06 Bdau2103 T2

Topic
Classification
of Law
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1.
Explain the four major types of law in the world;
2.
Differentiate between the three forms of common law; and
3.
Apply the concepts of public and private laws.
X INTRODUCTION
There are three major sources of law in the world. Malaysia adopts the common
law system and also the syariah law where applicable. The other type of system
which is the civil law system is widely practiced system in the European
Countries. There are a few types of law in the common law system which will be
discussed here.
2.1
CLASSIFICATION OF LAW
SELF-CHECK 2.1
Apart from Civil law, can you think of other legal system available in our
country?
National legal systems are very important for businesses as it lays down the
regulatory framework. Legal systems in the world are based on the values of
diverse cultures. It is generally accepted that legal systems are grouped into
families or models even though it is diverse. There are three major legal systems
in the world. They are the common law legal system, the civil law legal system
and the theocratic system.
Copyright Open University Malaysia (OUM)
TOPIC 2 CLASSIFICATION OF LAW 19
2.1.1
Civil Law System versus Common Law System
Two legal systems can be identified in the Western world. One is Civil Law,
which is based on the law of Rome, and which in turn forms the basis of most of
the legal systems in Europe; and is an underlying legal philosophy in many other
parts of the world (for example Japan and Latin America). It tends to emphasise
the rights of the parties to an action rather than the remedies available.
The other is common law, which forms the basis of English Law and is the system
used in Malaysia as well as in many other former English colonies. Unlike civil law,
common law was created by the decisions of judges on the basis of cases that came
before them, and it concentrated on remedies rather than rights. English judges were
more concerned with practical results in individual cases than theoretical outcomes.
The common law system is based on three forms which are shown in Figure 2.1.
Figure 2.1: Three forms of common law
While one major difference between the two systems lies on the emphasis placed
on rights and remedies. The second is the importance of judicial decisions in the
two systems. An important characteristic of the Common Law System is the
doctrine of precedent, which places great importance on previous judicial
decisions (especially those in higher courts). Civil Law System by contrast place
great emphasis on a complete code of written laws, with a comparative disregard
of individual judicial decisions.
The mode of procedure adopted by the two systems is also quite different. The
common law mode of procedure is described as 'accusatorial' (adversarial). The
parties, described as litigants, make 'accusations' at each other within the limits
establish by the rules of evidence. The judge does not participate, as a general
rule, in the examining process.
The judge's role is to decide on issues of fact (where there is no jury), and on
questions of law. The Civil Law mode of procedure is described as inquisitorial,
as here the judges are required to investigate the circumstances and get at the
truth. The judge will ask questions, and will often direct what sort of evidence he
20 TOPIC 2 CLASSIFICATION OF LAW
or she wants to hear. The role of the lawyer is to comment on the evidence and
cross-examine the judge's witnesses.
Table 2.1 summerises the differences between common law and civil law system:
Table 2.1: The Differences between Common Law System and Civil Law System
LAW
JUDICAL DECISION
MODE OF PROCEDURE
Common Law System
Doctrine of Precedent
'Accusatorial' (adversarial)
Civil Law System
Code of Written Law
Inquisitorial
2.1.2
Theocratic Law
This is also known as religious law and is based on religious precepts for
example, the Islamic law. However, most Islamic countries have legal systems
that are a blend of Islamic Law and Common Law or Civil Law.
Types of Laws:
Four major types of laws are as shown in Figure 2.2.
Figure 2.2: Four major types of law
Two minor types of laws are as indicated in Figure 2.3.
Figure 2.3: The two minor types of laws

(a)
Common Law
Common law forms the basis of, and is a main source for the legal system
and can be defined as:
Common Law became rigid and inflexible after the Provisions of Oxford
1258 when the Clerks of Chancery lost their ability to create new writs for
new wrongs.
b)
Equity
Equity is considered by many as another main source within the legal
system; implies fairness and justice in the law. Equity is developed as a
result of the rigidity and inflexibility of the common law. In the event of
conflict with the Common Law, Equity will prevail. It should be noted that
equity is supplementary rather than a complete set of laws in its own right.
(c)
Statute
Statute is also a main source, and the most important today, as the great
majority of law emanates from parliament. The role of the sovereign in the
law-making process has been supplanted by parliament, therefore, the
sovereign is probably no more than a figurehead in the parliamentary
process. Statute law overrules common law in the event of a clash between
the two.
(d)
The Shariah (Islamic Law)

Islamic doctrine states that the legislator does not have the power to change
the rules which forms the core of Islamic law. It consists of particular ethical
imperatives to which any Islamic political or economic system must
conform. The fundamental ethical principles enunciated in the Qur'an must
limit Islamic states. Any perceived conflict between them must be an error
of our understanding; therefore, it must be resolved by reasoned discussion
and study (ijtihad).
(e)
Merchant Law
Merchant law is a minor source of law which was developed out of both
local custom and international traditions based on Roman law.
(f)
Ecclesiastical or Canon Law

