Law & Engineering Practice ECM 517
Principles of Law
Lesson Learning Outcomes At the conclusion of this lesson, we should be
able to:
Discuss what is Law. Describe the various types of Laws State the sources of Law
What is Law? Law has many definition „The written and unwritten body of rules largely derived from custom and formal enactment which are recognized as binding among those persons who constitute a community or state, so that they will be imposed upon and enforced among those persons by appropriate sanctions …‟ Curzon „ A command set by superior being to an inferior being and enforced by sanctions (punishment)…‟ John Austin
Law is not synonymous with Justice…
What is Law? Law is a system of rules that people are supposed to
follow in a society or a country. To follow the laws of a society is to do legal things. An activity is illegal if it breaks a law or does not follow the laws. In ancient societies, laws were written by leaders, to set out rules on how people can live, work and do business with each other. Today in most countries, laws are written and voted on by groups of elected politicians in a legislature, such as a parliament or congress.
What is Justice? Justice refers to fairness or rightfulness; it is a
moral value to which the law is a means towards its attainment The famous latin legal phrase: “fiat justitia
ruat caelum”
“Let justice be done though the heaven falls”
History of law ď Ž The history of law is closely connected to the development of
human civilisations. Ancient Egyptian law developed in 3000 BC. In 1760 BC King Hammurabi, took ancient Babylonian law and organized it, and then had it chiseled in stone for the public to see in the marketplace. These laws became known as the Codex Hammurabi. ď Ž The Torah from the Old Testament is probably the oldest body
of law. It was written in about 1280 BC. It has moral rules such as the Ten Commandments, that tell people what acts are not permitted.
Law in Malaysia - History • Native legal system (Negrito, Senoi and
Malay Aborigin) • The Malacca Sultanate • The spread of Islam to South East Asia • The extension of British colonial
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Law, State and Constitution • Peninsular, Sabah and Sarawak – 1 political unit
yet different sets of law • 2 common links: • •
Parliament can and does whole country legislation Federal Court is the final court of appeal for the whole country
• Internationally, Malaysia is a state
• Locally, within Malaysia there are 13 states –
each has a government and rules • Malaysian written constitution i.e. Federal Constitution as supreme law 8
Classification of Law Law regulates the citizen in their relations with the State (government) and with one another. An easy way to see how it operates in the legal system is to classify it in the light of its relationship. Law can be classified into Per Content, Per Sources and Per Enforcement.
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Categories of Law
Per Content
Per Sources
Per Enforcement
Substantive Law [rights & legal power]
Written Law
Public Law
Unwritten Law
Private Law
Procedural Law
International Law
Public Law ď Ž Public law regulates the relationship between
the citizen and the state ď Ž It is further divided into areas of law dealing
with different types of matters affecting the citizen-State relationship namely, constitutional law, administrative law and criminal law.
Public Law – 3 types Constitutional law defines the structure of
government and the rights of inviduals under that government. (is used to create laws on how different levels of governments can act and on human rights.)
Administrative law regulates the duties and
exercise of powers by administrative authorities (is used by ordinary citizens who want to challenge decisions made by governments.)
Criminal law (familiar to most people) concerns
those acts or omissions which are offences against the State and for which offender is liable to be tried and, if found guilty , punished. (is used by the government to prosecute and punish people who break laws.)
Private Law ď Ž Private law (sometimes referred to as civil
law) regulates relationship between citizens and may further divided according to the way of how it regulates the relationship. ď Ž It includes contract, tort, trust, land, family, company, partnership, agency and commercial law. ď Ž Legal action is normally undertaken at the initiative of the individual
Types of Private Law Contract law sets rules on agreements to buy and
sell items and services. Property law states the rights and obligations that a
person has when they buy, sell, or rent homes and buildings. Trust law sets out the rules for money that is put into
an investment, such as pension funds that people save up for their retirement. Tort law helps people to make claims for
compensation (repayment) when someone hurts them or hurts their property.
Private Law The party commencing an action is referred
to as “the plaintiff” and the other party being sued is “the defendant”. The action is called civil proceeding and the procedure governing it is quite different from criminal proceeding which is a prosecution of an offender for an alleged offence. The law of contract is the most important because it encompasses all sorts of commercial and non-commercial transactions.
The Common Law Refers to law laid down by judges „judge -made laws”
sitting in the Superior Courts as distinct from statute law enacted by the legislation It comes from England and it became part of almost every country that once belonged to the British Empire, except Scotland, and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, when King John was forced by his barons to sign a document called the Magna Carta, which limited his authority to pass laws. Over time it developed solid principles.
Religious Law ď Ž Religious law is law based on religious beliefs
or books. Examples include the Jewish Halakha, Islamic Sharia, and Christian Canon law. Until 1700s, Sharia law was the main legal system throughout the Muslim world. In some Muslim countries such as Saudi Arabia and Iran, the whole legal systems still base their law in Sharia law.
