legal system

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2
▶ Classification
of Law
▶ INTRODUCTION
There are three major sources of law in the world. They are the common law legal
system, the civil law legal system and the theocratic legal system. Malaysia adopts
the common law system and the Shariah law wherever applicable while the civil
law system is widely practised in the European countries. Within the common law
system, there are few types of laws which we will be discussing in this topic.
Lastly, we will differentiate between public and private laws as well as between
international and national laws.
To
By the end of this topic, you should be able to:
Explain the three major types of law in the world;
Differentiate between the three forms of common law;
Apply the concepts of public and private law;
Discuss the differences between substantial and procedural law;
Discuss the differences between international and national law; and
Explain the different types of public and private law.

24 ▶ TOPIC 2 CLASSIFICATION OF LAW
LEGAL SYSTEMS
A national legal system is very important for businesses as it lays down the
regulatory framework. The legal systems in the world are based on the values of
diverse cultures. It is generally accepted that legal systems are grouped into
families or models even though they are diverse. There are three major legal
systems in the world. They are the common law legal system, the civil law legal
system and the theocratic legal system.
2.1.1 Civil Law System versus Common Law System
Two legal systems can be identified in the Western world. One is civil law, which
is based on the law of Rome and forms the basis of most of the legal systems in
Europe. It is also an underlying legal philosophy in many other parts of the world,
for example, Japan and Latin America. Civil law tends to emphasise the rights of
the parties to an action rather than the remedies available.
The other legal system is common law, which forms the basis of English Law. It is the
system used in Malaysia as well as in many other former English colonies. Unlike civil
law, common law resulted from the decisions of the judges based on cases that came
before them. Common law focuses on remedies rather than the rights of the affected
parties. English judges were more concerned with the practical results of the
individual cases than the theoretical outcomes. The common law system is based on
three forms as shown in Figure 2.1.
Figure 2.1: Three forms of common law
As mentioned earlier, one major difference between the two systems lies on the
emphasis placed on rights and remedies. The second major difference is the
importance of judicial decision. An important characteristic of the common law
system is the doctrine of precedent, which places great importance on previous
judicial decisions (especially those in higher courts). The civil law system by
contrast places great emphasis on a complete code of written laws, with a
comparative disregard towards individual judicial decisions.
2.1

TOPIC 2 CLASSIFICATION OF LAW ◀ 25
The mode of procedure adopted by the two systems is also quite different. The
common law mode of procedure is described as accusatorial (adversarial). The
parties, described as litigants, throw accusations at each other within the limits
established by the rules of evidence. As a general rule, the judge does not
participate in the examining process. The judge's role is to decide on the issues of
fact (where there is no jury) and on questions of the law.
The civil law mode of procedure is described as inquisitorial. The judge is required
to investigate the circumstances and get to the truth. The judge will ask questions
and will often direct the sort of evidence that he wants to hear. The role of the
lawyer is to comment on the evidence and cross-examine the judge's witnesses.
Table 2.1 summarises the differences between the common and civil law systems.
Table 2.1: Differences between Common and Civil Law
Law System Judical Decision Mode of Procedure
Common law Doctrine of precedent Accusatorial (Adversarial)
Civil law Code of written law Inquisitorial
2.1.2 Theocratic Law
This is also known as religious law and is based on religious precepts, for example,
the Islamic law. In practise, however, the Islamic countries would have a
combination of legal systems consisting of Islamic law and common law or civil
law.
On this point, it is interesting tonote that apart from Islamic countries, many countries
in the world also practise a combination of legal systems consisting of religious law,
common law or civil law. For example:
(a) Religious law and civil law is practised in Algeria, Egypt, Morocco and Tunisia;
(b) Religious law and common law is practised in India, Pakistan, Kenya, Nigeria,
Uganda and Malaysia;
(c) Civil law and common law is practised in Botswana, Mauritius, Malta,
Philippines, Sri Lanka, Namibia, Swaziland and Zimbabwe; and
(d) Religious law, civil law and common law is practised in Israel, Jordan, Arab
Saudi, Somalia and Yemen.

According to Orucu (2008) the transmigration of law followed the paths of
colonisation, resettlement, occupation, expansion and interrelationship. The
methods of these migrations were imposition, reception, imposed reception,
coordinated parallel development, infiltration, imitation as well as variations and
combinations of these.
The consequences are the birth of systems in transition and mix, mixed
jurisdictions, interrelated systems, evolving systems, layered-laws, hyphenated
legal systems, harmonisation, unification and standardisation. In all these there are
different conceptual implications.
2.1.3 Sources of Law in Mixed Legal Systems
Countries
The legal system is concerned with the way laws are enacted and administered. It
deals with the mode of dispute and resolution. Countries often develop a legal
system which incorporates more than one components of legal systems. This kind
of legal system is called „mixed‰ or „hybrid‰ legal system. A hybrid legal system
may be a mixture of religious law, common law, civil law or all of them. In practice,
a hybrid system is needed to integrate the best features of the laws that are
customised to meet the needs of the particular society. Generally, a mixed or
hybrid legal system has a combination of two or more of the four major types of
laws, namely, common law, equity, statute and shariah law (for Islamic countries).
For the explanation under this topic, the sources of law can be divided into two:
(a) Major sources of law; and
(b) Minor sources of law.
Figure 2.1 illustrates the four major sources of law.
Figure 2.2: Four major sources of law