Ecclesiastical or Canon law is important in the early development of
English Law, particularly in the area of criminal law, marriage and
succession of property. Today, the influence of ecclesiastical law is limited
to administrative and disciplinary matters relating to church members and
church property.
ACTIVITY 2.1
Explain why do Common Law and Statute are considered the main
sources of law? If there is a conflict between these two, which one do you
think should prevail? State your opinion.
2.2
DIFFERENCE BETWEEN PUBLIC LAW AND

PRIVATE LAW
SELF-CHECK 2.2
Whenever there is a legal dispute between two parties in their private

capacity, it will be classified as private law. On the other hand, what does
it mean by public law? Can you differentiate between these two?
The decision between public and private law is not always mutually exclusive
and some areas of law might appear to fit into both sides of the dichotomy. The
two areas are often defined in terms of the respective bodies of law which revolve
around the state as a public institution as opposed to law which focuses on the
private relations between ordinary members (both natural and corporate) of the
community.
Accordingly, public law is concerned in the main with the state, or with states,
or with relations between the public institutions which comprise the apparatus
of a state. It will be concerned as well with the relationship between states, as
also between a state in its public capacity and its citizens.
In political theory, distinction between the public and private spheres has been
taken to arise from classical liberal philosophies of government. These have
usually separated, with varying degrees of stringency, the public arena from the
private arena of activity of its citizens. In turn, this has been taken as a necessary
separation in order to protect the freedom or liberty of the individual (and
perhaps the arena of the free market activity) from restriction or intervention by
the state.
It may be that not all legal theorists would accept this basic separation of the
public and the private, at least not as if it were inviolable. Many have suggested,
for example, that this entails too strict a gap between the individual and his or her
obligations as a citizen. This, it is said contributes to a general disaffection of
citizens with, or their alienation from, the structures by which they are governed.
Indeed, some would argue further that it entrenches a conception of citizens who are
alienated from each other in the private sphere where they are engaged in
competitive relations with each other, thereby lacking a collective sense of identity
with each other as community. This is known as a failure of liberal (capitalist)
society, which might be corrected by showing that the individual is, in fact, only an
individual because his or her individual is a social creation in the first place.
Sometimes the classical republican model of citizenship, as one of total
involvement in social and political affair, is put forward as the vehicle for
criticism of this liberal disjunction between public and private and its attendant
social disaffection. Similarly, there were those who have suggested that the
dichotomy produces an inadequate conception of state itself and of the
constitution of such a state as a merely formal corporate entity or other than a
more substantive entity.
Such dichotomy has become, however, something of an accepted dualism. The
distinction does have certain functional relevance in that the principles of each
type of law are noticeably different in many respects. Although it is no doubt that
legal purists might suggests that the application of any legal principle be dealt
with on the same basis regardless of its public or private nature, this is hardly
what occurs in practice.
Due account is often taken of the fact that in dealing with areas of public law, the
exposition and application of the law is different. For example, taxing statutes need
to be dealt with for what they are attempting to levy financial impositions for public
purposes-not merely as attempts by one individual to extract penalties from another.
Constitutional provisions arguably ought to be interpreted by the courts as if they
are parts of a fundamental arrangement affecting the political structure of society
rather than as mere contracts or bargains negotiated between consenting individuals.
Indeed, this is how they are said to be legally interpreted. Public law would seem to
demand a different methodology from that which is applied in areas of private law.
Public law means those areas of law, which are focused with the relations
between domestic and foreign governments. The term also encompass areas of
law, which have an effect as between government as a public or political agency
and its citizen as such. When we talk about 'the government' here, we could have
referred to 'the state' or 'the Crown' instead and, for the time being, these terms
can be treated as interchangeable. Public law is therefore concerned with the
operation of the law at its most general and visible level.
There are six areas in public law as shown in Figure 2.4.
Figure 2.4: Areas for public law

Importantly, we include them as areas of public law because, in each case, we are
dealing with areas in which there is a sufficient measure of public interest. The
rights of individuals may be involved. Court intervention may even be required
in such area because the dispute in question involves original dispute between
particular individuals. But this is of no consequence because the nature of the
legal issues involved transcends the arena of merely private dispute. On the other
hand, private law is basically that body of law, which is concerned with relations
between members of a given legal system in terms of their private capacity.
Private law will include areas which are shown in Figure 2.5.
Figure 2.5: Private law areas
Again, this area will be discussed in detail as one goes on. No doubt, it will be a
little confusing if we say that areas of private law are potentially capable of
applying directly to governments, government agencies and so on. This is
because, apart from being a public agency, the state can also enter into dealings
and arrangements between its own agencies or with its citizens in a private
capacity. The state can be a party to a contract to sell or buy land, for example.
The state can, with some limitations, be held accountable for common law
wrongs such as negligence, or be a holder of private property.
What this means here is that it is necessary to recognise in the distinction between
public and private law some conception of what is termed the legal personality of
the actors involved. This requires some degree of digression in order to be
explained. Personality plays an important part in law although it is not an
altogether popular notion in current legal theory. It applies in a sense, which is
quite distinct from that which one finds in popular usage and in psychology.
In law, the notion of legal personality indicates certain characters or identities

