05 BDAU2103 T1 (1).docx

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▶ Nature of Law
▶ INTRODUCTION
Laws and legal systems are very important in any civilisation and society. In
modern times, one cannot imagine a society without laws and a legal system. Laws
are not only important to maintain an orderly social life but they are also essential
for the very existence of humankind. Hence, it is important for everyone to
understand its meaning, nature and characteristics.
Figure 1.1: Excerpt from Edmund BurkeÊs speech on „Conciliation with America‰ in 1775
Source: http://izquotes.com
To
By the end of this topic, you should be able to:
Explain the nature of law;
Differentiate the relationship between custom, morality and law;
Evaluate the link between law, the state and the constitution; and
Summarise the need for laws.

2 ▶ TOPIC 1 NATURE OF LAW
DEFINITION OF LAW
The more abstract something is, the more difficult it is to define. The concept of
law is no exception. From very early on in time, professionals and lay thinkers
have attempted to define the law. However, centuries later, they are still far from
arriving at an agreement. Despite this, we find that the law is a relatively concrete
matter, which can be isolated and analysed, and shares common nature and
characteristics.
John Locke (1632-1704), an English philosopher and influential writer who was
known as the „Father of liberalism‰ stated in his book, section 202 of chapter XVIII,
Book II of the Two Treaties of Government that:
This famous quotation simply implies that all people are subject to the law and no
one is above the law, even if a person has authority in a society. This is so even
rulers and leaders are also under the „sovereignty of the law‰. Locke defines
tyranny as "the exercise of power beyond right.‰ A just leader is bound by the laws
of the legislative and works for the people, whereas a tyrant breaks the laws and
acts on his own behalf. The equality of all people under the law is a lynchpin of
the modern notion of the rule of law in a democratic state. As such, „law‰ is an
important system or set of rules to regulate the individuals to live in a peaceful
society.
In olden English, the word „law‰ originated from the Norwegian word lagu
meaning law, ordinance, rule or regulation. The plural for the collective lagu is
lag, which means layer, measure or stroke, or in a literal sense, it means something
laid down or fixed. Over the centuries, there have been numerous attempts to
produce a universally acceptable definition of law. Let us look at the definitions
by various known historians, philosophers and leaders in Table 1.1.
1.1
ACTIVITY 1.1
Before you proceed further, consider the following question.
Based on your general understanding of the law, how would you
interpret the „law‰? To what extent is the law important in our lives?
„Wherever law ends, tyranny begins.‰ (Second Treatise of Government, sec.
202.)

TOPIC 1 NATURE OF LAW ◀ 3
Table 1.1: Various Definitions of Law
Source Definition of Law
Cicero (First
century BCE)
True law is right reason in agreement with nature: it is of universal
application unchanging and everlasting. It summons to duty by its
commands and averts from wrongdoing by its prohibitions. And it
does not lay its command or prohibitions upon good men in vain,
though neither have any effect on the wicked. It is a sin to try to
alter this law, nor is it allowable to attempt to repeal any part of it,
and it is impossible to abolish it entirely. We cannot be freed from
its obligations by senate or people.
Blackstone (1769) A rule of civil conduct prescribed by the supreme power in a State
and addressed to the persons who are the subjects of that authority.
Karl Marx (1848) Rules established by men who have control of organised power and
which are enforced against the recalcitrant by lash, prison or even
murder.
Tolstoy (1900) Law is an instrument by which a capitalist society ensures the
suppression of the masses and protection of the wealthy class.
As you can clearly see, these definitions suggest that there are no clear agreements
on what is „law‰. There is no assigned meaning to it. Each writer has his own view
and each view is based on the writer's own moral, political, religious and ethical
point of view and the influence of the society in which they lived. Persons who
explain the term „law‰ from the same point of view, form a school of jurisprudence
or thought. While there is lack of agreement on a precise definition, two common
themes can be identified from the definitions provided in Table 1.1 are:
(a) The idea of control by humans; and
(b) The idea of human conduct being regulated by a superior authority or power
(usually the state).
While it is difficult to provide a precise definition of law, a useful general definition
could be:

The rules have been established by the people through their parliamentary
representatives (in the form of statute law) and by the judges in our courts (in the
form of common law) and are legally enforceable. They set standards of conduct
between an individual and other individuals, and between individuals and the
government.
DISTINCTION BETWEEN RULES AND LAWS
While it may be said that the law is a set of rules, it does not automatically follow
that all rules are or will be laws. Many of the rules that govern our daily behaviours
are not laws, for example, rules in a competitive game, rules that regulate social
behaviours and rules within a family.
In determining whether a rule is also a law, it is necessary to consider two major
questions as shown in Figure 1.2.
Figure 1.2: Questions is determine if a rule is also a law
1.2
ACTIVITY 1.2
We have been taught to respect the law since we were in primary school.
Our lives are governed by the law. At the same time, we are also asked
to obey and follow rules wherever we go, in whatever we do. Laws and
rules guide our actions and behaviour. Do you know the difference(s)
between rules and laws?
Share your answer with your coursemates in myINSPIRE online forum.

RELATIONSHIP BETWEEN JUSTICE AND
THE LAW
A concept that is closely identified with the law is justice. Similar to the law, the
term „justice‰ is difficult to define. The concept of justice can be used in a number
of different contexts as shown in Figure 1.3.
Figure 1.3: Different contexts of justice
The application of the different contexts of justice may or may not coincide,
depending on the situations and the contexts in which they are used. For example,
the fine for parking in a No Parking Zone is the same regardless if one is rich or
poor. The fine for offenders may be considered as legally and morally just because
everyone is equal in the eyes of the law. However, a rich person can more easily
afford to pay the fine than a poor person. Thus, the question then arises as to
whether the fine is morally just.
1.3

Unfortunately, the meaning of the word does not make the task of defining the
concept of justice any easier. Fortunately, there is a common agreement to the
terms „fair‰ and „right‰. As times passes, so do the attitudes and values of society
and the individuals within that society. For example, cohabitation by a couple of
different genders today is not frowned upon by society like how it used to be in
the past. The view also depends on which society is being referred to. In the
example or context, it is the western society. Figure 1.4 provides the definition of
justice from Lord Denning, one of England's greatest judges.
Figure 1.4: Definition of justice by Lord Denning
Source: Morris and Birkbeck College (1954)
The law embodies what society believes is right or fair. Justice in our society means
that everyone is entitled to a fair trial under a set of rules that applies equally to
both sides in an open court. However, it is unrealistic to suggest that our legal
system can be absolutely foolproof.
Our legal system recognises its fallibility in a number of ways:
(a) A court hierarchy allows a person, within certain defined limitations, to
appeal to a higher court if it appears that there has been a miscarriage of
justice or an error in law; and
(b) Writ of habeas corpus, where the court decides on the legality of a personÊs
imprisonment when he is being held for no stated cause.
Based on the legal system that was inherited from England, Malaysian society has
developed a reasonably fair system of rights and duties. In the event that a person
has his rights infringed, he may seek relief through the law. This may take the form
of a civil action whereby he may seek remedy in the form of monetary
compensation (or damages) from the other party. The remedy may also be by way
of a complaint to the police, resulting in a criminal prosecution against the other
party and perhaps conviction by the courts. It may even be an action according to
both civil and criminal laws.

ACTIVITY 1.4
Can you imagine what will happen if there are no laws to govern
our lives? Can you anticipate the effects of lawlessness on our
society, economy and country? A point to ponder.
Share your thoughts with your coursemates in myINSPIRE.
Determine whether these statements constitute laws or rules.
Tick () where appropriate.
No. Statement Law Rule
1. No smoking in public toilets, hospitals and petrol
stations.
2. Do not drink alcohol and drive.
3. Renew your driving licence.
4. You must wear the school uniform whenever you
go to school.
5. You must not make noise when you are in the
mosque.
6. You cannot steal goods in a shop.
7. You must pay membership fees before becoming a
member of the club.