The four major sources of law are briefly explained in the following:
(a) Common Law
Common law forms the basis of, and is a main source of the legal system. It
can be defined as:
Common law became rigid and inflexible after the Provisions of Oxford 1258
when the Clerk of the Chancery Court lost his ability to create new writs for
new wrongs.
(b) Equity
Equity is considered by many as another main source within the legalsystem.
It implies fairness and justice in the law. Equity is developed as a result of
the rigidity and inflexibility of the common law. In the event of conflict with
the common law, equity will prevail. It should be noted that equity is
supplementary rather than a complete set of laws in its own right.
(c) Statute
Statute is also one of the main sources and today it is considered the most
important source since a great majority of laws emanate from parliament.
The role of sovereignty in the lawmaking process has been supplanted by
parliament. As a result, the sovereignty is probably no more than a
figurehead in the parliamentary process. Statute law overrules common law
in the event of a clash between the two.
(d) Shariah (Islamic) Law
Islamic doctrine states that the legislator does not have the power to change
the rules that forms the core of the Islamic law. It consists of particular ethical
imperatives to which any Islamic political or economic system must conform.
The fundamental ethical principles enunciated in the Quran and hadiths
(primary legal source of Islamic law) will limit Islamic statesÊ authority in
governing the society. The Quran and hadiths will be above the legislatorÊs
power in enacting any laws. If there exist any conflict in the interpretation of
the primary legal source, such conflict has to be resolved by independent
reasoning (ijtihad) and consensus among Muslim scholars (ijmaÊ ulama).

Apart from the four major sources of laws used in many countries, there are two
minor sources of laws used, namely, merchant law and canon law. Two minor
sources of law are as indicated in Figure 2.3.
Figure 2.3: Two minor sources of laws
(a) Merchant Law
Merchant law is a minor source of law which was developed out of both the
local customs and international traditions based on Roman law. Lex
mercatoria (from the Latin for „merchant law‰), often referred to as „the Law
Merchant‰ in English, is the body of commercial law used by merchants
throughout Europe during the medieval period. It evolved similar to English
common law as a system of custom and best practice, which was enforced
through a system of merchant courts along the main trade routes. The lex
mercatoria was composed of such usages and customs as were common to
merchants and traders in all parts of Europe, varied slightly in different
localities by special peculiarities. Less procedural formality meant speedier
dispensation of justice, particularly when it came to documentation and
proof. To date, the „merchant law‰ or „lex mercatoria‰ is sometimes used in
international disputes between commercial entities. Most often those
disputes are decided by Arbitrators which sometimes are allowed (explicitly
of implied) to apply lex mercatoria principles.
(b) Ecclesiastical or Canon Law
Canon law is a set of ordinances and regulations made by ecclesiastical
authority (Church leadership), for the government of a Christian
organisation or church and its members. It is the internal ecclesiastical law,
or operational policy, governing the Catholic Church (both the Latin Church
and the Eastern Catholic Churches), the Eastern Orthodox and Oriental
Orthodox churches, and the individual national churches within the
Anglican Communion. The way that such church law is legislated,
interpreted and at times adjudicated varies widely among these three bodies
of churches. In all three traditions, a canon was originally a rule adopted by
a church council; these canons formed the foundation of canon law. The
canon law of the Eastern Catholic Churches, which had developed some

different disciplines and practices, underwent its own process of
codification, resulting in the Code of Canons of the Eastern Churches
promulgated in 1990 by Pope John Paul II. The institutions and practices of
canon law paralleled the legal development of much of Europe, and
consequently both modern civil law and common law (legal system) bear the
influences of canon law.
Ecclesiastical or canon law is important in the early development of the
English law, particularly in the areas of criminal law, marriage and
succession of property. Today, the influence of ecclesiastical law is limited to
administrative and disciplinary matters relating to church members and
church property.
DIFFERENCE BETWEEN PUBLIC LAW AND
PRIVATE LAW
The decision between public and private laws is not always mutually exclusive. In
some areas, the law might appear to fit into both sides of the dichotomy. The two
areas are often defined in terms of the respective bodies of law which revolve
around the state as a public institution as opposed to law which focuses on the
private relations between ordinary members (both natural and corporate) of the
community.
2.2
SELF-CHECK 2.1
Apart from civil law, what other legal systems are practised in our
country?
Name the countries that practise a mix of legal systems.
ACTIVITY 2.1
Explain why the common law and the statute are considered as main
sources of the law. If there is a conflict between the two, which one do
you think should prevail? Share your opinion in the myINSPIRE online
forum.

Public law is concerned with relations of the state or with states, or with relations
between public institutions which comprise the apparatus of a state. It is also
concerned with the relationship between states as well as between a state in its
public capacity and its citizens.
Private law, on the other hand, is concerned essentially with the regulation of the
affairs of individuals or legal persons in their private capacity. The latter may
include the state or state institutions because the state may enter into private
arrangements in its private capacity. It may, for example, contract with businesses
for the supply of services of various types or for the construction of building. It
might purchase land from individuals or buy shares in a corporation.
Private law applies to relationships between individuals in a legal system, for
example, contracts and labour laws. Public law, on the other hand, applies to the
relationship between an individual and the government. In general terms, private
law involves interactions between private citizens whereas public law involves
interrelations between the state and the general population.
There are six areas in public law as shown in Figure 2.4.
Figure 2.4: Various areas of public law
Importantly, these six areas are included as areas of public law because in each
case there is a sufficient measure of public interest. The rights of individuals may
be involved. Court intervention may even be required because the dispute in
question involves original dispute between particular individuals. But this is of no
consequence because the nature of the legal issues involved transcends the arena
of merely private dispute.
On the other hand, private law is basically the body of law which is concerned
with relations between members of a given legal system in terms of their private
capacity. Private law includes areas which are shown in Figure 2.5.

