Chapter i - What is Law . Part III

8/14/2019 Chapter i - What is Law . Part III

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READING....

At first look, we may perceive that readingis….

A boring routine….because it just contain full of texts (neither photos nor far alone to see anycharts, diagrams!)A tiring exercise…because it earns your mind andenergy to get used with the jargons or thelanguage used by the authors!A time-wasted effort…because you never couldunderstand the complicated sentence! You mayuse the time for other beneficial stuffs instead!

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READING …

Well, lets have a second look! You will findreading much more interesting, if you…

Enjoy reading non-legal materials…because lawdoes not stand alone. It relates to social,economic, politics, etc issues..Make dictionaries the greatestcompanion..because English is a foreignlanguage and we must not stop to learn

Put relentless efforts to understand the law andremember learning process is a long time. Weneed to be endurant to leap across the hurdles!

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CHAPTER I - WHAT IS LAW?[PART III]

muhammadnizam awang@alI. facultyof syariahandlaw . islamicscience universityofmalaysia

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DISCUSSION POINTSWhat is legal methodology?Legal methodology skills

How to find law?

How to read law?How to make summary and analysis of law?How to answer law examination?

‘Law’ here is referred to legislations & case laws

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WHAT IS LEGAL METHODOLOGY?

Legal methodology is..Understanding, application andinterpretation of statutesUnderstanding, application andinterpretation law reports

Answering legal problems

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How tofind law?

How to answerlaw exam

How toanalyzeanalyze law

LEGAL METHODOLOGY SKILLS(the know-how)



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Part I:HOW TO FIND LAW



WHAT IS PRIMARY & SECONDARYLEGAL TEXTS?

Primary legal texts – legislations & court judgments (judicial precedents)Secondary legal texts – books, articles

Both primary and secondary legal texts areconsidered as literary sources

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How to find law?

Finding Literarysources

Findinglegislation

Findinglaw reports

Using ComputerInformation

Retrieval System



Books & Journals The main literary sources of law

How to find?

1. Start with library catalogue – where to get?in card index @ computerised form (OPAC/Gemilang)But it only provides for general search terms!

2. Check index of law books published

Law books in print

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(B) FINDING LAW REPORTS

Law reports are cases decided by the courtsand reported in law journals.

Techniques of finding law reportsMay be easily located by its:NameAbbreviated name of the law report (better toremember) &Location in law reports (citation)

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Example of law reports:All England Law Reports (All ER)Indian law Report (ILR)Weekly Law Report

Malayan Law Journal (MLJ)Singaporean Law Reports (SLR)Strait Settlement Law Reports (SSLR)

Reading case laws from actual report (law reports)Shall be your routine exercise!Core component of studying lawComprehend how judges interpret the law passed bylegislature 13



Techqniues of understanding case lawsRead the gist from law booksIdentify parties in dispute and take sideMark with pen – facts, legal issues, counselarguments, ratio decidendi, res judicata,court order.

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Check on the latest cases decided byhigher courts

Previous precedents in lower may befollowed, confirmed, overruled by higher

courtIf it is an appeal case – look into themajority and dissenting judgment (orunanimous decision)Refer to: Current Law Case Citators/

Mallal’s Digest

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(C) FINDING LEGISLATIONS

Sources & Search Techniques?Short titleRegnal year/ Act numberOthers?: Law Reports: Statutes, Halsbury’sStatutes, Current Annotated Law Statutes

Read: Hansards – debate of the Bill (proposedlaw tabled in Parliamentary proceeding) –available on the Parliament of Malaysiawebsite

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(D) USING COMPUTERISEDRETRIEVAL INFORMATION SYSTEM(ONLINE DATABASE)

LexisNexis – www.lexis.com– UK-based service- full text legislation, case reports of mostcases reported in England & Wales, othercommon law jurisdiction (includingM’sia!)Westlaw – US-based service –www.westlaw.com LawnetCurrent Law Journal – www.cljlaw.comMalayan Law Journal – www.mlj.com.my 18

http://www.westlaw.com/


http://www.cljlaw.com/

http://www.mlj.com.my/

http://www.mlj.com.my/

http://www.cljlaw.com/




HOW TO READ STATUTES – SKILLSRERUIRED

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Skills Required

Languageanalysis skills

Diagrammaticmethods

for organisingtexts

Textualmethods for

organising texts

Identification of interrelationship

between provisions

S

KILLS

HOW TO READ STATUTES GO



HOW TO READ STATUTES – GOWITH HIERARCHY OF LEGALSOURCES

Written law – see the pyramid of sources of lawUnwritten law – refer also to s. 3 & 5 of theCivil Law Act 1956