CUSTOM, MORALITY AND LAW
Whenever we come across the word „custom‰, we are likely to be reminded of the
older generations whereby their lives were governed by customs and traditions.
However, when we focus our attention on „morality‰, religion comes to mind
because it is our religions that taught us what moral values are. Law, on the other
hand, not only governs our individual lives but also the society, economy and
country. All are important aspects in our lives. Do you know the relationship
between custom, morality and law?
Often, these three concepts and beliefs are generalised and codified in the culture
of a group of people and serve to regulate the behaviour of its members.
Conformity to such codification may also be referred to as morality. The group
usually depends on the widespread conformity to such codes for its continued
existence. Moral refers to a particular principle (usually informal and general with
respect to a moral principle) that is applied in a given human situation.
The adage „you cannot legislate morality‰ is false given that every statute
mandates or restrains some form of acts in order to preserve a moral value. For
example, the law requires drivers to obtain a licence as a means of protecting
human lives while on the road. Littering is illegal because we value the act and the
result of conserving a beautiful and safe environment.
However, in another sense, it is true that morality cannot always be subject to the
law. Nor should it be. A society in which every good deed or noble act is mandated
by law would be considered a tyranny. Meaningful moral action requires
reflection, choice and sometimes even failure in order for people to learn and grow.
Morality is endowed with yet another meaning when we say „moral philosophy‰.
However, what we really mean by that is in reference to ethics or ethical theory.
Making this distinction will be helpful since we know that many people have
perceptions about right and wrong without ever determining why but instead
merely accepting it as it is. To most psychologists, conscience is an overlay of
impressions and prohibitions of musts, ought to, dos and donÊts which society has
imprinted on the sensibilities of people. As such, there is no standard of right and
wrong except for what people think and are taught to believe.
Law is not the beginning nor is it the end when it comes to ethics. Our moral ideas
often shape the character of our laws. Criticisms of laws and proposals for change
in our laws are often based on shared moral ideals that have not yet been achieved.
Now let us look at Figure 1.5.
1.4

Figure 1.5: Custom, morality and law
Source: Diamond (1981) & Bonsignore (1994)
It has been suggested that the common law is the crystallisation of ancient common
customs and the judiciary in the middle ages through their historic travels. In
certain circumstances, the parties may assert the existence of customary practices
in order to support their case.
In Malaysia, the law is defined under Article 160(2) of the Federal Constitution,
Section 3 of the Interpretation Acts 1948 and 1967 as well as the Interpretation and
General Clauses Ordinance 1948. It includes the written law and the common law
in so far as the law is in operation in the Federation or any part thereof, and any
customs or usages having the force of law in the Federation or any part thereof.
Written law in Malaysia includes the Federal Constitution, State Constitution of
all States and legislations enacted by the Parliament at the federal level as well as
State legislative assemblies at the state level and subsidiary legislations.

There is no uniform customary laws for all communities in Malaysia. It generally
comprises:
(a) Malay customary laws of Adat Temenggung and Adat Pepatih which are
applicable to different regions in Peninsular Malaysia;
(b) Native customary laws of Sabah and Sarawak;
(c) Aboriginal customary laws which are applicable to the aborigines in
Peninsular Malaysia;
(d) Chinese customary laws which are applicable to the Chinese community;
and
(e) Hindu Customary laws which are applicable to the Indian community.
After the promulgation of the Law Reform of Marriage Act 1976, this legislation
became the sole applicable law with regard to personal matters for both the
Chinese and the Indian communities (Ashgar Ali Ali Mohamed, 2014).
In Malaysia, the usage of customs has been recognised in the courts since the 18th
century. In the case of Sahrip v Mitchell & Anor (1877), the usage of customs has
long been recognised to have a binding force in the society (see Figure 1.6).
Figure 1.6: The usage of customs in the case of Sharip v Mitchell & Anor (1877)
Source: Leic Reports
It is through public records, opinions of persons who are likely to know the
existence of such customs and traditions as well as the villageÊs oral traditions in
order for the existence of customs to be approved.
Customs may be recognised if "there is proof of the existence of the custom as far
back as living witnesses can remember ⁄ in the absence of any sufficient rebutting
evidence⁄⁄" This quote was taken from Halsbury's Laws of England, Volume
12, 4th Edition, Paragraph 422 from the case of Nor Anak Nyawai & Ors v Borneo
Pulp Plantation Sdn Bhd & Ors (2001).

