enacted by legislature and by bodies and persons authorizes by the legislature. In
Malaysia, laws are legislated by Parliament for the federal level and State Legislative Assembly
at state level. Laws that are enacted by Parliament after 1946 but before Malaysias
independence in 1957 are known as Ordinances but those made after 1957 are called Acts. For
the laws made by State Legislative Assembly, except for Sarawak, are referred as Enactments.
The laws in Sarawak are called as Ordinances. Parliament and State Legislatures are not
supreme. The subject-matter for legislation is divided into Federal and State Governments.
Parliament enacts laws based on matters enumerated in List I of the Ninth Schedule while State
enacts laws as stated in List II. Matters fall under List III are within the concurrent competence
of both authorities.

The last type of written sources is Subsidiary Legislation. It is law made through powers
delegated by legislature to a body or person via enabling or parent statute. Under Section 3 the
Interpretation Act 1948 and 1967 defines subsidiary legislation as any proclamation, rule,
regulation, order, notification, by-law or other instrument made under any Act, Ordinance or
other lawful authority and having legal effect. Subsidiary Legislation played a vital role as
legislation by Parliament and the State Legislature is insufficient to provide the laws required to
govern matters on everyday basis. So, this written law deals with the matter in which legislature
has neither the time nor the technical knowledge to enact laws. In simpler words, it is the law
made outside of the parliament. Legislature only provides the basic and main laws leaving the
details to the authorities to whom they delegate the legislative powers. The authorities may be
Ministers, local authorities and others. For example, deciding on various parking rules made by
municipal councils.
Next, is the second source of Malaysian law which is unwritten laws. The laws are not
enacted or promulgated in any statutes and can be found in case decisions. Mainly it comprises
of Principles of English Common Law and Equity, Judicial Precedent, Principle of Islamic Law
and Local, Custom, and Practices. English Common Law and Equity forms part of the laws in
Malaysia. However, not all of Englands common law and rules of equity form part of Malaysian
law. Section 3 (1) of the Civil Law Act 1956 stated that, in Peninsular Malaysia, the courts shall
apply the common law of England and the rules of equity as administered in England on 7 th April
1956 while in Sabah and Sarawak shall apply it together with statutes of general application, as
administered in England on December 1st, 1951 and December 12th, 1949 respectively. Scenarios
that allowed the application of English Law are when it deemed suitable for local circumstances,
absence of local laws and cut off date.
Second type of unwritten law is Judicial Precedent. This refers to the law as developed
through cases decided on superior courts. Under the doctrine of binding judicial precedent, the
decision of higher courts must be followed by the lower courts in similar cases. Only the
decisions of the Superior Courts are being refereed to and regarded as the sources of law. This is
to ensure the fairness and uniform application of the law. Judges do not decide cases arbitrarily.
They follow the system of binding judicial precedent known as stare decisis. The doctrine of
stare decisis means in a situation where the material facts of cases are similar, court must follow
the previous decision of a higher court or its own previous decision as well as the previous
decision of a court of the same level.

The third type of unwritten law is Principle of Islamic Law. The Federal Constitution
stated that the Islam is the religion of Federation with Sultan as the head of Muslim religion in a
state while Yang Di-Pertua Negeri as the head of Muslim for Sabah, Sarawak, Penang and the
Federal Territories. According to Federal Constitution, States have the power to administer
Muslim Law. Malay-Muslim Law was the basic law of the land before British colonization. After
the British intervention in administration, Muslim Law used only to manage private matters.
However, civil courts still acknowledged the importance of Islamic Law to local circumstances.
The Ninth Schedule of the Constitution identifies the details of Islamic law
and personal and family law of persons professing the religion of Islam. It
consisted of Islamic criminal law and the constitution, organization and
procedure of Syariah courts. Syariah Court is the courts that enforce Muslim
law in the country. The courts dealing with matters of Islamic Law such as
marriage, dividing property and maintenance. The Islamic law is not
applicable for the non-Muslims.
The last type of unwritten source of Malaysian law is Local, Customs
and Practices. Custom refers to the norm or habitual practice. Generally, it
means the customs of the local inhabitants which have been accepted as
law. Customs are proved through repeated acts practices over a long time
that is considered ad a common consent they have become accepted norm.
Mainly customs related to family law such as marriage, divorce and
inheritance are given legal force by the courts in Malaysia. The customs of
Chinese and India customs concerning marriage and divorce had little effects
after the Law Reform (Marriage and Divorce) Act 1976, which abolished
polygamous marriages among them. On the other side, customary laws of
Malays, native customary law continue to regard as important sources of law.
In Peninsular Malaysia, there are two main types of Malay customary law
which known as Adat Perpatih and Adat Temenggung.