which an individual might bear for the purposes of the legal system. In a general
sense, it indicates those individuals within the legal system who can be regarded
as the bearers of rights and duties or, perhaps, of rights and duties of a particular
sort.
The legal system recognises as persons, accordingly for the purposes of the law,
not only adult individual (or natural) human beings, but other 'pseudo-entities'
such as states, ministerial offices, the Crown, the Governor or Governor-General,
corporations, co-operatives and companies. These are sometimes called juristic
persons to distinguish them from natural persons.
They are given a theoretical existence in law which is distinct from the human
beings who happen to control them for the time being, yet they are regarded as
the bearers of rights and duties for the purposes of the legal system. In an
important sense, this means that these entities, especially those which perform
political functions, are themselves subject to the control of the law itself in that
the law regulates and can limit their activity.
This is one important sense of what is called the rule of law where all legal
persons within the legal system, including government entities and the Crown
itself, are subject to, and must act according to law.
The Crown is provided with certain special immunities and prerogatives as a
legal actor but it is itself constrained by legal principle. An example of the
attribution of legal personality to a private company is about the separate entity
theory of company law.
The juristic personality of companies and other corporations is now mostly a
matter of creation of the entity according to a statutory registration process, as is
now required under the Company Law in Malaysia.
At one time, incorporation of these commercial entities required a royal charter or
a special act of parliament, but the process became simplified in the midnineteenth century as a result of the increasing demands of commercial investors
for the special benefits of investment in limited liability companies.
There are still some corporate entities, which are created by special acts of
parliament, for example, the various primary produce-marketing agencies, which
are established for limited purpose under state legislation.
Historically, however, the achievement of the status of corporate personality for
the likes of the Crown and ministerial offices was a matter of constitutional
theory as it gained acceptance over time.
One thing to be acknowledged in relation to both natural individuals and

corporate entities is that legal personality is something that can in effect 'come
and go'. Children will attain full legal personality upon attaining their maturity.
They may lose it again, in whole or in part, if they become mentally incapacitated
or imprisoned for a serious offence; the latter known somewhat dramatically as
'civil death'.
Naturally enough, natural persons will lose their legal personality when they die,
although in some jurisdictions there is a fictional continuation of their legal
personality for the purpose of the winding up of their affairs and the disposition
of their property to those entitled to it under the law of inheritance.
Similarly, the scope of their legal personality, and therefore their capacity to
undertake legal acts, will be considerably circumscribed in the event that they are
declared bankrupt by an order of a bankruptcy court on one of the limited
grounds available under special bankruptcy legislation.
A Corporation acquires legal personality by its creation, usually according to the
statutory process, which we have mentioned above. During its existence its right
to undertake certain legal acts will be limited, however corporations, unlike
natural individuals, cannot perform acts such as voting at elections and cannot
commit certain crimes for example, crimes that would be regarded as inconsistent
with their corporate status. At one stage, corporations could not act beyond their
stated constitutional objectives; if they did so, their actions would be pronounced
ultra vires (beyond power).
This limitation has now been relaxed in relation to those entities incorporated
under the Company Law in Malaysia, although it might still apply in respect of
other entities such as co-operatives.
Corporations lose their juristic personality when they are wound up either
through a prescribed court process or by special legislation as appropriate. This
might not be immediate. The corporate entity might subsist for a time while it
undergoes a statutory process of liquidation under the control of a liquidator
before termination.
There is no need to go into the theory of legal personality at greater length at this
point. Suffice it to say, in the context of the division between public and private
law, that both states and ordinary members of the legal system are treated as
capable of having distinct public and private personalities.
In respect of the state as a legal person, it may be charged in performance of

actions in a public or political capacity, but, at the same time it can also act as
how a private individual might act (for example, entering into private bargains).
Same applies to an ordinary member of the legal system who can have rights and
duties in a public or a private capacity. On one hand, the member might be a
citizen and therefore liable to pay taxes or claim to be entitled to vote as a citizen.
On the other hand, that individual will enter into legal relations with other
persons and will undertake duties and obligations and acquire rights and
interests by virtue of that private capacity.
Accordingly, it is appropriate to recognise that both states and ordinary legal
persons will be affected by both public and private law from time to time, and
that much will depend upon the particular 'mask' which is being worn at the time
of the relevant act.
Just as states can pursue remedies at private law, the ordinary citizen may pursue
remedies, which are provided distinctly by public law. The nature of the rights
and the remedies may differ substantially, of course, but they are potentially
available nonetheless.
ACTIVITY 2.2
Classical liberalism theory has stated that society should be left free in
their private sphere without any government intrusion. However, certain
theorists disagree since individuals now are separated from their
obligation as a citizen. As a citizen, do you agree with classical liberalism
theory? Explain why.
2.3
SUBSTANTIAL AND PROCEDURAL LAW
2.4 DIFFERENCES BETWEEN INTERNATIONAL

