Topic X

Nature of Law

LEARNING OUTCOMES
By the end of this topic, you should be able to:
1.

Explain the nature of law;

2.

Differentiate the relationship between custom, morality and law;

3.

Evaluate the link between law, the state and the constitution; and

4.

Summarise the need of law.

X INTRODUCTION
It is important to understand and appreciate the foundation of law. Therefore,
this unit will discuss the nature of law, custom, morality and law; and the
relationship between the three. It will go on to discuss the Law, the State and the
Constitution.

1.1

NATURE OF LAW
SELF-CHECK 1.1

Before proceeding to the first topic of the module, think of the following
question. Based on your understanding of the general interpretation of
law, how would you interpret law? Do you know to what extent the
law is important in our life?
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"Wherever Law ends, Tyranny begins." (Second Treatise of Government, sec.

202.)
Over the centuries, there have been numerous attempts to produce a universally
acceptable definition of 'Law'. Let us have look at the following definitions
provided by various known historians, philosophers and leaders:

As you may clearly see, these definitions suggest that there are no clear
agreements on what is 'Law'. Each writer has his own view, and each view is
based on the writer's own moral, political, religious and ethical point of view and
the influence of the society in which they lived. While there is lack of agreement
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on a precise definition, two common themes identified in the definitions

provided are:
(a) the idea of control by humans; and
(b) the idea of human conduct being regulated by a superior authority or power
(usually the state).
While it is difficult to provide a precise definition of 'law', a useful general
definition could be:

These rules have been established by the people through their parliamentary
representatives (in the form of statute law) and by the judges in our courts (in the
form of common law) and are legally enforceable. They set standards of conduct
between individuals and other individuals, and between individuals and the
government.

1.2

DISTINCTION BETWEEN RULES AND LAW

SELF-CHECK 1.2

We were taught to respect the law since we were in primary school and
our lives are governed by law. At the same time, we are asked to obey and
follow the rules wherever we go and in what ever we do in our everyday
life. Both law and rules are our guidance but do you know the differences
between these two?

While it may be said that the law is a set of rules, it doesn't automatically follow
that all 'rules' are (or will be) 'law'. There are many rules governing daily
behaviour that are not laws. They are:
(a)

rules controlling sport;

(b) rules regulating social behaviour; and

(c)

rules in a family.

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In determining whether a 'rule' is 'law', it is necessary to consider two major

questions as shown in Figure 1.1:

Figure 1.1: Two major questions is determining 'rule' is 'law'

1.3

THE NEED FOR LAWS

SELF-CHECK 1.3

Can you imagine what would happened if there are no laws to govern our
lives? Could you anticipate its effect on our country, economy and society?
A point to ponder.
Without law in a given society, anarchy would prevail. The need and importance of
law can be seen in the aftermath of the bloody May 13th racial riots of 1969, when a
state of emergency was proclaimed. BERNAMA also has its own website and this
enables the public to access to news and information directly from BERNAMA.

1.4

RELATIONSHIP BETWEEN 'JUSTICE' AND

'LAW'

A concept that is closely identified with law is justice. Like 'law', the term 'justice'
is difficult to define. For example, it can be used in a number of different contexts
such as shown in Figure 1.2.

Figure 1.2: Different contexts of term 'justice'

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They may or may not all coincide, depending on the situation and the context in
which they were used. For example, the fine for parking in a 'No Parking Zone' is
the same whether you are rich or poor. This may be considered legally and
morally just, as everyone is seen to be equal in the eyes of law. But the person
who is rich can more easily afford to pay the fine than the person who is poor.
Thus, the question then arises of whether that is morally just.