Figure 2.5: Various areas of private law
No doubt it is a little confusing when we say that private law is potentially capable
of being directly applied to governments, government agencies and so on. This is
because, apart from being a public agency, the state can also enter into dealings
and arrangements between its own agencies or with its citizens in a private
capacity. For example, the state can be a party to a contract to sell or buy land. The
state can also, with some limitations, be held accountable for common law wrongs
such as negligence.
What this means is that it is necessary to recognise the distinction between public
and private laws and the conception of what is termed as the legal personality of
the parties involved.
The term „person‰ is derived from the Latin term persona which, in turn comes
from the classical Greek word porsopon. The latter means „a mask‰, particularly
in reference to the theatrical mask that is used by an actor in a drama to represent
a specific character in the play.
In law, the notion of legal personality indicates certain character or identity which an
individual might bear for the purpose of the legal system. In a general sense, it
indicates those individuals within the legal system who can be regarded as the
bearers of rights and duties or perhaps of rights and duties of a particular sort.
The legal system recognises „persons‰ accordingly for the purposes of the law, not
only as adult individual human beings but other „pseudo-entities‰ such as states,
ministerial offices, the Crown, the Governor or Governor-General, corporations,
cooperatives and companies. They are sometimes called juristic persons in order
to distinguish them from natural or biological persons.
This is one important sense of what is called the rule of law where all legal persons
within the legal system, including government entities and the Crown itself, are
subject to and must act according to law. The Crown is provided with certain
special immunities and prerogatives as a legal actor but in itself it is constrained
by legal principles.

An example of the attribution of legal personality accorded to a private company
is the separate entity theory of the company law.
A corporation acquires legal personality by its creation, usually according to the
statutory process. During its existence, its right to undertake certain legal acts will
be limited. Corporations, unlike natural individuals, cannot perform acts such as
voting at elections and cannot commit certain crimes, for example, crimes that
would be regarded as inconsistent with its corporate status.
In relation to both natural individuals and corporate entities, the legal personality
is something that can in effect „come and go‰. Children will attain full legal
personality upon attaining their maturity. They may lose it again, in whole or in
part, if they become mentally incapacitated or imprisoned for a serious offence.
The latter is somewhat dramatically known as „civil death‰. Natural persons will
lose their legal personality when they die whereas corporations will lose their legal
personality when they wind up their business either through a prescribed court
process or by special legislation as deemed appropriate.
The foremost advantage of carrying on the business through the formation of a
corporation or company is the application of the concept of corporate personality
which simply means that the corporation becomes a legal entity, is separate and
distinct from its members. Another important advantage is that the company gets
to enjoy limited liability. The concept of limited liability can be said to flow directly
from the concept of corporate personality. The concept of legal or corporate
personality therefore means that once the company is incorporated, it is capable of
enjoying the rights of and subject to the duties that are different from those enjoyed
or borne by its members.
In the context of the difference between public law and private law, suffice to say
that both the state and ordinary members of the legal system are treated as capable
of having distinct public and private personalities. As a legal person, the state may
be charged in carrying out its actions in its public or political capacity. However,
at the same time, it can also act in a way that a private individual might act (for
example, entering into private bargains).
The same applies to an ordinary member of the legal system who can have rights
and duties in his public or private capacity. On one hand, the member may be a
citizen and therefore liable to pay taxes or be entitled to vote as a citizen. On the
other hand, the individual can enter into legal relations with other persons and
this will enable him to undertake duties and obligations as well as acquire rights
and interests by virtue of his private capacity.

Accordingly, it is appropriate to recognise that both the public and private laws
will affect the state and the ordinary legal persons from time to time, and the extent
of the effect will depend upon the particular „mask‰ that is being worn at the time
of the relevant act. Just as the state can pursue remedies with private law, the
ordinary citizen may also pursue remedies which are distinctly provided by public
law. The nature of the rights and the remedies may differ substantially, of course,
but they are potentially available nonetheless.
SUBSTANTIVE LAW AND PROCEDURAL
LAW
According to Legaldictionary.net (2018) substantive law is a type of law that
handles the legal relationship between individuals, or between individuals and the
state. Substantive law differs from procedural law, in that it defines peopleÊs rights
and responsibilities. Procedural law focuses more on the rules that are used to
enforce those rights and responsibilities.
Substantive law deals with peopleÊs rights and responsibilities. For example,
substantive law dictates the kind of punishment that someone may receive upon
being convicted at the conclusion of his criminal trial. Substantive law also defines
types of crimes and their severity. For example, substantive law is used to decide
whether a crime was a hate crime, whether a murder was committed in self-
defence, and so on. Substantive law is then relied upon to determine the rights that
are afforded to the accused.
2.3
ACTIVITY 2.2
When does a corporation lose its legal personality? Will the effect be felt
immediately?
Share your answer in myINSPIRE.
SELF-CHECK 2.2
Whenever there is a legal dispute between two parties in their
private capacity, it is classified as private law. What is meant by
public law?
Differentiate between public law and private law.