The English case of Egerton v Harding (1974) laid down the requirements that
must be satisfied in order for a local custom to be recognised (see Figure 1.7):
Figure 1.7: The requirements for a local custom in order to be recognised in the courts
Laws develop as society evolves. Historically, the simplest societies were the tribal
ones. Members of the tribe were bonded together by kinship and worship the same
god(s). In the absence of the court and legislature, the law was a blend of customs,
morality, religion and the supernatural. The visible authority was the ruler or chief
but the ultimate authority was believed to be the god(s) which was revealed
through the forces of nature and in the revelations to the tribal head or the priests.
Wrongdoings against the tribe such as sacrilege or breach of tribal custom that the
tribe members thought would incur the wrath of the gods were met with group
sanctions, which include ridicule and hostility. The gods were appeased in
ritualistic ceremonies ending perhaps in the sacrifice or expulsion of the
wrongdoer. Wrongdoings against individuals such as murder, theft, adultery or
failure to repay a debt were avenged by the family of the victim, often against the
family of the wrongdoer. Revenge of this kind was based upon tribal customs, a
major component of early laws.
Customs or adat (as it is referred to in Malaysia) is used interchangeably with
customary laws. The Sarawak Native Courts Ordinance 1992 (No.9 or 1992)defines
customary law to mean „customs and body of customs‰ to which the lawof
Sarawak gives effect. The legal consequence of a custom is the law of tradition.
The law is a natural outcome as a result of people living and working together. If
people are to live together amongst one other, there must be a way to resolve the
inevitable disputes. Therefore, the law can be seen as the activity of subjecting
human conduct to the governance of rules.

Bruce Benson in Younkins (2002) observed that customary laws tend to share the
following basic characteristics:
(a) Strong concern for individual rights;
(b) Laws enforced by victims are backed by reciprocal agreements;
(c) Standard adjudication procedures are established to avoid violence;
(d) Offences are treated as torts which are punishable through economic
restitution;
(e) Strong incentives for the guilty one to submit to the prescribed punishments
due to the threat of social ostracism; and
(f) Legal change by means of an evolutionary process of developing customs
and norms.
Rules and laws need not be created or enforced by a central authority. Customary
law has many advantages and continues to govern a wide range of social
interactions as well as to promote order in many areas of modern society.
Unfortunately, today's intellectual climate largely fails to recognise the existence
of and the potential for customary law creation.
One of the fundamental legal precepts of modern civilisation is that no person
must suffer punishment or pay damages for any conduct that is not expressly
forbidden by law. This precept is reinforced by the fact that the legal rights of both
individuals and corporate bodies should be determined through the courts. This
basic rule of law is at the root of our present legal system. However, with the need
for decentralisation, judicial or quasi-judicial power or authority has been given to
officials who are more or less associated with the government of the day and who
may be subject to government influence. However, the decisions of such delegates
are still subject to the scrutiny of the courts by way of judicial review through
administrative law. Administrative law is concerned with the rules of law which
relate to the exercise of the government's executive powers and privileges as well
as those of public and statutory authorities.
SELF-CHECK 1.1
Explain the four requirements that need to be satisfied in order for a
custom to be recognised by the courts.

THE LAW, THE STATE AND THE
CONSTITUTION
A country with a federal system such as Malaysia has a federal government as well
as state governments. Both the federal as well as state governments have law-
making powers. The document that points to the creation of our federal system is
the Malaysian Constitution, also known as the Federal Constitution. The
constitution makes provisions for the division of law-making powers between the
federal and the state governments. A legal system administered almost entirely on
the basis of a political unit is known as a state. Malaysia has 13 states and in every
state there is a government. Malaysia has a written constitution. The definitions of
a constitution can be seen in Table 1.2.
Table 1.2: Definitions of Constitution
Definition Source
The constitution appeals respectively to the
intelligence of the few and the emotions of the
many.
Arthur James Balfour (1848-1920) in
his introduction to BagehotÊs The
English Constitution (1867)
In its palpable form, the constitution is this –
„the mass of the people yielding obedience to
a select few.‰
Bagehot (1867)
The constitution is the fundamental law from
which the validity of all other laws derives and
is superior to all other forms of law.
Andrew Harding in Law,Government
and the Constitution in Malaysia,
Paragraph 4, Page 47.
A constitution is a settled arrangement by which a country's parts or elements,
within a geographical district, combine themselves due to some common traits or
particular features of mind or character to those in the combined group (a country)
and which distinguishes it from other combined groups (other countries). It is not
so much that a constitution of a country determines its nature and character but
rather, that a constitution reflects a country's nature and character. It is a mode in
which a state is constituted or organised and by which its physical nature or
character is determined, which ultimately determines a country's healthy state,
strength and vitality.
1.5