But this does not make the task of defining the concept of justice any easier.
However, a common agreement as to the terms 'fair' and 'right' exists. As times
change, so do the attitudes and values of society and the individuals within that
society. For example, in today's society, co-habitation by couples (not necessary
same sex) is not frowned upon by the society like it was used to. This too
depends on which society it is being referred to. This is in the context of the
western society. As Lord Denning, one of England's greatest judges, suggested:

Law embodies what society believes is right or fair. Justice in our society means
that everyone is entitled to a fair trial under a set of rules that applies equally to
both sides in an open court. However, it is unrealistic to suggest that our legal
system can be absolutely full proof.
Our legal system recognises its fallibility in a number of ways:
(a)

A court hierarchy allows a person, within certain defined limits, to appeal to

a higher court where it appears that there has been a miscarriage of justice or
an error in law.

(b) Writ of habeas corpus, where the court decides on the legality of a person's
imprisonment when they are being held for no stated cause.
On the basis of the legal system that Malaysia inherited from England, Malaysian
society has developed a reasonably fair system of rights and duties. Where
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everyone has their rights infringed, they may seek relief through the law. This
may take the form of a civil action where they may seek remedy such as, the form
of monetary compensation (or damages) from the other party. Or it may be by
way of a complaint to the police, resulting in a criminal prosecution against the
other party and perhaps their gaoling by the courts. It may even be an action in
both civil and criminal law.

Activity 1.1
Identify these statements and determine whether they are 'law' or 'rules'.
Tick (9) where most appropriate.
No.
1.
2.
3.
4.
5.
6.
7.
8.

1.5

Statement
No smoking in the public toilet, hospitals and
petrol station.
Do no drink alcohol while you are driving.
Please renew your driving license.
You must wear the school uniform whenever you
go to school.
You must not make noise when you are in the
mosque.
You must not make noise when you are in the
mosque.
You will be prosecuted if you are caught
purchasing pirated CD's.
Your application for loan will be rejected if you are
found to have a criminal history.

Law

Rules

CUSTOM, MORALITY AND LAW

SELF-CHECK 1.4

Whenever we talk about custom, it will remind us of our older

generation where their lives are filled and governed by custom and
tradition. However, when we focus our attention to morality, it is our
religion that taught us with what is moral value. Law, on the other hand is
the one that rules not only our individual life but the country, economy
and society. All are important to our lives, having said, before moving on
the topic, can you think of the relationship between custom, morality and
law?

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Often, these three concepts and beliefs are generalised and codified in a culture or
group, and thus served to regulate the behaviour of its members. Conformity to
such codification may also be called morality, and the group may depend on
widespread conformity to such codes for its continued existence. A "moral" may
refer to a particular principle, usually as informal and general summary with
respect to a moral principle, as it is applied in a given human situation.
The adage "you cannot legislate morality" is false in that every statute mandates
or restraint some acts in order to preserve a moral value. The law requires drivers
to be licensed as a means of protecting human life. Littering is illegal because of
the value we place on conserving a beautiful and healthy environment.
In another sense, however, it is true that morality cannot always be subject to law.
Nor should it be. A society in which every good deed or noble act is mandated by
law would be tyranny. Meaningful moral action requires reflection, choice, even
failure in order for people to learn and grow.
Morality is endowed with yet another meaning when we say "moral philosophy",
but then, what we really mean is "ethics" or "ethical theory". Making this
distinction will be helpful, since we know that many people have conceptions
about right and wrong without ever determining why, but simply accepting
them. To most psychologists, the thing called "conscience" is some kind of an
overlay of impressions and prohibitions of musts, ought and don'ts which society
has imprinted on the sensibilities of people, so that there is no standard of right
and wrong except what people think and are taught to believe.
Law is not the beginning place, nor is it the ending place when it comes to ethics.
Our moral ideas often shape the character of our laws. Criticism of laws and
proposals for change in our laws are often based on a shared moral ideal that is
not being achieved.

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It has been suggested that common law is the crystallisation of ancient common
customs; the judiciary in the Middle Ages, through their historic travels
accomplished this. In certain circumstances, parties may assert the existence of
customary practices in order to support their case.