Substantive law explains the actual law set down by the judiciary and legislature
such as elements of a contract, company, crime, penalties to be imposed, rules of
evidence, etc.
Procedural law differs from substantive law in that it guides the state on how best
to enforce substantive laws. Procedural law is made up of all of the rules that a
court will consider when determining how best to handle a civil or criminal court
proceeding. Procedural law provides a kind of step by step plan on how the facts
of each case are to be handled, and how the case should proceed in order to reach
a desired goal, whether that goal is trial, settlement or otherwise.
Procedural law governs the machinery of the courts and the methods by which
both the state and the individual (the latter including societies, whether
incorporated or not) enforce their rights in the courts. It prescribes the means of
enforcing rights or providing redress of wrongdoings. It comprises rules relative
to jurisdiction, pleading and practice as well as evidence.
DIFFERENCE BETWEEN INTERNATIONAL
LAW AND NATIONAL LAW
There are differences between international law and national law, as we shall see
in this subtopic.
The international legal system deals with relations between countries while the
national legal system of each country mainly governs relations between its
citizens. It is easy to think of international law as laws that relate to war and peace,
control of international aggression and the peacekeeping efforts of the United
Nations. These are certainly matters that involve international law. They are,
perhaps, one of the most important areas of international law. Unfortunately, these
areas are also some of most difficult in terms of effectiveness. For the international
legal system, dealing in general with legal relations between countries lacks some
of the important features of national legal systems.
International law has no legislature, which means there is no body which
possesses a recognised and effective authority to pass legislation that binds
countries. The United Nations General Assembly has considerable influence and
can pass resolutions about the rights and duties of the countries. However, its
powers in relation to the countries are very much weaker than the powers of a
national parliament over its citizens.
2.4

Only the Security Council has power to pass binding resolutions to deal with
threats to peace, breach of peace and aggression. Other countries are obliged to
international law only if they choose to, usually by becoming party to a treaty with
one or more countries.
Figure 2.6: United Nations logo
Source: http://www.worldvolunteerweb.org/assets/graphics/logos/un_logos/un/
UN_sm.gif
International law does not provide for the police force or the army. It is true that
the United Nations has a peacekeeping force but it is a very small force. The
peacekeeping force is supplied by member nations and can only be effected with
the consent of the countries involved. In general, the peacekeeping force cannot do
very much beyond policing political or national boundaries.
In addition, there are no courts of the kind that exist in international law as those
of national legal systems. There are only institutions that operate like the ordinary
courts, notably the International Court of Justice (the World Court). However, this
Court, like other international courts and tribunals, can generally decide cases only
with the consent of the countries concerned. It is, therefore, quite different from
national courts in which people can be sued or prosecuted regardless whether they
like it or not.

Figure 2.7: International Court of Justice
Source: http://www.unescap.org/unis/img/icj1.jpg
The United Nations and the international legal system are generally criticised for
being ineffective, in other words, for not being the „law‰ at all. It has been pointed
out, and quite rightly so, that the international law did not prevent the Vietnam
War, the Gulf War or the Middle East conflicts.
However, there are also many areas in the international legal system which are
effective, such as those listed in the following:
(a) Postal system between the countries;
(b) Matters of nationality and citizenship;
(c) Rights of ships on high seas;
(d) Interpretation and enforcement of treaties;
(e) Use of the worldÊs resources;
(f) Protection of global environment; and
(g) Powers and structure of international organisations such as the United
Nations and the International Monetary Fund.
Of course the rules regarding war and peace cannot be ignored. However, it is also
true to say that since the international legal system does not have its own
legislature, courts and police force like those of national systems, its operation
depends largely on the consent of the countries. As such, it is often most workable
in areas where countries see their own interests as best served through orderly
cooperation with others. In modern times, the major source of international law is
agreement – the growing network of treaties between two or more countries on a

host of matters. Many multilateral treaties resemble legislation. In Malaysia, such
international agreements do not automatically become part of the national law.
However, they can influence the development of Malaysian law since they are also
important in a different way.
The areas in which the parliament has power to make laws are those that involve
external affairs and laws that give effect to international standards (within the
power of the parliament) even though they deal with matters that would otherwise
come under the legislative power of the state.
Three divisions of the international law that have an increasing body of laws are
treaties, declarations and conventions (see Figure 2.8).
Figure 2.8: International law bodies with increasing laws
These bodies set out standards relating to matters of international concern, for
example, human rights and the protection of the environment.
On 4 August 1995, the Malaysian government ratified the Convention on the
Elimination of all forms of Discrimination Against Woman (CEDAW) with certain
reservations. The Convention has been with the United Nations since 1979 and it
took Malaysia 16 years to implement it. CEDAW aims to spell out womenÊs rights
and compels the government to ensure that the rights are not abused. It provides
the framework for advocating womenÊs human rights. The convention calls for the
national legislation to:
(a) Ban discriminations, recommend temporary special measures to speed up
equality between men and women; and
(b) Modify social and cultural patterns which perpetuate discrimination.
CEDAW focuses on three main areas of womenÊs rights, namely, civil rights and
the legal status of women, reproductive rights as well as cultural factors
influencing gender relations.

