WHAT IS LAW?

INTRODUCTION TO LAW 1
LAW012

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WHAT IS LAW?????

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General definition:
Oxford English Dictionary:
The body of enacted or customary rules recognised by
community as binding.

No specific definition on what is LAW many

interpretations of law according to belief, value, custom
etc.
Law is a system of rules where it guides and directs our
activities in much of day to day life (framework of life)
our life is built upon the foundation of legal rules govern
all aspect of social life.
Law is a set of rules that guide our conduct in society and
enforceable by public agency.
GENERAL RULE OF CONDUCT.
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Legal
rules
Regulate
behaviour Law

Designed
Imposed
to give
duties
rights

LAW

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Law as moral
what is right and wrong
morally right = valid law
immoral = invalid law

EXAMPELS??????

LAW
Force coercion

CONSEQUENCES
SANCTIONS OF BREACH

PENALTY

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DEFINITION OF LAW BY
JURISTS
Aristotle

John Jean Jacques

Salmond Rousseau

Roscoe
John Austin
Pound

HLA Hart

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a) Aristotle
Natural Law
Man is a social and political animal thus
there is a need for the law of the proper
authority in the society.
Law act as a tool to regulate the conducts
of society in order for man to live in
harmony with others.
Regulation = combination of human law
and divine law.

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b) Jean Jacques Rousseau
Natural law jurist
Argue that law reflects essentially moral and
unchangeable law of nature.
Rules which permit or prohibit certain
action and must be for the benefit of the
public prescribe the proper behaviour of
human being.
First principle of nature good is to be done
and promoted, and evil is to e avoided.
Any man-made law which is in conflict with
natural law is not a true law. In order for a
law to be part of a legal system it should be in
conformity with current moral principals.

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c) John Austin
Positive law
Define law as law is the command of the sovereign
authority and the command is backed by sanction.
Rules created by ruler who can give penalties if the
rules are broken.
"A body of rules fixed and enforced
by a sovereign political authority."
d) HLA Hart
Positive law
Law is made up of institutional facts like orders and
rules and those are made by people thinking and
acting.
Rules and regulation that come from people or
group of people.

A system of rules, a union of primary and secondary rules.

The Primary rules impose duties on people to behave in
certain ways. Secondary rules, by contrast, pertain to the
primary rules 10
e) Roscoe Pound
Sociological view
Law is an instrument of social engineering to
maximize the fulfillment of interest of the community,
provide smooth running of the machinery of society.
Controlling device used by the upper class on the lower
class.
"An organised and critically controlled body of knowledge both
of legal
institutions and legal precepts and of the legal order, that is, of the
legal ordering of the society
f) John Chipman Gray
Realist view
Realism means relating to the real world, the world as
it actually operates.
Rules of conduct laid down by the person acting as
judicial organ law is what judge declared.

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 What is the need for law?
Why is there law in the society?

What is the
function and
purpose of law?

Can a society
be governed smoothly
without any kind of
law?

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 To deliver
justice.

To bring orderly
To provide
change through
equality and
law and social
uniformity.
reform

FUNCTIONS
OF LAW
To resolve To maintain
conflicts. impartiality

To maintain
social control-
prescribe To maintain law
punishment and and order
remedies in the
event of breach.
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DIFFERENT PERSPECTIVES OF LAW

1. LAW AS CULTURAL EXPRESSIONS

2. LAW AS DIVINE REVEALITION
3. LAW AS AN INSTRUMENTS OF
GOVERMENTS
4. LAW AS LEGAL SYSTEM

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a) Law as a cultural expression

Law and people cannot be isolated from each other since

law is connected to social life of the people and developed
in certain places and in certain communities.
Law as a result of the slow development of society through
centuries.
Savigny (historical jurist) believes that legal system was
part of the culture of a people and it is the expression of
the people - from habit to value, from custom and tradition
to rules and regulation.
Montesquieu states that the law was the product of custom,
local manner and physical environment where a good law
must conformed with the spirit of society.

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 Law as a Cultural
Expression

Adat Pepatih and Chinese and Indian Constitutional law

Adat Temenggung custom
Ex: constitutional
Ex: Harta Ex: Marriage and monarch YDPA is
sepencarian, Land divorce before the the Supreme Head of
law etc coming into force Law the Federation
Reform Marriage and
Divorce Act 1976.

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b) Law as divine revelation
Natural Law jurists believe that all laws are based on
divine revelation or some of the right reason immanent in
the nature of thing Eternal law
Aquinas .the whole community of the universe is
governed by divine reason

Law of the nature or moral laws.

Islam and Christian have their own divine revelation i.e.

the Holy Quran and Bible; functions as Gods decree to its
followers that must be conformed and followed.
Some matters are beyond mans comprehension.

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c) Law as an instrument of government (Positivist)

Law is intimately associated with the nature of the State

because law is an expression of the will of the State i.e the
government.
Example : law introduced by the government must be
abide by the citizens 6% GST.
Marxism-Leninism - Law is used as the only tool of the
State to maintain and safeguard the interest of the
capitalist class, a dominant group in society.

Malcolm Wood claims that law is but one a weapon in

massive political tool- combination of forces, actions and
inactivity. E.g. forces including repression, covert
practices, media manipulation, censorship etc.
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d) Law as a legal system

The legal system consist of Parliament, Judiciary,

Executive, legal profession and etc.

The existence of a legal system is measured via:

Statute, Regulation, Act - Laws in that particular

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

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

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

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

e) Scientific commentaries
Discussion by the eminent jurists also modify and
developed law express their opinions and
commentaries.
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Public Law basically the law which governs the relationship
between individual and state. Public law divided into two categories
constitutional law and criminal law.

Includes:
(i) Constitutional law - lays down the right of individuals in the
state. It deals with questions such as supremacy of Parliament
and rights and citizens. It also covers areas dealing with state
and federal powers.

(i) Criminal law codifies the various offences committed by

individuals against a state. A crime is a wrong against the state
for which punishment is inflicted by the state, with the
proceedings being brought by the Public Prosecutor.

(i) Administrative Law - body of law that governs the activities

of administrative agencies of government. Government agency
action can include rulemaking, adjudication, or the enforcement
of a specific regulatory agenda
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 Private law - it concerned with matters that affect the rights and
duties of individuals amongst themselves. Basically, private or civil
law is intended to give compensation to persons injured, to enable
property to be recovered from wrongdoers, and to enforce
obligations.
Includes:
(i) Contracts based on agreement, it determines when a promise or
a set of promises is legally enforceable. The promises which are to
be enforced form the contract.

(ii) Tort based on obligations imposed by law. A tort is a civil

wrong. It is the breach of a general duty which is imposed by the
law.

(iii) Trust - It is an equitable obligation binding a person (called as

trustee) to deal with property over which he has control for the
benefits of a person ( called as beneficiaries),
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International law body of law which is composed for its
greater part of the principles and rules of conduct which
states feel themselves bound to observe in their relations
with each other.
Includes :
(i) Public International law - law that prevails between
states
(ii) Private International law - conflict of laws, is part of
municipal law, as a result of which country has a different
version of it. Its consist of the rules that guide a judge
when the laws of more than one country affect a case.

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WHAT WOULD HAPPEN IF THERE
WERE NO LAWS???

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