Religious Law - Islamic Law Applicable only to Muslims and administered
in the Syariah Courts. The power to administer Islamic law is primarily that of the States (except KLWP and Labuan). The Syariah Courts possess civil jurisdiction in proceedings between parties who are muslims, and limited criminal jurisdiction over offences by muslims against the religion such as not fasting in the month of Ramadan, alcohol consumption and others
Native Law Personal law applicable to the natives of
Sabah and Sarawak Natives are the indigenous people of these two states and the legal definition of „Native‟ is found in the Federal Constitution and State law
Sources of Law The main sources of Malaysian law are: Federal Constitution 13 Constitution of the States Federal laws made by Parliament State laws made by State Assemblies Federal and state subsidiary legislation Judicial decisions of the Superior Courts often referred to as „common law‟ or „judgemade law‟
Sources of Law – contd.. Principles of English law suitable to local
circumstances Islamic law which is applicable to Muslims
Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Written Federal Constitution • Supreme law of the country • Under a power of Federal and State Governments • Outline individual rights
• Can be changed by a 2/3 majority of the total
legislature • Comprises Articles (provides items e.g. name of federation, religion, liberties (freedom), citizenship, election, judiciary power etc)
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Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Written Legislation • Laws enacted by a body constituted for this purpose • In Malaysia, laws are legislated by Parliament • Laws enacted before 1957 are known as Ordinances,
after 1957 are Acts • Laws enacted by State Legislative Assemblies (Dewan Undangan Negeri) are called Enactments (Sarawak – Ordinances) • Used as a mean of repealing, amending, enacting or codifying the law
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Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Written Regulations/Sublegislations • Any proclamation, regulation, order,
notification, by-law or other instrument made under any ordinance, enactment or lawful authority and having legislative effect • Detail the Parliament and State legislature to govern everyday matter
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How Malaysian Laws Are Made?
Dewan Rakyat - House of Representative - Lower house
Dewan Negara/Senate - Upper house
Parliament - Make laws by the passing of Bills in both Houses
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Bills (rang undangundang)
Private Bills
Affect particular person, group or association
Introduced by any member of legislature or minister or deputy minister
Hybrid Bills
Government Bills
Affect individual rights
Government policy introduced by minister
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Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Unwritten English Law • Part of Malaysian law • Sources are English common law and rules of
equity • Earlier – application without modification • Nowadays – subjects to: • •
Absence of local statutes (written law passed by a legislative body) on particular subjects Suitability to local context
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Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Unwritten Judicial Decisions • Found in the judicial decisions of: • High Court • Court of Appeal • Federal Court • Supreme Court • Judicial Committee of Privy Court (Jawatankuasa Kehakiman) • Advantages: • Practical based on actual experiences • Flexible compared to law enacted by Parliament • Rich in legal detail than statue law (written enactment of a legislative authority that governs a state, city or country) • Cases should be treated in a similar fashion by the courts to ensure justice • Disadvantages: • Greater research needed • Difficult to tell the statement in a judgment is ratio or dicta
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Unwritten Judicial Decisions • Doctrine of „Stare Decisis‟/judicial precedent • Sources of law where past decisions of the
judges create law for future judges to follow • Also known as case law, which is one of the primary sources of English law and Malaysian law • Create certainty of outcome for future case and scope for the common law to be modified and updated • Way of operation:
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The impotance… Its create certainty of outcome for future case and scope for the
common law to be modified and updated. Legal profession can give more helpful advice regarding the law to
their clients, including advice as to the merits of the case and, just as importantly, advice regarding the outcome. This is essential because issues of costs are likely to be involved and
any question of whether to continue with a court action may have to be balanced with the chances of success and the probable costs involved. The doctrine of precedent therefore helps with questions of
predictability as judicial precedent is rigidly followed. This certainty leads to consistency and fairness in that like cases are
dealt with in a similar way.
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Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Unwritten Customary Laws • West Malaysia Customary Laws • Undang-Undang Adat Melayu – tradition
elements: • •
Undang-Undang Adat Melayu Purba i.e. Adat Pepatih and Adat Temenggung Undang-Undang Hindu
• Dharmasutra - manuals of human conduct
that form the earliest source of Hindu law • Dharmasastra - poetic 37
Sources of Malaysian Law
Written
Federal and State Constitution
Legislations
Unwritten
Regulations/Sublegislations
Principle English Law
Judicial decisions
Customary law/way of life
Islamic law
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Unwritten Islamic Law • Applied to Muslim, regardless of race • Extends to family matters and inheritance • Administrates by Syariah Courts (Islamic
courts) at state and in Federal Territories of KL and Labuan
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Organisation of Civil Court Hear and determine by Ruler of YDPA
Syariah Court Syariah Court
Native Court
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The Malaysian Judiciary • Federal Court • • • •
To the exclusion of any other court Determine validity of law made by Parliament/State Exclusive jurisdiction to determine dispute between States and Federal Ultimate court in civil, criminal and constitutional matters
• Court of Appeal •
With appellate jurisdiction to hear civil and criminal cases of High or Session Courts
• High Court • •
Criminal – cases which carry death penalty Civil – cases of divorce, admiralty (maritime law), bankruptcy and company matter
• Session Court • •
Criminal – all offences other than offences punishable with death Civil Cases
• Magistrates‟ Court • •
Criminal cases Civil cases
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Rule of Law The Rule of Law is the law that says that Government can only legally use its power in the way the government and the people agree. It limits the powers a Government has, as agreed in a country's
constitution. The Rule of Law prevents dictatorship and protects the rights of the
people. When leaders enforce the legal code honestly, even on themselves and
their friends, this is an example of the rule of law being followed. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350
BC, "is better than the rule of any individual."
Professional Engineers and The Law ď Ž Engineers like other professional people, have a duty
to acquire a working knowledge of the law as it affects their professional work . ď Ž In the case of an engineer the relevant fields of law
are notably those of contract, especially the standard forms of building contract, and the various statutory regulations, such as the Building Regulations, planning law, health and safety law, procurement law, and the like
Professional Engineers and The Law Although, an engineer is not expected to know all the
law in depth, but he is expected to ensure that his client does not suffer from the absence of his own legal knowledge. He is expected to know enough law and shall be aware of the circumstances in which specialist legal advice is needed. He should then advise his client to obtain legal advice. Alternatively, he should himself instruct a barrister directly.
Professional Engineers and The Law An engineer will also want to know about the
areas of law which affect him or her personally.
When can he be sued? How can he sue for his fees? When is copyright in his design protected? How should he insure? What is the legal relationship between him and his employer, or between him and his employees?