It is interesting to note that after the existence of CEDAW in Malaysia, there were
a lot of movements by Suruhanjaya Hak Asasi Manusia Malaysia (Suhakam) and
non-governmental organisations (NGOs). In addition, a number of government
entities were established such as the National Advisory Council on the Integration
of Women in Development and the WomenÊs Affairs Secretariat to bring about
gender equality and rights of women in this country. The discourse on equal rights
of women as a social group evolved subsequently. The collaborations and various
efforts culminated in the creation of the Ministry of Women, Family and
Community Development in 2001 which played a lead role to effect the
amendment to Article 8(2) of the Federal Constitution to include the word
„gender‰ for the purpose of preventing discrimination against women.
This development can be appreciated based on a progressive court judgement in
the case of Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ
832 in the High Court in which Justice Zaleha Yusof of the Shah Alam High Court
stated explicitly that CEDAW has the force of law and is binding in Malaysia. The
legal question in NoorfadillaÊs case arose when the Malaysian Government
revoked and withdrew her appointment as an unskilled temporary teacher or
Guru Sandaran Tidak Terlatih (GSTT) because she was pregnant. The High Court
held that this act amounted to gender discrimination and constituted a violation
of Article 8(2) of the Federal Constitution which deals with gender equality before
the law. In this case, the court found that a decision by the Ministry of Education
to revoke a teaching offer to a woman because she was pregnant was a case of
gender discrimination.
Many changes have been brought up in recent years to improve the status of
women in Malaysia. Most recently, it was the amendment of Article 8(2) of the
Constitution. The Guardianship of Infants Act 1961 was amended to accord
mothers and fathers equal guardianship rights over their children. The Domestic
Violence Act 1994 was enacted to deal with domestic violence, the victims of which
are mostly women and children. The Distribution Act 1958 was amended so that
when a woman dies without a will, her husband will not inherit the whole of her
estate to the exclusion of the children from her marriage (Honey Tan Lay Earn,
2013).

BRIEF SUMMARY OF THE TYPES OF LAW
It is important to know the types of public and private laws. These laws have
evolved to better provide for the rights, obligations, remedies and protection to the
state and the citizens of the country.
2.5.1 Growth of Public Law
The areas of private law have long been inherent in the Malaysian and English
legal systems. We will examine the historical development of some of the most
important areas of private law. One could say that, until the end of the 19th century,
private law was the dominant type of law. On the other hand, there was no elaborate
system of public law. It is principally due to the lack of a highly complicated state
and bureaucratic apparatus.
At the end of 19th century, there was a significant growth in the area of state
activity or what we called welfare state. There was also evidence of a concomitant
growth in the area of bureaucratic activity in order to conduct the affairs of an
interventionist state.
The increasing interventionist state activity may be seen as contradictory to the liberal
ideology that we have mentioned earlier. On the other hand, it may be rationalised as
necessary in order to generate conditions of relative equality of opportunity within
which individuals might be able to pursue their life projects. This trend continues to
the present day although at times of privatisation and rational market theory, we can
see a reaction against further growth of the public sector.
2.5
SELF-CHECK 2.3
similarities with the national law legal system? What are its roles
towards member nations?
On 22 February 2018, The Star Online published an article stating
that Malaysia has been criticised by representatives from Muslim
countries for allowing female genital mutilation (FGM) and
calling for the practice to be abolished during the 69th Dialogue
Sessions of the CEDAW Committee in Geneva on20
February 2018. Discuss whether banning FGM is a form of
discrimination against women. Share your views on myINSPIRE.

Nevertheless, this trend witnessed a growing body of public law as legal theorists,
legislators and the courts were faced with new situations that the principles of
private law were ill-equipped to deal with. The reason for this was not only that
the state had expanded its range of activities (for example, the introduction of
welfare and reformist legislation a well as an increase in the growth of public sector
activity) but what was more crucial was the shift in the nature of the relationship
between the state and the individual.
A change to welfare state policies from the former classical liberal ideas of a
minimalist state in a laissez-faire or market economy involves a radical movement
from the basic political relationship between the public sphere of government and
the individuals who are subject to law.
Even private law has been affected, to some extent, by the growth in public law.
One sees in areas such as contract law – a traditional area of private law – the
tendency to re-evaluate private law thinking on the nature of the contractual
bargain and the rights of the parties to a contract in concepts which may well have
been derived from public law.
According to Cornell Law School (n. d.), unconscionability is a defence against the
enforcement of a contract or portion of a contract. If a contract is unfair or
oppressive to one party in a way that suggests abuses during its formation, a court
may find it unconscionable and refuse to enforce it.
New doctrines such as the doctrine of unconscionability and contracts review
legislation evidence as a trend towards the intervention of doctrines inspired by
public law. In the 19th century, the courts would most often treat a contract which
is freely entered into as sacrosanct and therefore beyond intervention.
Clearly this is no longer the case in the sense that the courts themselves have
shown a willingness to intervene in private bargains in appropriate cases.

