Transcript natural law

1
LEGAL
PHILOSOPHY/
JURISPRUDENCE
ETHICAL
PHILOSOPHY
JUDICIAL AND
LEGISLATIVE
PROCESS
2
LEGAL PHILOSOPHY/JURISPRUDENCE
Nature of law/legal theories
WHAT IS
LAW?
Law means:
• those rules/standard for
behaviors that are explicitly
enforced by society
• principles govern and regulate
human behavior
3
BLACK’S LAW DICTIONARY
•‘that which is laid down, ordained or established.
• A rule of method according to which phenomena
or actions co exist or follow one another
•law refers to a result regardless of the process
used to bring it about
4
WEBSTER’S 3RD NEW INT. DICTIONARY
•A binding custom/practice of community.
•A rule or mode of conduct or action that is prescribed
or formality recognized as binding by supreme
controlling authority or made obligatory by a sanction
made.
5
ROLE OF LAW
WHY NEED LAW?
Man is by nature a social animal,
desiring companionship of his fellows
and in primitive times he tended to
form tribes, groups or societies either
for self reservation or by reason of
social instinct.
6
If society is to
continue, some form of
social order is
necessary, therefore
rules or laws are
drown up to ensure
that members of
society may live and
work
main purpose is to
create social
harmony
the larger
community, the
more complex
will be the law
law is a
mechanism for
social control
7
UNDERSTANDING THE MEANING OF LAW
Natural
law
Positive
law
SCHOOL OF THOUGHTS
Realist view
Sociological
view
8
NATURAL LAW
Law is derived from a higher
ordained by divine
 Based on the principles of
natural law i.e there are moral
principles prescribed by nature,
which can be discovered by man.
9
PRINCIPLES OF NATURE
Good is to be done
& promoted &
evil is to be avoided
Any man-made law
in violation of natural
law is not
true law.
Law should be just
and fair
(moral perspective)
An unjust law is
not law
and should not be
obeyed.
10
POSITIVE LAW
A rule from a
political superior to a
political inferior
habitually obeys,
with sanctions
imposed if rule
is broken
- John Austin
Study of law as
it exist in the
legal system,
not as it
A command from ought to be on
the moral
sovereign
ground;
authority in
does not
a society
require law to
be
moral or fair
11
POSITIVIST
Salmond
•The body of principles recognized
and applied by the state in the
administration of justice.
• superior order, enforceable in court
of law to secure justice
Law consists of 2 rules:
primary rules imposed duties; human in
nature to do good thing & to avoid evil
Secondary rules; society’s duties to
impose rule – how to set rules, what
punishment, how
Hart
12
REALIST VIEW
The world as it actually operates,
carried out & enforced rather
than series of rules contained in
statute.
Rule of conduct laid down
by persons acting as judicial
organ of the state.Law is
what the judges declare
13
SOCIOLOGICAL VIEW
number of
approaches
-more diverse
study the effect of
law & society on
each other
-law is empirical phenomenon,
It is nature can be understood only
When it is viewed in terms of
Its relationship to society
14
KAPER MALINOWSKI
In modern societies,
legal rules are
distinguishable
from social
and moral values
In places where no law
making bodies etc, people
comply with rules
created based on custom/
practices (rules of law)
- South Pacific 15
NATURE OF ISLAMIC LAW
SHARIAH
Command, prohibition,
guidance& principles
that god has addressed
to mankind pertaining
to their conduct
in this world & the next
Sources of law:
Quran (word & command of god)
Sunnah (word of messenger,
clarifies, explains the meaning of Quran
16
JURISPRUDENCE
‘Jurist’ means law
‘pruden’ means
wisdom of law.
Developed in
England by
Hobbes,
Bentham
And Austin
Osborn’s Dictionary:
‘The science or theory of law.
The study of principles of law.
The philosophical aspect of
The knowledge of law.
The Knowledge of things,
human and divine, the science
of just and unjust.’
17
Lloyds: ‘It concerned with the rule-governed
action, with the activities of officials such as
judges and with relationship between them and
the population of a given society’.
-
Stone: ‘ It is the lawyers examination of the
percepts, ideals and techniques of the law in the
light derived from the present knowledge in
disciplines other than the law’.
18
Prof. Hari
Chand
‘Jurisprudence is an attempt to study
the nature of laws, their techniques,
development and achievement;
It is to trace a law of laws, a law behind
the laws’.
-eg. caveat emptor, nemo dat quod non
habet, res ipsa liquitor
‘If we used the term science in its widest permissible
sense as including the systematized knowledge of any
subject of intellectual inquiry, we may define
jurisprudence as the science of civil law’.