Islamic law – holds different priority of references

Agreed with consensusAgreed without consensus

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HOW TO READ STATUTES- GENERAL LAYOUT

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Parts

Sections

Subsections

Paragraphs

Sub-Paragraphs

Heading

Parts

Title /marginal notes

Schedule



HOW TO READ STATUTES- SAMPLE I

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Act Number

Long title

Short title

Date of RoyalAssent



HOW TO READ STATUTES

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Sectionnumber

Subsectionsnumber

Paragraph

Title

Heading

Parts



HOW TO UNDERSTAND LAW REPORTS- GENERAL LAYOUT

The name of the case The court in which it was heard The name of the judge(s) presiding The hearing date

The catchword The headnotesNotes of cross reference to Halsbury/ Mallal’s DigestA list of cases referred toDetails of the appeal

The names of counsel appearing in the case The judgment (s)

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HOW TO READ LAW REPORTS- SAMPLE I

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PartiesIn dispute

PresidingCourt

Catchwords

Appeal fromlower court



HOW TO READ LAW REPORTS

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Headnote



HOW TO UNDERSTAND LAW REPORTS- SAMPLE I

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Judgment



HOW TO READ LAW REPORTS- SAMPLE II

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Partiesin dispute

Presidingcourt

PresidingJudge

Hearingdate

Citation of the case

Catchwords



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Decision of present court



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Law cases discussionin opinion

Legislation discussion

in opinion



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Judgment

Counsels for parties

Reporter



Part III:

HOW TO SUMMARIZE &ANALYSE LAW

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HOW TO ANALYSECASE LAWS

Never miss doing & improve casenotingWhen the case was decided?Was that a first instance/ appeal case?What are disputed facts?What is/are legal issues involved (presented thetrial/ appellate court – same @ different)?Which statutes, legal principles is applicable?Where is to extract the judicial reasoning givenby the judge?Why/ why not the judge decided in that way?How the judge arrived at such decision?

** The very basic rule – 5W 1H !!**39



How to find and define ratio ??

Long judgment..how to detect ??

Is there any formula to define ratio ?Depend on how the judges interpret the previouscases !!!But remember the rule of judicial/ bindingprecedent !! ( will be discussed in Chapter II –Part II: Unwritten Law)Ratio vs. Obiter dicta

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Remember !!!- the judge may:

ApplyConfirmExtendInterpretDistinguishCriticise

Narrow

ModifyLimitWeakenObliterate; OR

Ignore

THEPRINCIPLES

ESTABLISHEDBY THEEARLIER CASES!!!



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Part IV:

HOW TO ANSWERLAW EXAM?

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2 types of questions

Essay

case study; quotation,Comment&criticism;

short notes

Fictitious-factproblem



ESSAY – OUTLINING YOUR ANSWER

IntroductionDiscussions/ IssuesConclusion

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PROBLEMATIC- CRUCIAL TIPS

Commonly used instruction – ‘Advise’.Problem usually involves sequence of events, so much your answer too!!!!!!

Who you are asked to advise?Cite authority for your propositionsSimplify the legal provision !!!Present significant facts, followed by the

judgment (ratio) !!Always open your minddevelop argument for and against the case

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PROBLEMATIC– OUTLINING YOUR ANSWER

Who are the parties to be advised ?Who are the parties involved?What are the related legal provisions?

What are the relevant cases?How to apply the authorities into the facts of questions?What is your conclusion ?

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FINAL ADVICE

Take time to think andplan your answer

The hardest part –introduction &conclusion ?Work better underpressure?

‘Practice makes

prefect’, but…Nobody is perfect !!!So what should I do??

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REFERENCES

James Holland & Julian Webb. (2006)Learning Legal Rules , 6 th ed., Oxford:Oxford University Press (**HIGHLY RECOMMENDED**)Sharon Hanson (1999) Legal Method, London:

Cavendish Publishing LimitedCottrell, S. (2003), The Study Skills Handbook,2 nd edn. Basingtoke: Palgrave MacmillanClinch, P. (2001), Using a Law Library, 2 edn.,London: Blackstone Presss

Cross, R. (1991), Precedent in English Law, 4th

edn., Oxford: Clarendon PressRobert Lee, SWOT: Constitutional &Administrative Law, London: Financial TrainingPte Ltd. 51

Chapter i - What is Law . Part III

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