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LEGAL PHILOSOPHY/

JURISPRUDENCE

JUDICIAL AND LEGISLATIVE

PROCESS

ETHICAL PHILOSOPHY

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LEGAL PHILOSOPHY/JURISPRUDENCE

Law means:• those rules/standard for behaviors that are explicitly enforced by society• principles govern and regulate human behavior

Nature of law/legal theories

WHAT ISLAW?

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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

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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.

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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.

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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

law is a mechanism for social control

the larger community, the more complex will be the law

main purpose is to create social

harmony

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UNDERSTANDING THE MEANING OF LAW

Naturallaw

Sociological view

Realist view

Positive law

SCHOOL OF THOUGHTS

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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.

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PRINCIPLES OF NATURE

Good is to be done & promoted &

evil is to be avoided

Law should be justand fair

(moral perspective)

An unjust law is not law

and should not be obeyed.

Any man-made law in violation of natural

law is not true law.

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POSITIVE LAW

A rule from a political superior to a

political inferior habitually obeys,

with sanctions imposed if rule

is broken- John Austin

A command from sovereign

authority in a society

Study of law as it exist in the legal system,

not as it ought to be on

the moral ground; does not

require law to be

moral or fair

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POSITIVIST

•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

Salmond

HartLaw consists of 2 rules:primary rules imposed duties; human in nature to do good thing & to avoid

evilSecondary rules; society’s duties to impose rule – how to set rules, what

punishment, how

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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

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SOCIOLOGICAL VIEW

number of approaches

-more diverse

-law is empirical phenomenon,It is nature can be understood only

When it is viewed in terms ofIts relationship to society

study the effect of law & society on

each other

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KAPER MALINOWSKI

Organized govt, judicial bodies,

administrative machinery, disobedience is

secured by sanctions

In places where no law making bodies etc, people

comply with rules created based on custom/practices (rules of law)

- South Pacific

In modern societies, legal rules are distinguishable

from social and moral values

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NATURE OF ISLAMIC LAWSHARIAH

Command, prohibition,guidance& principles that god has addressedto mankind pertaining

to their conductin this world & the next

Sources of law:Quran (word & command of god)

Sunnah (word of messenger, clarifies, explains the meaning of Quran

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JURISPRUDENCE

‘Jurist’ means law ‘pruden’ means wisdom of law.

Osborn’s Dictionary:‘The science or theory of law.The study of principles of law.The philosophical aspect ofThe knowledge of law. The Knowledge of things, human and divine, the science of just and unjust.’ Developed in

England by Hobbes, Bentham And Austin

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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’.

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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’.

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‘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

Prof. Hari Chand

‘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’.

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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

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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

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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

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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

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ETHICAL PHILOSOPHY & ITS CLASSIFICATION

Theories to distinguish right actions from wrong actions

consequentialist nonconsequentialist

egoism utilitarianism

CONSEQUNETIALIST & NON CONSEQUENTIALIST

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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 interestfor oneself

Utilitarianism – one must take into account everyone affected by the action

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•An act is only right if only it best promote the individual long term interest

•Misconception – doing what a person thinks right for him

EGOISM

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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’.

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NONCONSEQUENTIALIST

Right and wrong is determined not only by the consequences of the act – many factorsExamine every factor relevant to the moral assessment of an action

Kohlberg’s theory Kant’s ethics

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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

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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

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KANT’S ETHIC

nonconsequencialistdo 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)

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JUDICIAL SYSTEM AND LEGISLATIVE PROCESS IN MALAYSIA

MAGISTRATE COURT

SESSIONS COURT

FEDERAL COURT

COURT OF APPEAL

HIGH COURT

HIERARCHY OF THE COURTS

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MAGISTRATE COURT

CRIMINAL CIVIL

1st Class Magistrate

2nd ClassMagistrate

1st Class Magistrate

2nd Class Magistrate

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MAGISTARTE COURT: CRIMINAL JURISDICTION