It is through public records, opinions of persons who are likely to know the
existence of such customs and traditions also village oral traditions for the
existence of customs may be proved.
Customs may be recognised if "there is proof of the existence of the custom as far

back as living witnesses can rememberin absence of any sufficient rebutting

evidence"
As per Halsbury's Laws of England, vol 12, 4th edn., para 422, quoted in the case
of Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn. Bhd. & Ors [2001].
The English case of Egerton v Harding (1974) laid down the requirements as
shown in Figure 1.3 that must be satisfied in order for a local custom to be
recognised:

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Figure 13: The requirements for local custom to

be recognised

Law develops as society evolves. Historically, the simplest societies were tribal.
The members of the tribe were bonded together initially by kinship and worship of
the same Gods. Even in the absence of courts and legislature, there was law a blend
of custom, morality, religion, and magic. The visible authority was the ruler, or
chief; the ultimate authorities were believed to be the Gods which were revealed in
the forces of nature and in the revelations of the tribal head or the priests.
Wrongs against the tribe, such as sacrilege or breach of tribal custom, were met with
group sanctions including ridicule and hostility, and, the tribe members thought,
with the wrath of the gods. The gods were appeased in ritualistic ceremonies ending
perhaps in sacrifice or expulsion of the wrongdoer. Wrongs against individuals, such
as murder, theft, adultery, or failure to repay a debt, were avenged by the family of
the victim, often in actions against the family of the wrongdoer. Revenge of this kind
was based on tribal custom, a major component of early law.

Bruce Benson has concluded that customary legal systems tend to share the
following basic characteristics:
(a)

a strong concern for individual rights;

(b) laws enforced by victims backed by reciprocal agreements;

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(c)

standard adjudication procedures established to avoid violence;

(d) offences treated as torts punishable through economic restitution;

(e)

strong incentives for the guilty to submit to the prescribed punishments due
to the threat of social ostracism; and

(f)

legal change by means of an evolutionary process of developing customs

and norms.

Rules and laws need not be created or enforced by a central authority. Customary
law has many advantages and continues to govern a wide range of social
interactions and to promote order in many areas of modern society.
Unfortunately,ACTIVITY
today's intellectual climate largely fails to recognise the existence
and potential for customary law creation.
One of the fundamental legal precepts of modern civilisation is that no person
must suffer punishment or pay damages for any conduct not expressly forbidden
by law. This precept is reinforced by the fact that the legal rights of both
individuals and corporate bodies should be determined through the courts. This
basic rule of law is at the root of our present legal system. However, with the
need for decentralisation, judicial or quasi-judicial powers or authority have been
given to officials who stand more or less in connection with the government of
the day and who may be subject to government influence. However, the decisions
of such delegates are still subject to the scrutiny of the courts by way of judicial
review through the use of what is termed Administrative Law. Administrative
Law is concerned with those rules of law which relate to the exercise of the
executive government's powers and privileges, as well as those of public and
statutory authorities.

ACTIVITY 1.2
Based on your understanding on what you have just learnt list three
requirements which need to be satisfied in order for custom to be
recognised.

1.6

LAW, THE STATE AND THE

CONSTITUTION

A country with a federal system like Malaysia has a federal government (in
Wilayah Persekutuan) as well as state governments. Both have law making
powers. The document that created our federal system was the Malaysian
Constitution which is known as the Federal Constitution. The constitution makes
provision for the division of law-making power between the federal and state
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government. A legal system administered almost entirely on the basis of a

political unit is known as a state. Malaysia has thirteen states and in every state
there is a government. Malaysia has a written constitution. The definition of what
is a constitution can be seen in the following.

A constitution is a settled arrangement by which a country's parts or elements,

within a geographical district, combine themselves due to some common traits or
particular features of mind or character of those in the combined group (a
country) and which distinguishes it from other combined groups (other
countries). It is not so much that a constitution of a country determines its nature
and character; but, rather, that a constitution reflects a country's nature and
character. It is a mode in which a state is constituted or organised, and, by which,
its physical nature or character is determined and which ultimately determines a
country's healthiness, strength and vitality.