19
Involve study of general theoretical question about
Nature of law
& legal system
Social nature
of law
Relate with other discipline eg medical
man study diseases and remedies, jurists
study defenses & remedies in law
20
ISLAMIC JURISPRUDENCE
Fiqh (jurisprudence) – the law itself
Usul fiqh (science of jurisprudence)
– the study how to derive
the hukum
Interest (riba) is
prohibited
– oppression
– disastrous the
society
Liquor
– cause to lose self control
Cause and effect
21
If the effect/purpose is good, the way it is done is also
will be taken into account to determine the validity of
the act (ethical concept)
Stealing for donation
22
WHY STUDY JURISPRUDENCE?
‘Jurisprudence offers an overall
view of the law, a unified picture in which the
nature of legal institutions and theories
becomes more comprehensible.’
‘Jurisprudence is a ’map’of the law
which presents it as ‘A system or
organic
whole.’
Austin
23
ETHICAL PHILOSOPHY & ITS CLASSIFICATION
CONSEQUNETIALIST & NON CONSEQUENTIALIST
Theories to distinguish right actions from wrong actions
consequentialist
egoism
nonconsequentialist
utilitarianism
24
CONSEQUENTIALIST
The moral rightness of an action is determined solely
by its result.
If it is good, the act is right, vice versa
Q: Consequence for whom?
only for oneself or for
everyone affected?
Egoism – suggest self
interest
for oneself
Utilitarianism – one must
take into account everyone
affected by the action
25
EGOISM
•An act is only right if only it
best promote the individual
long term interest
•Misconception – doing what
a person thinks right for him
26
UTILITARIANISM
•Defines an action as morally right & suggest one must
take into account everyone affected by the action
•Examines the consequneces of a given action
•Defines an action as morally right & ethical if it
produces the greatest amount of good for the greatest
number of people
•Good is determined by the maximizing the good
cosequneces of an action & minimizing bad ones
•Always act to produce the greatest possible balance of
good over bad for everyone affected by our action
•Bentham – ‘interest of community are simply the sum
of interest of its members’.
27
NONCONSEQUENTIALIST
Right and wrong is determined not
only by the consequences of the act
– many factors
Examine every factor relevant to the moral
assessment of an action
Kohlberg’s theory
Kant’s ethics
28
KOLHBERG’S THEORY
Pre conventional level – 2 levels of moral devp.
1st – react to
punishment
2nd – reflect desire to
receive a reward
Conventional level
Good boy and nice girl morality stage – accept
morality that learn from others
29
Post conventional – self accepted moral principles
1 st stage – contract &
individual rights
-speak and understand
morality based on
rights of individual
2nd stage-able to give
reason/rational
defence of the moral
principles that guide
our actions
30
KANT’S ETHIC
nonconsequencialist
do not have to know the likely
result in order to know that it is immoral
Moral rule can be known as a result of reason alone
(reasoning)
Eg: Breaking promise (because of inherent character
of the act, not because it might hurt other’s feeling)
31
JUDICIAL SYSTEM AND LEGISLATIVE
PROCESS IN MALAYSIA
HIERARCHY OF THE COURTS
FEDERAL COURT
COURT OF APPEAL
HIGH COURT
SESSIONS COURT
MAGISTRATE COURT
32
MAGISTRATE COURT
CRIMINAL
1st Class
Magistrate
2nd Class
Magistrate
CIVIL
1st Class
Magistrate
2nd Class
Magistrate
33
MAGISTARTE COURT: CRIMINAL
JURISDICTION
1st Class
Magistrate
S.87 Subordinate Court Act
Impose sentence not exceeding
5 years imprisonment
 fine not exceeding RM10,000
Whipping up to maximum 12
strokes
2nd Class
Magistrate
S 88
Can pass a
sentence not exceed
6 months
imprisonment,
fine of RM1000
34
MAGISTARTE COURT: CIVIL
JURISDICTION
1st Class
Magistrate
S.90 Subordinate Court Act
Try all cases where the amount
in dispute or value of the
subject matter does not exceed
RM25000
2nd Class
Magistrate
S. 92
Only to try original
actions/suits of a civil
nature where the ptf
seeks to recover a debt
with/without interest
not exceedingRM3000.
35
SESSIONS COURT
•All offences other
than offences
punishable by death
penalty
•S 64 – cannot impose death
sentence
•S 65: unlimited jurisdiction to try all actions and
suits of a civil nature in respect of motor vehicle,
accidents, landlords and tenants and distress
36
•All civil actions where the
amount in dispute or value of the
subject or the value of the subject
matter does not exceed
RM250,000
•Exceptions (no jurisdiction)
- with respect to applications for specific
performance or rescission of contracts,
injunctions, enforcement of trust, declaration of
decrees and revocation of grants of
representation of the estates of deceased persons or
administration or distribution of property.