1st ClassMagistrate

2nd ClassMagistrate

S.87 Subordinate Court ActImpose sentence not exceeding 5 years imprisonment fine not exceeding RM10,000Whipping up to maximum 12 strokes

S 88Can pass a sentence not exceed 6 months imprisonment, fine of RM1000

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MAGISTARTE COURT: CIVIL JURISDICTION

1st ClassMagistrate

2nd ClassMagistrate

S.90 Subordinate Court ActTry all cases where the amount in dispute or value of the subject matter does not exceed RM25000

S. 92Only to try originalactions/suits of a civilnature where the ptf seeks to recover a debt with/without interestnot exceedingRM3000.

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SESSIONS COURT

•All offences otherthan 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

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•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 oradministration or distribution of property.

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HIGH COURT

HC court, Appellate Court and Federal Court are superior court

2 High Courts

High court of Malaya High Court of sabah & sarawak

2 jurisdiction

Court of first instance and appellate court Criminal and civil cases

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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

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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

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CIVIL JURISDICTION

All civil proceedings where the cause of action arosewhere 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 constitution

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COURT OF APPEAL

Appeal in criminal 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

Appeal in civil matters

Hear and determine appeals from Subordinate Courts

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MATTERS NON APPEALABLE

S 68 Court of Judicature Act

Amount of value (exclusive of interest) less than RM250,000

If judgment or order is madeby consent of parties

Judgment or order relates to cost only

Where, by any written law, the judgment or order of HC is expressly declared to be final

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FEDERAL COURT

Court of last resortOriginal jurisdiction

Article 128(1) & (2) Federal Constitution – same as HC

Article 128(1)(b) – dispute between state or between Federation and any state

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APPELLATE JURISDICTION IN CRIMINAL CASES

Can hear and determine any appeal from any decision of

court of appeal

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SOURCES OF MALAYSIAN LAW

State Constitution Custom

Legislation Common lawSubsidiary

legislationSubsidiary legislation

Judicial Precedent

Equity

Written law

English law

Federal Constitution

Muslim lawUnwritten law

Legislation

JUDICIAL SYSTEM & LEGISLATIVE PROCESS IN MALAYSIA

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1. WRITTEN LAW

i. Federal Constitution

Establishes Malaysia as Federation

Constitutional Monarchy

Parliamentary Monarchy

Independent judiciary

Islam is the religion of Federation

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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

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Law made by State Legislative Assembly – Enactment, except Sarawak

Sarawak - Ordinance Federal List – List I

State List – List II

Concurrent List – List III

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iv. Subsidiary Legislation

Different types of laws made by bodies/personsunder 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’.

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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

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JUDICIAL DECISIONS/PRECEDENT

Decisions made by judges previously in similar

situations that have not been overruled/reversed

Are binding on Lower court

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CUSTOMS

Customs of local

inhabitants in Malaysia

Customs relating to family law given legal

force by the court

Eg Adat Perpatih

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MUSLIM LAW

State has power to administer

Muslim law

Syariah ct enforces

Muslim Law

Administration of Muslim LawEnactments

Or Ordinances

Applies to Muslim

only

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CLASSIFICATION OF LAW

PUBLIC LAW INTERNATIONAL LAW

PRIVATE LAW

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PUBLIC LAW (relation between individual and state)

i. constitutional law Rights of

individual in stated

ii. Criminal lawCodifies offences

committed by individualagainst state

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PRIVATE LAW(Rights and duties of individual amongst

themselves)

a. Contractual right

& obligations riseby agreement

b. Tort – breach ofGeneral duty

Imposed by law

c. Trust relationship

between trustee& beneficiary

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INTERNATIONAL LAW(Law which states feel themselves bound to observe

In their relation with each other)

a.Public international law

Law that prevailsbetween states

b. Private international

Law Conflict of law

(rules that guide judgesWhen laws of more than

One country affect aCase)