In the case of a written Constitution, the name is sometimes applied to the

document embodying it. In either case it is assumed or specifically provided that
the constitution is more fundamental than any particular law, and contains the
principles with which all legislation must be in harmony.
Most everything that goes into the makeup of a constitution (the traits and
character of one constitution, when compared with others, will be as varied as the
people it is intended it should govern) can come, and go, and be modified in
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degree; but, as sine qua non, it governs all who occupy a geographical area of a
country.

Ernest Renan (1823-1892) was an important French theorist who wrote about a
variety of topics. His famous essay "What is a Nation?" was first delivered as a
lecture at the Sorbonne in 1882. It continues to be an important influence on
scholars. One can see Renan's influence in the scholarship of people like Benedict
Anderson.
Ernest Renan said this:

A nation is a soul, a spiritual principle. Two things, which in truth are but one,
constitute this soul or spiritual principle. One lies in the past, one in the
present. One is the possession in common of a rich legacy of memories; the
other is present- day consent, the desire to live together, the will to perpetuate
the value of the heritage that one has received in an undivided form. Man,
Gentlemen, does not improvise. The nation, like the individual, is the
culmination of a long past of endeavours, sacrifice, and devotion. Of all cults,
that of the ancestors is the most legitimate, for the ancestors have made us
what we are. A heroic past, great men, glory (by which I understand genuine
glory), this is the social capital upon which one bases a national idea. To have
common glories in the past and to have a common will in the present;
are the essential conditions for being a people. One loves in proportion to the
sacrifices to which one has consented, and in proportion to the ills that one has
suffered. One loves the house that one has built and that one has handed
down. The Spartan song-"We are what you were; we will be what you are" - is,
in its simplicity, the abridged hymn of every patrie.
More valuable by far than common customs posts and frontiers conforming to
strategic ideas is the fact of sharing, in the past, a glorious heritage and
regrets, and of having, in the future, [a shared] programme to put into effect,
or the fact of having suffered, enjoyed, and hoped together. These are the
kinds of things that can be understood in spite of differences of race and
language. I spoke just now of "having suffered together" and, indeed,
suffering in common unifies more than joy does. Where national memories are
concerned, griefs are of more value than triumphs, for they impose duties, and
require a common effort.
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A nation is therefore a large-scale solidarity, constituted by the feeling of the

sacrifices that one has made in the past and of those that one is prepared to
make in the future. It presupposes a past; it is summarized, however, in the
present by a tangible fact, namely, consent, the clearly expressed desire to
continue a common life. A nation's existence is, if you will pardon the
metaphor, a daily plebiscite, just as an individual's existence is a perpetual
affirmation of life. That, I know full well, is less metaphysical than divine right
and less brutal than so called historical right. According to the ideas that I am
outlining to you, a nation has no more right than a king does to say to a
province: "You belong to me, I am seizing you." A province, as far as I am
concerned, is its inhabitants; if anyone has the right to be consulted in such an
affair, it is the inhabitant. A nation never has any real interest in annexing or
holding on to a country against its will. The wish of nations is, all in all, the
sole legitimate criterion, the one to which one must always return.
We have driven metaphysical and theological abstractions out of politics.
What then remains? Man, with his desires and his needs. The secession, you
will say to me, and, in the long term, the disintegration of nations will be the
outcome of a system which places these old organisms at the mercy of wills
which are often none too enlightened. It is clear that, in such matters, no
principle must be pushed too far. Truths of this order are only applicable as a
whole in a very general fashion. Human wills change, but what is there here
below that does not change? The nations are not something eternal. They had
their beginnings and they will end. A European confederation will very
probably replace them. But such is not the law of the century in which we are
living. At the present time, the existence of nations is a good thing, a necessity
even. Their existence is the guarantee of liberty, which would be lost if the
world had only one law and only one master.
Through their various and often opposed powers, nations participate in the
common work of civilization; each sounds a note in the great concert of
humanity, which, after all, is the highest ideal reality that we are capable of
attaining. Isolated, each has its weak point. I often tell myself that an
individual who had those faults which in nations are taken for good qualities,
who fed off vainglory, who was to that degree jealous, egotistical, and
quarrelsome, and who would draw his sword on the smallest pretext, would
be the most intolerable of men. Yet all these discordant details disappear in
the overall context. Poor humanity, how you have suffered! How many trials
still await you! May the spirit of wisdom guide you, in order to preserve you
from the countless dangers with which your path is strewn!
Let me sum up, Gentlemen. Man is a slave neither of his race nor his language,
nor of his religion, nor of the course of rivers nor of the direction taken by
mountain chains. A large aggregate of men, healthy in mind and warm of
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heart, creates the kind of moral conscience which we call a nation. So long as
this moral consciousness gives proof of its strength by the sacrifices which
demand the abdication of the individual to the advantage of the community, it
is legitimate and has the right to exist. If doubts arise regarding its frontiers,
consult the populations in the areas under dispute. They undoubtedly have
the right to a say in the matter. This recommendation will bring a smile to the
lips of the transcendants of politics, these infallible beings who spend their
lives deceiving themselves and who, from the height of their superior
principles, take pity upon our mundane concerns. "Consult the populations,
for heaven's sake! How naive! A fine example of those wretched French ideas
which claim to replace diplomacy and war by childishly simple methods."
Wait a while, Gentlemen; let the reign of the transcendants pass; bear the
scorn of the powerful with patience. It may be that, after many fruitless
groupings, people will revert to our more modest empirical solutions. The
best way of being right in the future is, in certain periods, to know how to
resign oneself to being out of fashion.
The first notion of what a constitution is, is derived from the OED, "to settle, fix,