LAW AND NATIONAL LAW
SELF-CHECK 2.3
Have you ever come across as to the meaning of international law? Do you
think the legal system has any significant similarities to national law? If
your answer is no, then what are its roles towards member nations?
We should first distinguish between international law and national law. The
international legal system deals with relations between countries while the
national legal system of each country mainly governs relations between people in
that country.
It is easy to think of international law as relating to war and peace, control of
international aggression, and the peacekeeping efforts of the United Nations.
These are certainly matters, which may involve international law, and are
perhaps the most important areas of that law, but they are also areas where
international law has most difficulty being effective. For the international legal
system, dealing in general with legal relations between countries lacks some of
the important features of national legal systems.
International Law has no legislature which means there is no body which
possesses a recognised and effective authority to pass legislation, which binds
countries. The United Nations General Assembly has considerable influence and
does pass resolutions about the rights and duties of countries, but its powers in
relation to countries are very much weaker than the powers of a national
Parliament over its citizens.
Only the Security Council has power to pass binding resolutions in furtherance of
its powers to deal with threats to the peace, breaches of the peace and aggression.
Other countries incur obligations in international law only if they choose to,
usually by becoming party to a treaty with one or more other countries.
United Nation Logo

http://www.worldvolunteerweb.org/assets/graphics/logos/un_logos/un/UN_sm.gif
Again, there is nothing in the international legal system corresponding to a police

force or an army. It is true that the United Nations has some peace-keeping
forces, but these are very small and have to be contributed by member nations,
and can operate effectively only with the consent of the countries where there are
deployed.
In general, these forces cannot do very much beyond policing political or national
boundaries although this, of course can be a difficult and useful function. An
operation such as the 1991 deployment of armed forces against Iraq following its
invasion of Kuwait is quite exceptional.
Finally, there are no courts of the kind that exist in national legal systems. There
are only bodies something like ordinary courts, notably the International Court of
Justice (the World Court). However, this court, like other international courts and
tribunals, can in general, decide cases only with the consent of the countries
concerned; it is therefore, quite different from national courts, in which people
can be sued or prosecuted whether they like it or not.
The United Nations and the international legal system generally are sometimes
criticised as being ineffective, or not being "law" at all. It is pointed out, quite
rightly, that international law did not prevent the Vietnam War or the IraqAmerica War or Middle East conflicts.
These matters, and many others like them, may not make newspaper headlines as
often as threats to world security, but in these areas, international law is of
considerable significance.
There are, of course, rules about war and peace, and they cannot be ignored,
however, it is broadly true to say that since the international legal system lacks
the legislatures, courts and police of national systems, and depends largely on the
consent of countries, it is most workable in areas where countries see their own
interests as best served through orderly cooperation with others. It is, therefore,
in matters of everyday relations between countries, rather than in the anxious
decisions of power politics, that international law plays its most effective part.
The major modern source of international law is agreement - the growing
network of treaties between two or more countries on host of matters. Many
multilateral treaties resemble legislation. In Malaysia, such international
agreements do not automatically become part of the national law. But they can
influence the development on Malaysian Law. They are also important in a
different way.
Among the subjects on which the Parliament has power to make law are external
affairs, and laws that gives effect to international standards may fall within the
power of the Parliament, even though they deal with topics that would otherwise
come within the legislative power of the States.
Human rights treaties provide a good example. Two fundamental treaties in this
area are as shown in Figure 2.6.
Figure 2.6: Two fundamental treaties of human rights
Both were drafted by the UN's Commission on Human Rights in 1954 and were
ultimately approved by the General Assembly in 1966. But they did not begin to
operate until ratified by the governments of 35 countries, and this did not happen
until 1976.
International Court of Justice

http://www.unescap.org/unis/img/icj1.jpg
Some regional treaty arrangements (notably the European Community) come

close to establishing entities that look like federal governments, with their own
legislators, courts and bureaucracies. The process of "integrating" the nations of
the European Community continues to develop during 1992.
There is an ever-increasing body of international law as indicated in Figure 2.7.
Figure 2.7: International law bodies

These bodies set out standards relating to matters of international concern, for
example human rights and the protection of the environment.
ACTIVITY 2.3
The Iraq-America war has brought a big impact on the world peace and
economy. This is where the world has critised the United Nation and The
International legal system as being ineffective. Do you or do you not agree
with the criticism? Why? State your reasons.
Do you know what is written in Article 5 of the International Convention

for the Suppression of Terrorist Bombing? This can be found in Report of
The
Six
Committees
of
United
Nation
in
http://www.un.org/law/cod/terrorist.htm.
2.5
2.5.1
A BRIEF SUMMARY OF THE TYPES OF