In the case of a written constitution, the name is sometimes applied to the
document embodying it. In either case, it is assumed or specifically provided that
the constitution is more fundamental than any other particular law and contains
the principles with which all legislation must be in harmony.
Most of everything that goes into the make-up of a constitution (the traits and
characters of one constitution, when compared with others, will be as varied as the
people it is intended to govern) can come and go, and be modified to a certain
extent. However, as sine qua non, it governs all who occupy a geographical area
of a country.
Ernest Renan (1823-1892) was an important French theorist who wrote about a
variety of topics. His famous essay, What is a Nation? was first delivered as a
lecture at the Sorbonne in 1882. It continues to be an important influence on
scholars. He is known for his statements that a nation is „a daily referendum‰ and
that nations are based as much on what the people jointly forget as what they
remember. These statements are frequently quoted or anthologised in historical or
political science works pertaining to nationalism and national identity. Renan
wrote What is a Nation? in order to symbolise the birth of nationalism in France as
a result of the French Revolution in 1789.
According to Renan, „the nation, like the individual, is the culmination of its past
endeavours, sacrifices, and devotions. Of all the cults, that of the ancestors is the
most legitimate, for the ancestors have made us to be what we are. A heroic past,
great men and glory (by which I understand genuine glory) – this is the social
capital upon which one bases a national idea. To have common glories in the past
and to have a common will in the present are the essential conditions for being a
people.‰
Renan introduced the doctrine of multiculturalism because he affirmed that
people can live together in a state on the basis of simple choice. He believed that
nations developed from the common needs of the people who consisted of
different social groups seeking a „collective identity‰. He praises the 18th century
for its achievements in regard to humanity and the restoration of the pure identity
of man, one who was free from misconceptions and socially established variances.
Renan discredits the theory that race is the basis for the unification of people. It is

important to note that France was quite ethnically diverse during the French
Revolution and the rule of Napoleon Bonaparte but it nevertheless managed to set
the stage for nationalism. Renan also asserted that neither language nor religion
were the basis for solidarity because language „invites people to unite but does
not force them to do so‰. Moreover, „religion has become an individual matter‰.
For example, the United States and England both speak English but do not
constitute a single, united nation. Countries no longer operate on the notion of
religions opposing one another and forcing people to choose between one or the
other.
The first notion of constitution was derived from the Oxford English Dictionary
(OED) meaning „to settle, fix or enact; to establish; to form or compose: to make
up; to make a thing what it is.‰ A constitution defines what a country is. While the
essentials may well be written in one document, no one document is
comprehensive enough to describe all the traditions and cultural aspects of a
country's make-up. For this reason, written constitutions are expected to be short
– they need only to state to the essentials. Constitutions should settle and
determine values such as life and liberty and, critically, the form of government it
selects for itself.
According to the dictionary, the word „government‰ is defined as:
(a) Regulation;
(b) Control;
(c) Restraint;
(d) The exercise of authority;
(e) The direction and restraint exercised over the actions of men in communities,
societies or states;
(f) The administration of public affairs;
(g) The system of policy in a state;
(h) The mode or system according to which the sovereign powers of a nation,
the legislative, executive and judicial powers are vested and exercised; and
(i) Many others.
However, nowhere in the dictionary does it say that the government is a biological
identity. It is not a person or anything else that is capable of individualistic
thought. It is merely a theoretical concept.