or enact; to establish; to form or compose: to make up; to make a thing what it is."
A constitution is what a country is. While the essentials may well be written up in
one document, no one document can be comprehensive in describing every
tradition and all the cultural aspects of a country's makeup. This is the reason,
why that written constitutions are expected to be short; they need only stick to
the essentials. Constitutions should settle and fix values such as life and liberty;
and, critically, the form of government it selects for itself.
In the dictionary, Government, has been defined as: "regulation; control; restraint;
the exercise of authority; direction and restraint exercised over the actions of men
in communities, societies, or states; the administration of public affairs; the
system of policy in a state; the mode or system according to which the sovereign
powers of a nation, the legislative, executive, and judicial powers, are vested and
exercised; etc. etc."
However, nowhere, in this dictionary, does it say that government is a biological
identity; it's not a person, or anything else that is capable of individualistic
thought; it's a theoretical concept.

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In Malaysia, the Malaysian Constitution is called the Federal Constitution. The

Federal Constitution is the supreme law making body.

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Previously the roots of "The Rule of Law" sink deep into the days when there was
belief in the supernatural by most people. However, these days, it is understood
and asserted that the doctrine is derived from theories of natural law; and, is
applied when there is an exercise of arbitrary power. Citizens of any country,
including elected and appointed officials of government, must be subordinated to
impartial and well-defined principles of law.
In Democratic countries, the concept that the day-to-day exercise of executive
power must conform to general principles as administered by the ordinary
courts. A government must be ruled by law and not the law ruled by the
Government. The undisputed authority when it comes to the definition and
analysis of the Rule of Law is, of course, A. V. Dicey, and we now turn to him:

Dicey's Law of the Constitution, 1885 (London: MacMillan, 9th ed., 1950), p. 194.
Dicey, incidentally, was very much concerned about governmental incursions
being made into The Rule of Law.
The main reason a country implements a constitution is to curb abuses of any
group, including government, through the misuse of power.

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EXERCISE 1.1
What is the meaning of morality?

Law has various definitions however in any definition there exists a common
trait.

Law is a binding custom or practice of a community: a rule of conduct or

action prescribed or formally recognised as binding or enforced by a
controlling authority: the whole body of such customs, practices, or rules.

Custom and Morality determines laws of a country.

Constitution is the most powerful and important source of law.

Different authorities such as federal, state, and local governments create laws.

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