LAW
Growth of Public Law
The areas of private law have long been intrinsic to the Malaysian and English
Legal System. We will examine the historical development of some of the most
important areas of private law.
One could say that, until the end of the nineteenth century, private law was the
dominant type of law. There was no elaborate system of public law; it is principally
because of the lack of a highly complicated state and bureaucratic apparatus.
No doubt there were areas of what we would now term as public law for example
areas such as criminal law but at the time, law itself would have been regarded as
primarily concerned with guaranteeing the rights and duties of individuals.
However, with the emergence of what we call the Welfare State, from the end of
the nineteenth century, there was a growth in the area of the activity of the state.
There was also evidence of a concomitant growth in the area of bureaucratic
activity in order to conduct the affairs of an interventionist state.
This increasingly interventionist state activity might be seen as contrary to the liberal
ideology that we have mentioned earlier; on the other hand, it might be rationalised
as necessary in order to generate conditions of relative equality of opportunity within
which individuals might be able to pursue their life projects. This trend continues
down to the present although, in times of privatisation and rational market theory,
we can see a reaction against the further growth of the public sector.
We have seen throughout the twentieth century a major growth in public law,
and particularly in the area of administrative law, which is concerned primarily
with the legal rights of citizens in the context of bureaucratic activity.
Similarly we have seen the development of a considerable body of constitutional
law in areas which were somewhat beyond the designs of those who drafted the
Malaysian Constitution.
In many instances, especially in administrative law, there have been put in place as
mechanisms for the legal review of the decisions of public servants and bureaucratic
agencies by courts and tribunals which function in a way that is somewhat removed
from the traditional modus operandi of the common law courts.
Even private law, has, to some extent, been affected by the growth in public law.
One sees, in areas such as contract law a traditional area of private law the
tendency to re-evaluate private law thinking on the nature of the contractual
bargain and the rights of the parties to a contract in concepts which may well
derive from public law.
Clearly this is no longer clearly the case in the sense that the courts themselves
have shown a willingness to intervene in private bargains in appropriate cases.
2.5.2
Types of Public Law
What we will now seek to do is to provide an outline of certain of the major areas
of public law. The main areas will be discussed are:
(a)
constitutional law;
(b) administrative law;

(c)
taxation law;
(d) criminal law;

(e)
international law; and
(f)
environmental law.
There are other possible categories, but these will provide a suitable cross-section
of the general public law area. All of them are independent subject areas of study
in their own right. However, their introduction will provide some flavour of the
general field of public law.
It is of some importance to note the basic sense in which we are dealing with law
as it operates in the public domain. In particular, you should be able to see how
these areas of public law all involve the participation of public institutions
including, at the most general level, the state as encapsulating all of the public
institutions of law and government. Unlike private law, we cannot say that these
areas involve merely the regulation of, or the interrelationship between, private
citizens in a way that is appropriate, for example, to contract law.
ACTIVITY 2.4
In 19th Century, Public Law such as criminal law was regarded as less
primarily concerned with guaranteeing the rights and duties of individual.
However, at the end of 19th Century due to the emergence of Welfare
State, Public Law has begun to develop. Using your understanding of
what you just learnt, explain in detail the growth of Public Law as to the
expansion of activities by the state.
Figure 2.8: Types of public law
(a)
Constitutional Law
You have been provided a rather basic understanding of the nature of that
system as a federal system. The federal factor, which involves a division of
powers between spheres of government, national and regional, pervades
all aspects of organisation of the Malaysian legal system - not merely in
respect of the division of legislative powers between the various
governments, but also in respect of the practical arrangements of
governments as well as the structure of the court system and the
bureaucracy.
The pervasive influence of federalism is unsurprising and highly
appropriate. A constitution is to be understood as the basic structure of
operation of any political or legal system. In traditional legal theory, it is
sometimes conceived as the basic or fundamental law, which underlies the
operation of all other areas of law and legal institutions within that system.
To conceive constitutional principles as the fundamental law, might appear

to beg some questions about the nature of the constitution itself for the
reasons that we will be discussing. Indeed, this conception of the
constitution as essentially embodying a supreme law, rather than a set of
political propositions, both elevates the judiciary to a position of
constitutional prominence and has encouraged a certain degree of legalism
in the understanding of constitutional principles.
For one thing, it has always justified the role of the courts as the arbiter of
constitutional questions and issues. In truth, it would be more correct to say
that constitutional principles are reducible to a number of commonly
accepted political theories as to the appropriate role of the state or
government in particular societies. They are not principles which can or
should be interpreted legalistically, at least in the narrow, self-defining,
value-neutral sense in which legalism is conventionally understood.
Constitutional can be divided into two types as shown in Figure 2.9.
Figure 2.9: Two types of constitution

It is something of a misnomer to ascribe to Malaysia just one constitution

and this is, of course, the inevitable consequence of the manner in which the
federal structure came into being in Malaysia. We need to remember,
however, that the Malaysian federal system is made up of several partially
independent constitutional entities. The Federal constitution was formed
presupposing a unity of the peoples of various States. Each of those States
had its own history of constitutional development, which led to its
establishment as a more-or-less independent constitutional entity at the
time of federation. The States' existence as political and legal entities was
moderated but not obliterated by federation.
(b)
Administrative Law
The growth of public law mentioned above is in large part attributable to
the growth of administrative law.
Administrative law is the term, which is applied to the areas of law, which
purport to regulate the relationships between the citizen and public
officials, and particularly the bureaucracy.
With the growth in the bureaucracy from late last century there has been a
consequent increase in the range of official activities and the degree of
intervention of the bureaucracy in the everyday affairs of society. The
German sociologist Max Weber indicated as much at the turn of the century
when he foreshadowed the growth of administrative structures and of the
bureaucrats who purport to regulate the lives of the citizens of modern
political societies.
The growth in administrative activity is directly related to the growth of the
so-called Welfare State from the end of the last century. This conception of
the state, the development of which is at least reflected in the attempted
merger of classical liberal ideology with strands of socialist thought at the
end of the last century, affected a challenge to the early liberal concept of
the minimal state as put forward by thinkers such as J.S. Mill. The
unregulated market with minimalist government functions, which held
pride of place throughout the nineteenth century, was to be replaced with
the concept of the state which was interventionist in the interests of the
achievement of social betterment, the allocation of welfare for the relief of
poverty, the provision of pensions for the aged and the disadvantaged, the
redistribution of resources on an equitable basis and the erosion of the
traditional power base of a conservative aristocracy. As was suggested
earlier, this move could be rationalised in liberal ideology as an extension of
the notion of the state creating optimum conditions under which
individuals might pursue their individual destinies.
Under the Welfare State there was a shift in political power away from the
traditional aristocratic and middle commercial classes in the direction the
bureaucracy. Unfortunately, the expansion of bureaucratic activity and the
extended complexity of regulation of the ordinary lives of citizens was not
accompanied by any elaborate mechanisms to cope with abuses of power or
failure in duty on the part of bureaucrats and others endowed with this new
political power. Until thirty or so years ago the predominant means of
regulation of the activities of administrators in Malaysia was by traditional
principles known as the principles of 'natural justice'. Of course it should be
said that administrators were subject to the ordinary laws just the same as
other citizens. But they were in an especially privileged position in that the
official positions, which they enjoyed often, meant they were not
responsible for actions officially undertaken. Often the issues, which needed
to be raised, were the basis upon which official and therefore legitimate
decisions were taken on behalf of the state.
(c)
Taxation Law
The growth of public law mentioned above is in large part attributable to
the growth of administrative law.
Taxation is loosely described as the exactions by the state or public agencies