37
HIGH COURT
HC court, Appellate Court and Federal Court are
superior court
2 High Courts
High Court of
sabah & sarawak
High court of Malaya
2 jurisdiction
Court of first instance
and appellate court
Criminal and civil cases
38
CRIMINAL JURISDICTION
All offences committed within its local jurisdiction or on
the high seas on board any ship or aircraft registered in
Malaysia, or by any citizen or permanent resident, or by
any person on the high Seas where the offence is piracy
by the law of nations
Offences serious in nature – death sentence
-murder – S 302 Penal Code
- drug trafficking – s 39B Dangerous Drug Act
- Offences under Firearms act
39
S 26 Courts of Judicature Act
High court has power to hear appeals from
Subordinate Court according to any law for the time
being in force within the territorial jurisdiction of
the HC
HC also has reversionary powers with respect to
criminal proceedings in Subordinate Courts
40
CIVIL JURISDICTION
All civil proceedings where the cause of action arose
where the defendants/resides has place of
business/facts on which the proceeding are
based/in dispute within the local jurisdiction of the
court
S 27 – appellate
civil jurisdiction
Hear appeals from
subordinate courts
Examine record of
proceeding transmitted by
Subordinate Courts on any
question which arises
as to the effect of any
provision of the constitution41
COURT OF APPEAL
Appeal in criminal matters
Appeal in civil matters
Hear and determine any
appeals against any decision
made by HC
either in the existence of
appellate reversionary
jurisdiction decided
in the Subordinate Courts
Hear and determine
appeals from
Subordinate Courts
42
MATTERS NON APPEALABLE
Amount of
value
(exclusive of
interest) less
than
RM250,000
Judgment or order
relates to cost
only
S 68 Court of
Judicature Act
If judgment
or order is
made
by consent of
parties
Where, by any written
law, the judgment or
order of HC is
expressly declared to be
final
43
FEDERAL COURT
Court of last resort
Article 128(1) & (2)
Federal Constitution –
same as HC
Original jurisdiction
Article 128(1)(b) –
dispute between
state or between
Federation and any
state
44
APPELLATE JURISDICTION IN
CRIMINAL CASES
Can hear and
determine any appeal
from any decision of
court of
appeal
45
JUDICIAL SYSTEM & LEGISLATIVE PROCESS IN
MALAYSIA
SOURCES OF MALAYSIAN LAW
Written law
Unwritten law Muslim law
Federal
Constitution
State
Constitution
English
law
Legislation
Legislation
Subsidiary
legislation
Subsidiary
legislation
Common
law
Judicial
Custom
Precedent
Equity
46
1. WRITTEN LAW
i. Federal Constitution
Establishes
Malaysia as
Federation
Constitutional
Monarchy
Independent
judiciary
Parliamentary
Monarchy
Islam is the
religion of
Federation
47
ii. State Constitution
 every state has its
own constitution
regulating the govt
of that state
iii. Legislation
law legislated at federal or
state level
(Parliament or State
Legislative Assembly)
 Law enacted Parliament
before independence
- Ordinance
 After independence - Act
48
Law made by State Legislative Assembly –
Enactment, except Sarawak
Sarawak - Ordinance
Federal List – List I
State List – List II
Concurrent List – List III
49
iv. Subsidiary Legislation
Different types of laws made by bodies/persons
under power conferred on them by Acts of
Parliament/Enactments of State Assembly.
Supplement the Parliament and state legislature
 Subsidiary legislation made in contravention of
Constitution or parent Act is void
S 3 Interpretation Act 1967
‘any proclamation, rule, regulation, order,
notification, by law or other instrument made
under any ordinances, enactment or other lawful
authority and having legislative effect’.
50
2. UNWRITTEN LAW
English Law
S 3(1) Civil Law Act 1956
•Pen. Malaysia to apply Common Law & Equity
as administered in England on 1 st Dec 1956
•Sabah – as in England on 1st dec 1951
•Sarawak – as in England on 12 Dec 1949
•Applied if lacuna in local status
• Only if the law is suited to local
circumstances
51
JUDICIAL DECISIONS/PRECEDENT
Decisions made by judges
previously in similar
situations that have not been
overruled/reversed
Are binding on
Lower court
52
CUSTOMS
Customs of
local
inhabitants in
Malaysia
Customs relating to
family law given legal
force by the court
Eg Adat Perpatih
53
State has power to
administer
Muslim law
Applies to
Muslim
only
MUSLIM LAW
Syariah ct
enforces
Muslim Law
Administration of
Muslim Law
Enactments
Or Ordinances
54
CLASSIFICATION OF LAW
INTERNATIONAL
LAW
PUBLIC LAW
PRIVATE LAW
55
PUBLIC LAW
(relation between individual and state)
i. constitutional law
Rights of
individual in stated
ii. Criminal law
Codifies offences
committed
by individual
against state
56
PRIVATE LAW
(Rights and duties of individual amongst
themselves)
a. Contractual
right
& obligations rise
by agreement
b. Tort – breach of
General duty
Imposed by law
c. Trust
relationship
between trustee
& beneficiary
57
INTERNATIONAL LAW
(Law which states feel themselves bound to observe
In their relation with each other)
a.Public international
law
Law that prevails
between states
b. Private
international
Law
Conflict of law
(rules that guide judges
When laws of more than
One country affect a
Case)
58