The Malaysian Constitution is also called the Federal Constitution. The Federal
Constitution is the supreme law-making body (see Figure 1.8).
Figure 1.8: Excerpts from the Federal Constitution

A local government in a state is the lowest tier of government in a country
administered under the states and federal territories which in turn are beneath the
federal tier. Local governments are generally under the exclusive purview of the
state governments as provided in the Constitution, except for local governments
in the federal territories. In Malaysia, the Federal Ministry of Housing and Local
Government plays a role in co-ordinating and standardising the practices of local
governments across the country.
Local government has the power to collect taxes (in the form of assessment tax), to
create laws and rules (in the form of by-laws) and to grant licenses and permits for
any trade in its area of jurisdiction, in addition to providing basic amenities,
collecting and managing waste and garbage as well as planning and developing
the area under its jurisdiction .
In the past, the roots of The Rule of Law sank deep into the days when there was
belief in the supernatural by most people. However, today it is understood and
asserted that the doctrine is derived from theories of natural law and it is applied
when there is an exercise of arbitrary power. Citizens of any country, including
elected and appointed officials of the government, must be subordinated to
impartial and well-defined principles of law.
In democratic countries, the day-to-day exercise of executive power of the
government must conform to general principles of law as administered by the
ordinary courts. A government must be ruled by law, and the law is not ruled by
the government. The undisputed authority when it comes to the definition and
analysis of The Rule of Law is, of course, Dicey (1885) as stated in Figure 1.9.

Figure 1.9: Definition of the Rule of Law by Dicey
Source: Dicey (1885)
Dicey, incidentally, was very much concerned about governmental incursions
being made into The Rule of Law.
The main reason for a country to implement a constitution is to curb abuse from
any group, including the government, through the misuse of power.

More quotations with regard to constitutions are as follows:
EXERCISE 1.1
1. What is the meaning of morality?
2. Why is it that morality cannot always be subject to the law?

• Law is not only important for an orderly social life but also essential for the
very existence of mankind.
• There is no assigned meaning to the word „law‰. Each writer has his own view
and each view is based on the writer's own moral, political, religious and
ethical point of view and the influence of the society in which he lived.
• The law when explained from the same point of view forms the school of
jurisprudence or thought.
• Even though the law has various definitions, a common trait exists in such
definitions.
• The law is the binding customs or practices of a community. It becomes a rule
of conduct or action prescribed or formally recognised as binding or enforced
by a controlling authority.
• Customs and morality determine the laws of a country.
• The constitution is the most powerful and important source of law.
• Different authorities such as the federal, state and local governments create
laws.
• In democratic countries, the concept of day-to-day exercise of executive power
of the government must conform to the general principles of the law as
administered by courts.
• A government must be ruled by law, and the law is not ruled by the
government.
Constitution
Custom
Justice
Law
Morality
The Rule of Law

Ashgar Ali Ali Mohamed (Ed.). (2014). Malaysian legal system. Selangor,
Malaysia: CLJ.
Bagehot, W. (1867). The English Constitution. London, England: Chapman & Hall.
Bonsignore, J. J. (1994). Before the law: An introduction to the legal process.
Boston, MA: Houghton Mifflin.
Dennis, L. (1964). The idea of law. Harmondsworth, England: Penguin Books.
Diamond, S. (1981). In search of the primitive: A critique of civilization. New
Brunswick, NJ: Transaction Books.
Dicey, A. V. (1885). Lectures introductory to the study of the law of the
constitution. London, England: Macmillan and Co.
Harding, A. J. (1996). Law, government and the constitution in Malaysia. The
Hague, Netherlands: Kluwer Law International.
Locke, J. (2011). Second treatise of government. Hamburg, Germany: Tredition.
Morris, J. W., & Birkbeck College (1954). The spirit of justice. London, England:
Birkbeck College.
The Brussels Journal. (n. d.). What is a nation? Retrieved from
www.brusselsjournal.com/node/3395
Washington, G., Madison, J., Hamilton, A., & Paltsits, V. H. (1935). Washington's
farewell address: In facsimile, with transliterations of all the drafts of
Washington, Madison, & Hamilton, together with their correspondence and
other supporting documents ; edited, with a history of its origin, reception by
the nation, rise of the controversy respecting its authorship, and a
bibliography by Victor Hugo Paltsits. New York, NJ: New York Public
Library.
Younkins, E. W. (2002). Customary law as an evolved good shortcut. Retrieved
from www.quebecoislibre.org/021026-11.htm

List of Cases
Egerton v Harding (1974) 3 All ER 689.
Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors & other
Appeals (1997) 4 CLJ 253.
Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors (2001) 6 MLJ
241.
Sahrip v Mitchell & Anor (1877) LR 466.

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