from its citizens for public purposes. The public purpose of taxation is
frequently an aspect, which is ignored, especially in an environment in

which any form of taxation is frequently seen as a penalty imposed on
individuals by an avaricious state apparatus. Taxation is nonetheless the
means whereby the state raises the expenditure necessary to maintain public
or communal goods and services such as roads, defence systems, public
service infrastructures, and so on.
Taxes may take many forms such as shown in Figure 2.10.
Figure 2.10: Form of taxes
They are frequently classified as direct or indirect taxes according to the

manner in which they are imposed. Direct taxes include the direct levies
against income and capital gains derived by citizens. Indirect taxes include
those such as payroll, certain goods and services or sales and consumption
taxes, as well as stamp duties imposed on various property transactions and
council rates.
Figure 2.11: Classification of taxes

(d)
Criminal Law
In theory the state is a public agency which is the guardian of the political
and social system. Particular types of conduct or courses of action on the
part of its citizens may be regarded as sufficiently serious as to justify
prevention or discouragement. Types or courses of conduct so discouraged
will be termed crimes.
There may be a variety of rationales for seeking to prevent particular forms
of conduct. Much will depend upon the nature of the conduct involved.
There is perhaps no general rule forming the basis for the treatment of
particular conduct as crime. The conduct may tend to promote disorder or
civil disobedience. You will recall, from above, which many definitions of
law tend to promote connections between law and order.
There are no doubt other approaches, which might appeal - for example, to
morality, holding that certain conduct is criminal because it is contrary to
justifiable moral principles or that the criminal law exists primarily to
enforce moral standards. For example, it might be argued that there is a law
treating homicide as a crime because there is a general moral principle,
which forbids the taking of human life. Unfortunately, this is not always so
clear, and sometimes the law itself seems to offend this moral principle - for
example, by defining certain forms of homicide as justifiable homicide and
allowing them to take place without criminal sanction.
(e)
International Law
Almost by definition international law is an area of public law because it
involves interaction between the principles of different legal systems or
between the citizens of different legal systems. These can only be mediated
at the public level of the legal system. There are, however, different forms of
international law as shown in Figure 2.12. These are understood most

basically as private international law and public international law. The
former is sometimes referred to as Conflict of Laws. It might be clearer if we
drew out the public nature of this particular area of law.
Figure 2.12: The two types of international law
Conflict of laws is concerned with the means by which the rules of different
legal systems are applied to transactions and dealings between legal
persons who are subject to different legal systems. Certainly what we are
confronted with most commonly in this area are commercial dealings
between the residents or citizens of different states or countries. However, it
can involve dealings or interactions in the widest sense as in areas of:
family law;
liability in tort; and
contract.
In one sense conflict of laws are concerned with the basis upon which
individuals subject themselves and their arrangements to a particular legal
system. To illustrate this issue, refer to the following example.
Suppose that a contract is entered into between a company registered in
Canada but carrying on business in New Zealand and an individual who
was born in Zaire, attended school in France and carries on businesses in
Australia, Germany and Russia. Suppose that the contract was entered
into in the United States of America but that it concerns the purchase of
property located for the time being in Malta. The individual repudiates
the contract by a letter posted from the Canary Islands. The company
takes action in a Canadian Court to enforce the contract. The issue will be
whether the court has determined the issue.
There are a number of legal systems to consider as being of potential application.

