Post on 29-Dec-2015
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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)