2.5.2 Types of Public Law
What we will now seek to do is to provide an outline of major areas of public law.
The main areas are constitutional law, administrative law, taxation law, criminal
law, international law and environmental law.
These categories of public law are not exhaustive. Public law continues to develop
according to the needs of the society. It is important to note the basic sense in which
the law operates in the public domain. In particular, you should be able to see how
all the areas of public law involve the participation of public institutions including
the state, at the most general level, encapsulating all of the public institutions of
law and government.
Types of public law are shown in Figure 2.9.
Figure 2.9: Types of public law
(a) Constitutional Law
In a very broad sense, constitutional law is concerned with the legal
principles which provide the background for the operation of the Malaysian
system of constitutional government.
A constitution is the set of rules that regulate the relations among the
different parts of the government of a given country as well as the relations
between the different parts of the government and the people of the country.
Under the doctrine of separation of powers, three separate branches exist
with defined powers, namely, the legislative (parliament), executive and
judiciary. Authority is not concentrated in any single body regardless of its
functions, personnel or powers. Legislative is the law-making body, the
executive puts law into operation and the judiciary interprets the law and

settles any disputes. Parliament can only enact laws within the boundaries
permitted by the constitution. If a statute has gone beyond the limits
permitted by the constitution or has become unconstitutional, the court can
invalidate it by way of judicial review application.
The principle, known as judicial review, was established in relation to the
constitutional system of the United States by the decision of the United States
Supreme Court in Marbury v Madison.
The Malaysian Federal Constitution, unlike that of the United Kingdom, is a
written constitution. It is, superficially at least, a codified constitution in the
sense that the constitutional arrangement purports to be found in a single
document rather than, as in other cases, where a plurality of documents or
practices might be taken as composites of the constitution. The constitution
of the United Kingdom subsists in the historical conventions and practices
that developed over a long period of history. No doubt there are documents
that evidence the development of these conventions, but there is nothing like
a single documentary embodiment such as we have in Malaysia. Should we
inquire the content of the United Kingdom constitution, we are then setting
ourselves the difficult task of inquiry into the significant features of the
political and legal history of the United Kingdom itself.
There are two types of constitution as shown in Figure 2.11.
Figure 2.11: Types of constitution
It is something of a misnomer to ascribe just one constitution to Malaysia and
this, of course, is the inevitable consequence of the manner in which the
federal structure came into being in Malaysia. The Federal Constitution was
formed presupposing a unity of the peoples of various states. Each of the
states had its own history of constitutional development, which led to its
establishment as a more-or-less independent constitutional entity at the time
of the Federation. The states' existence as political and legal entities was
moderated but not obliterated by the Federation.

(b) Administrative Law
The growth of public law was largely attributed to the growth of
administrative law.
Administrative law is applied to the areas of law which purport to regulate
the relationships between the citizens and the public officials, particularly
the bureaucracy.
The growth in administrative activity was directly related to the growth of
the so-called welfare state from the end of the last century. This conception
of the state, the development of which is at least reflected in the attempted
merger of classical liberal ideology with strands of socialist thought at the
end of the last century, affected a challenge to the early liberal concept of the
minimal state as put forward by thinkers such as J.S. Mill.
The concept of the welfare state shifted the political power away from the
traditional aristocratic and middle commercial classes in the direction of
bureaucracy. Unfortunately, the expansion of bureaucratic activity and the
extended complexity of regulation of the ordinary lives of citizens was not
accompanied by any elaborate mechanisms to cope with abuse of power or
failure in duty on the part of bureaucrats and others endowed with this new
political power. Until 30 or so years ago the predominant means of regulation
of the activities of administrators in Malaysia was by traditional principles
known as the principles of 'natural justice'. Of course it should be said that
administrators were subject to the ordinary laws just the same as other
citizens. But they were in an especially privileged position in that the official
positions, which they enjoyed often, meant they were not responsible for
actions officially undertaken. Often the issues, which needed to be raised,
were the basis upon which official and therefore legitimate decisions were
taken on behalf of the state.

(c) Taxation Law
Taxation law is one of the areas of public law.
Taxation is loosely described as the collections by the state or public agencies
from its citizens for public purposes. Taxation is nonetheless the means
whereby the state raises the funds necessary to maintain public or communal
goods and services such as roads, defence systems, public service
infrastructure and so on.
Taxes may take many forms such as shown in Figure 2.12.
Figure 2.12: Form of taxes
Taxes are classified as direct or indirect taxes according to the manner in
which they are imposed. Direct tax includes the direct levies against income
and capital gains derived by citizens. Indirect tax includes certain goods and
services or sales and consumption taxes as well as stamp duties imposed on
various property transactions and council rates.

Figure 2.13: Classification of taxes
(d) Criminal Law
Criminal law is concerned with the imposition of penalties or sanctions
against citizens in respect of conduct, which is regarded as sufficiently
corrigible to warrant state action.
In theory, the state is a public agency, the guardian of a political and social
system. Particular types of conduct or courses of action on the part of its
citizens may be regarded as sufficiently serious as to justify the prevention
or discouragement. These types of conduct are also termed as crimes.
The main purpose of criminal law is to maintain law and order, to protect
society as a whole and to provide punishment for those who break the law.
Criminal law deals with individuals who have committed a crime against the
state and usually involves the government as one of the parties (prosecution).
Action is normally taken against an offender by the Attorney GeneralÊs
Chambers of Malaysia on behalf of the state and the punishments can be
imprisonment, community service or a fine.
(e) International Law
International law is the set of rules generally regarded and accepted as
binding in relations between states and between nations. It serves as a
framework for the practice of stable and organised international relations.
There are two types of international law, namely, private and public
international laws (see Figure 2.14).
Figure 2.14: Two types of international law