The principles relating to contracts, their making and enforcement will vary
considerably and may well are in conflict with one another.
(f)
Environmental Law
It also includes an element of private law in that a number of common law

actions, such as Nuisance, may lend themselves to environmental concerns.
Environmental issues have come to the fore in Malaysian legal debate, as in
most other industralised countries, over the past twenty years and this has
generated concern on the adequacy of legal regulation as a response to the
claimed need for environmental protection and preservation. As
environmental problems take on an increasingly global perspective, there
are a growing number of international treaties to which Malaysia is a
signatory. Their impact is felt when they are enacted into domestic law.
Current legal regulation of the environment tends to be piecemeal. In the
past, it has been left to state governments and local regulatory agencies in
the States. Their nature and composition vary from State to State. The
Federal Constitution does not contain any explicit power for the federal
government to enact uniform legislation dealing with the protection of the
environment on a national basis. The tendency of the Court to read the
federal powers broadly has had the effect of placing potentially very wide
environmental powers in the hands of the federal government, although
they have not been fully exploited. At the other end of the political
spectrum, an increasing reliance is placed on local governments to regulate
the environment in conjunction with their planning role.
The pressure of public concern with environment matters on political
institutions has resulted in the creation of a number of specialised
institutions with specific statutory powers relating to the regulation of the
environment for example, the federal and state Environmental Protection
Agencies.
2.5.3
Types of Private Law
Figure 2.13: Types of private law
(a)
Contract Law
Contract law is concerned with all aspects of the special form of agreement
known as a contract. This includes not only the principles by which one
determines whether or not a contract has been brought into existence, but
also matters such as:
the interpretation of the contract;
examining particular statements from part of the contractual bargain;
whether the contract has been breached by one or more parties;
questions of enforcement of the contract; and
enforceability and discharge of the parties from the contract.
Rather than engaging in discussion regarding ancillary questions, we will be
explaining some of the elements in regards to contract formation, as one goes on.
A contract is a type of legally enforceable agreement. Contract law is an area
of common law, although many features of contracts and their enforcement
are now also regulated by the doctrines of equity. One of the simplest
definitions formulated in respect of a contract is in Todd v Nicol, where it
was said that a contract is:
You should note the key elements in this definition. It is the idea that the contract
is an agreement. Sometimes this is expressed by saying that the parties to a
contract are consensus ad idem (of the same mind).
However, it will be noted that not all agreements made between parties are to be
regarded as contracts. The definition refers to those agreements, which are
intended to be enforceable at law. In other respects, there are certain formalities,
which must be complied with before an agreement can be regarded as a contract.
(b)
Law of Torts
The law of torts is another basic category of the common law. The most
conventional classification of tortious liability is that which distinguishes
wrongs, which are intentional from those which are not. The oldest torts
involve direct wrong-doing such as trespass to the person or trespass to
property, along with other actions such as detinue and conversion, which
are concerned with the rights to recover property. The non-intentional
varieties of torts include, for example, negligence and nuisance.
There has often been some conjecture about the jurisprudential basis for the
miscellaneous torts which are or have been recognised; that is to say,
whether all of the wrongs which we regard as providing some remedy in
tort are to be regarded as stemming from some common group of
principles.
For example, it could be argued that all categories of tortious wrongdoing
are reducible to economic rationales, which are concerned with the
allocation of the risks within society. Others might argue that all torts are
species of wrongdoing, which are based on fundamental moral principles.
One can, for example, read into certain of the judgments of the Malaysian
Courts in recent times an attempt to rationalise certain of the traditional
torts within the guiding principles of negligence; that is to say, to suggest
that all torts are resolvable into questions about the existence and scope of a
duty of care.
Figure 2.14: The two main variety of tort
(c)
Property Law
Property law is concerned with issues such as:
the types of property which the legal system recognises;
the particular interests which can be created in relation to property; and
the manner in which property interests might be dealt with by those

who lay claim to them.
What the law regards as property is an intriguing question, especially in

that it traditionally has regarded certain types of interests as property and
others as personal rights only. For example, certain types of creative activity
will fall within the law of copyright and therefore be recognised as a form of
intellectual property while other things, which are the subject of creative
activity, will not be so recognised.
In all property systems, there is not only diversity as to types of property
but there is also a great diversity as to the types of interest in property,
which can be created.
Thus a person might have a right to use land only for the period of his or her
life (a life interest) or for the life of some other person (an estate pur autre vie).
Alternatively, an individual might have a lease or tenancy interest with respect
to a property, which provides them with an exclusive right to the use and
possession of it for a defined or a recurrent period. If that right were nonexclusive, in the sense that it did not preclude the true owner from having
possession of it as well, then the law would generally regard this as a license,
which is essentially merely a permission to use property. Similarly, there are
mortgage interests and interests by way of lien or charge which is essentially
security interests provided by the owner of property in order to secure a loan.
To add to this complexity, there are also a number of interests which will be
recognised as equitable only in nature. It also recognises some types of
interest as proprietary in nature even where those interests are not regarded
as property at common law.
Hence, in property law, there are legal interests and equitable interests, and
in some respects there are different criteria expounded in each as to the
manner in which these interests might be created. The common law
imposes fairly strict formal requirements for the creation and recognition of
property dealings; for example, certain interests such as interests in land
must be created in writing, while only the completion and registration of
prescribed forms or some other formality can transfer others.
For example, a statute might require that the parties executing a prescribed
form of lease must create leasehold interests in land and have it registered.
In certain circumstances, equity, however, will disregard the parties' failure
to execute the prescribed form of lease and will give effect to the parties'
agreement to create the lease, enforcing it as if the proper legal form had in
fact been followed. The common law generally required strict compliance
with particular obligations arising, for example, under a lease or a contract;
equity would regard substantial performance or compliance as sufficient.
Figure 2.15: Two types of interest in property law
(d)
Succession Law
In Malaysia the law of succession is not part of any law. This area of law is
found in the English law of succession. To some extent it is based on
common law, but in many vital respects it is a creature of statute law as
well. Historically, the English law of succession was influenced by the
feudal system. There was some influence in terms of the jurisdiction of the
courts of ecclesiastical law and through civil law, but now there are more
significant similarities with the jurisdiction of equity.
There were some very significant early differences between the way in which the
principles of succession applied to real estate on the one hand, and to personal
estate on the other. This reflected the importance attached to real estate and the
importance of securing control over land estates as against the free disposal or
exchange of commercial or personal property. The right of a particular group of
control the inheritance to real estate is a significant factor in certain societies or
societies at a particular stage of historical development. It is attributable to
something more than mere territorialism on the part of individuals. It reflects
both the importance of attachment to land as well as the importance of land in an
economic sense within a particular society. We could say that now the central
importance of real estate has diminished somewhat in economic terms without
devaluing the attachment, which is placed on it. But more ability of all forms of
property tends to be of greater significance economically than was once the case.
Historically, the right to dispose of real property by will was not available
to a person until the mid-sixteenth century. There were exceptions where
particular customs permitted the disposal of land by will. Land passed by
primogeniture (that is to the eldest son) and continued to do so after the
collapse of the feudal system. The equitable use, a precursor of the modern
trust, was employed, from the fifteenth century, as an attempt to avoid the
consequences of this system with varying degrees of success.
ACTIVITY 2.5
Evaluate your understanding by answering the following questions:
1.
What is the type of constitution that we have in our Malaysian

Federal Constitution?
2.
Administrative Law is one of the areas of Public Law. True or

False?
3.
Taxes can be classified into two. What are they?
4.
Conflict of Laws also sometimes referred as what?
5.
What is the institution which has the specific statutory power

relating to the regulation of the environment?
6.
Define what is Law of Contract.
7.
What are the examples of the non-intentional varieties of tort?
8.
In property Law there are legal interest and common law interest.
True or False?
9.
Law of Succession can only be found in English law. True or False?
EXERCISE 2.1
State the requirements needed in order for local custom to be recognised as a
source of law.
This topic has discussed the major type of legal systems in the world.
Malaysia being an Islamic state not only adopts the common law system but also
some influences of the Islamic law can be seen here.
The other type of legal system will be the Civil System which is practiced in
European countries and its current and former colonies.

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Topic

Explain the four major types of law in the world;

Differentiate between the three forms of common law; and

Apply the concepts of public and private laws.

TOPIC 2 CLASSIFICATION OF LAW 19

Civil Law System versus Common Law System

Figure 2.1: Three forms of common law

20 TOPIC 2 CLASSIFICATION OF LAW

Common Law System

Civil Law System

Code of Written Law

Figure 2.2: Four major types of law

Two minor types of laws are as indicated in Figure 2.3.

Figure 2.3: The two minor types of laws

TOPIC 2 CLASSIFICATION OF LAW 21

The Shariah (Islamic Law)

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22 TOPIC 2 CLASSIFICATION OF LAW

Ecclesiastical or Canon Law

DIFFERENCE BETWEEN PUBLIC LAW AND

Whenever there is a legal dispute between two parties in their private

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TOPIC 2 CLASSIFICATION OF LAW 23

24 TOPIC 2 CLASSIFICATION OF LAW

Figure 2.4: Areas for public law

TOPIC 2 CLASSIFICATION OF LAW 25

Figure 2.5: Private law areas

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26 TOPIC 2 CLASSIFICATION OF LAW

In law, the notion of legal personality indicates certain characters or identities

TOPIC 2 CLASSIFICATION OF LAW 27

One thing to be acknowledged in relation to both natural individuals and

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28 TOPIC 2 CLASSIFICATION OF LAW

In respect of the state as a legal person, it may be charged in performance of

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TOPIC 2 CLASSIFICATION OF LAW 29

SUBSTANTIAL AND PROCEDURAL LAW

2.4 DIFFERENCES BETWEEN INTERNATIONAL

30 TOPIC 2 CLASSIFICATION OF LAW

United Nation Logo

Again, there is nothing in the international legal system corresponding to a police

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TOPIC 2 CLASSIFICATION OF LAW 31

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32 TOPIC 2 CLASSIFICATION OF LAW

Figure 2.6: Two fundamental treaties of human rights

International Court of Justice

Some regional treaty arrangements (notably the European Community) come

Figure 2.7: International law bodies

TOPIC 2 CLASSIFICATION OF LAW 33

Do you know what is written in Article 5 of the International Convention

A BRIEF SUMMARY OF THE TYPES OF

34 TOPIC 2 CLASSIFICATION OF LAW

TOPIC 2 CLASSIFICATION OF LAW 35

Types of Public Law

(b) administrative law;

(d) criminal law;

international law; and

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36 TOPIC 2 CLASSIFICATION OF LAW

Figure 2.8: Types of public law

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