Private international law (also known as conflict of laws) regards
jurisdictional questions such as where a case may be legally heard and what
jurisdictional laws apply to the issues at hand. Private international law deals
with conflicts that are between private individuals and not between states as
in public international law.
Public international law covers relations between states in all their myriad
forms, from war to satellites and regulates the operations of many
international institutions. It may be universal or general, for example, the
practice of diplomatic asylum for refugees.
An example of private international law is as follows:
Two Malaysians signed a contract in France to sell goods in Paris. A
Malaysian court would apply the French law in regards to the validity of the
contract.
(f) Environmental Law
Environmental law is also known as environmental and natural resources
law. It comprises all norms designed to protect the environment. The
protective laws that relate to the installations, environmental media and
substances (pollution control law, water law, soil protection law, waste law
and chemicals law) make up the core of the environmental law.
The pressure of public concerns with environment matters on political
institutions has resulted in the creation of a number of specialised
institutions with specific statutory powers relating to the regulation of the
environment, for example, the federal and state Environmental Protection
Agencies.

2.5.3 Types of Private Law
Private law can be categorised into contract law, law of torts, property law and
succession law (see Figure 2.15).
Figure 2.15: Types of private law
(a) Contract Law
Contract law is concerned with all aspects of the special form of agreement
known as a contract. This includes not only the principles in which one
determines whether a contract has been brought into existence but also
regarding matters such as the interpretation of the contract, whether the
contract has been breached by one or more parties, the enforceability of the
contract as well as the discharge of the parties from the contract.
A contract is a type of legally enforceable agreement. However, it should be
noted that not all agreements made between parties are to be regarded as
contracts. The definition refers to agreements intended to be enforceable by
law. In this respect, there are certain elements which must be complied with
before an agreement can be regarded as a contract. One of the simplest
definitions formulated in respect of a contract is in Todd v Nicol, where it
was said that a contract is:

(b) Law of Torts
A tort, in common law jurisdictions, is a civil wrong that causes someone else
to suffer loss or harm resulting in legal liability for the person who commits
the tortious act. The most conventional classification of tortious liability is
that which distinguishes wrongdoings which are intentional from those
which are not. The oldest torts involve wrongdoings such as trespassing a
person or property, wrongful detention and conversion of goods or personal
possessions, in other words, concerned with the rights to recover the
property. The non-intentional varieties of torts include, for example,
negligence and nuisance.
Other conduct may involve interventions in political, civil, personal or
proprietary rights of other citizens. It often seems like an appealing rationale
until we examine the nature of the rights more closely. Then it becomes more
obvious that the supposed rationale tends to drive us to the conclusion that
certain conduct is deemed criminal simply because the legal system says that
it is to be treated as such.
Figure 2.16: Classification of law of torts
(c) Property Law
Property law is the area of law that governs the various forms of ownership
and tenancy in real property and in personal property, within the common
law legal system. It concerns issues such as types of property, particular
interests in relation to property and the manner in which property interests
might be dealt with by those who lay claim on them.
There is not only diversity as to types of property but there is also a great
diversity as to the types of interest in the property, for example, certain types
of creative activity will fall within the law of copyright and therefore be
recognised as a form of intellectual property.

In property law, there are legal interests and equitable interests. Legal
interest refers to the actual ownership of the property. A legal title grants
true ownership of the property. The person who has legal interest over the
asset is known to have the perfected right of ownership of the asset and he
has all the rights and powers to take legal action to secure the possession of
the said asset.
On the other hand, equitable interest refers to the enjoyment of the property.
An equitable interest holder will be able to enjoy the asset withoutholding an
actual legal title to it. The party with the equitable interest will beable to
benefit indirectly from any value appreciations in the asset. For example, a
tenant in a tenancy agreement enjoys equitable interest andpossession of the
property throughout the tenancy period.
Figure 2.17: Two types of interests in property law
(d) Succession Law
The law of succession is considered as not part of any laws. This area of law
is found in the English law of succession. It is based on the common law to
some extent but in many vital respects, it is a creature of the statute law as
well. Historically, the English law of succession was influenced by the feudal
system. There was some influence in terms of the jurisdiction of the courts of
ecclesiastical law and through civil law. However, today there are more
significant similarities with the jurisdiction of equity.

There were some very significant early differences between the way in which
the principles of succession applied to real estate on the one hand, and to
personal estate on the other. This reflected the importance attached to real
estate and the importance of securing control over land estates as against the
free disposal or exchange of commercial or personal property. The rights of
a particular group to control the inheritance of real estate is a significant
factor in certain societies or at a particular stage of its historical development.
It is attributable to something more than mere territorialism on the part of
the individuals involved. It reflects both the importance of attachment to
land as well as the importance of land in an economic sense within a
particular society. We could say that the central importance of real estate has
diminished somewhat in economic terms without devaluing the attachment
which is placed on it. But more forms of property tend to be of greater
significance economically than they once were.
In Malaysia, Muslims and non-Muslims are governed under different sets of
inheritance laws. Estates of deceased Muslims are governed by Shariah laws while
estates of deceased non-Muslims are governed under acts such as the WillÊs Act of
1959 and the Distribution Act 1958 (Amended 1997). The Distribution Act 1958
(Amended 1977) applies to the residents in West Malaysia and non-Muslims in
Sarawak, while a different set of laws apply to Sabah and natives of Sarawak.
For non-Muslims, if a person died intestate (without a will) the Distribution Act
1958 (Amended 1997) will be applicable to his estate and if he leaves a will before
he died, the WillÊs Act 1959 will be applicable. Generally, the estate will be
distributed among the deceasedÊs immediate family; his parents, his spouse and
his issue (descendants including his children and descendants of his children). If a
person dies leaving no parents, spouse and issue, his estate will go the following
persons in order of priority, namely:

(a) His brothers and sisters;
(b) His grandparents;
(c) His uncles and aunts;
(d) His great grandparents;
(e) His great granduncles and grandaunts; and
(f) It is only if a person dies without parents, spouse, issue, any of family
members, will the whole estate goes to the government.
If a person leaves a will before he dies, the executor of his will acts to ensure the
contents of the will are executed accordingly. Muslims in Malaysia, unlike the non-
Muslims, are not allowed to freely specify the distribution of his estate. A Muslim
can only write a will and specify only up to 1/3 (not to his legal heirs) of his total
estate. This is called a bequest or „wassiyah‰. For Muslims, his property will
distributed according to the „Faraid‰ or Islamic law of inheritance which denotes
the fixed shares of inheritance allocated to the various relatives (legal heirs) by the
Quran and Sunnah (ProphetÊs Muhammad tradition).
SELF-CHECK 2.4
Evaluate your understanding by answering the following questions:
The Malaysian Constitution is an unwritten constitution. True or
False?
Administrative law is one of the areas of public law. True or False?
International law can be classified into two categories. What are
they?
Taxation law can be classified into two categories. What are they?
What are the examples of non-intentional varieties of tort?
In property law, there are legal interests and common law
interests. True or False?
Law of succession can only be found in the English law. True or
False?

• There are three major types of legal systems in the world, namely, common
law legal system, civil law legal system and theocratic legal system.
• Some countries practise a combination of legal systems such as religious law
and civil law systems, religious law and common law systems and religious
law, civil law and common law systems.
• There are countries that practise a mixture of legal systems such as religious
law and civil law in Algeria, Egypt, Morocco and Tunisia among others. A
mixture of religious law and common law is practised in India, Pakistan,
Kenya, Nigeria, Uganda and Malaysia among others. A mixture of religious
law, civil law and common law is practised in Jordan, Arab Saudi, Somalia and
Yemen.
• Malaysia practises the common law legal system together with the Islamic law
in certain personal matters.
• Public law is concerned with the relations of the state with other states, or with
relations between public institutions which comprise the apparatus of a state.
It is also concerned with the relationship between states as well as between a
state in its public capacity and its citizens.
• Public law involves the participation of public institutions including at the
most general level, the state as encapsulating all the public institutions of law
and government.
• Private law is concerned essentially with the regulation of the affairs of
individuals or legal persons in their private capacity. Private law merely
involves the regulation of the interrelationship between private citizens.
• The international legal system deals with relations between countries while the
national legal system of each country mainly governs relations between its
citizens.
EXERCISE 2.1
What is the difference between public and private law?

• Public law includes constitutional law, criminal law, international law,
taxation law, environmental law and administrative law. These categories are
not exhaustive and continues to develop according to the needs of the society.
• Constitutional law refers to rights carved out in the federal and state
constitutions. The majority of this body of law has developed from state and
court rulings, which interpret their respective constitutions and ensure that the
laws passed by the legislature do not violate constitutional limits. The doctrine
of separation of powers contained in a constitution defines the extent of powers
of the legislature, executive and judiciary.
• Administrative law governs the activities of administrative agencies of
government. Government agency action can include rule making,adjudication,
or the enforcement of a specific regulatory agenda.
• Criminal law deals with individuals who have committed a crime against the
state and usually involves the government as one of the parties (prosecution).
Action is normally taken against an offender by the Attorney GeneralÊs
Chamber of Malaysia on behalf of the state and the punishments can be
imprisonment, community service or a fine.
• Environmental law is also known as environmental and natural resources law.
It is a collective term describing the network of treaties, statutes, regulations,
common and customary laws addressing the effects of human activity on the
natural environment.
• Private law includes contract law, law of torts, property law and succession of
law.
• Contract law deals with all aspects of the special agreement between parties.
• Law of torts concerned with civil wrongs that cause someone else to suffer loss
or harm resulting in legal liability for the person who commits the tortious act.
• Property law is the area of law that governs the various forms of ownership
and tenancy in real property and in personal property, within the common law
legal system.
• Succession law involves the handing on of property from one generation to
another.
• In Malaysia, Muslims and non-Muslims are governed under different sets of
inheritance laws.

Cornell Law School. (n. d.). Unconscionability. Retrieved from www.law.cornell.
edu/ wex/unconscionability
Honey Tan Lay Earn. (2013). Measuring up to CEDAW: How far short are
Malaysian laws and policies. Retrieved from http://wccpenang.org/wp-
content/uploads/2013/06/honey-measuring-up-to-cedaw.pdf
Orucu, E. (2008). What is a mixed legal system: Exclusion or expansion? Electronic
Journal of Comparative Law, 12(1). Retrieved from https://www.ejcl.org/
121/art121-15.pdf.
List of Cases
Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832.
Civil law system
Common law system
International law
National law
Private law
Public law
Theocratic law

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