CHAPTER 1 - NATURE OF LAW

1.1 What is law?

Many efforts have been made to endeavor to provide a universally acceptable definition of law but with little
sign of attaining that objective.

PMS Hacker wrote:

The concept of law fulfills as central a role in jurisprudence as Kant claimed for the moral obligation in
ethics. No simple definition will satisfy us in the absence of a clear grasp of the ramification of the concept
throughout its domain and an acceptable criterion of adequacy.

From a laymans perspective, law is simply understood to be a general rule of conduct in regulating humans
behaviors. The Oxford English Dictionary defines law as the body of enacted or customary rules recognized
by a community as binding. In short, law may be defined as a body of rules which are enforced by a State.

It is generally accepted that it is not possible to provide a simple definition to the question of What is law as
law by itself is a complex subject and it overlaps with other fields of study such as politics, sociology and
history.

1.2 Jurisprudence
Jurisprudence is a field of study that consists of the study of the nature of law and its related ideas.

According to Julius Stone, a lawyer must have knowledge of other subjects such as history, sociology,
anthropology, economics and politics and then examine the percepts, ideas and techniques of the law in the
light of his knowledge of social sciences.

Some issues relate to the political moralities which impinge on our lives:a. Should the law enforce conventional morality?
b. How should difficult cases be decided?
c. What is the justification, if any, for punishing people?

Some issues are philosophical:a. What is law?

b. What is justice?
c. What is morality?

1.3 Some popular theories about the nature of law

1.3.1 Natural Law
Natural law means the law of nature, law as the emanation of the Divine Providence, rooted in the nature
and reason of man. It is often argued by natural jurists that law in action is not a mere system of rules, but
involves the use of certain principles, such as that of equitable and the good.
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th

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This legal theory was developed from the time of the ancient Greeks up until the 16 or 17 century. The
earlier natural law jurists include great philosophers such as Socrates, Aristotle, Stoics, Cicero, and St.
Augustine etc.

Classical natural law was a general moral theory which explained the nature of morality, not the nature of law
per se. It emphasized on mans common moral nature to the legitimacy of States. The essence of this legal
theory was that the law must be understood as a practical application of morality; hence law and morality are
intimately connected. Accordingly, much of natural law theory sought to show how legal authorities such as
princes, emperors, states and so on could lay down laws which reflected the true dictates of morality and
were, therefore, just.

However, this natural law theory produces many difficulties and controversies:

Morality is subjective as what is right thing to do for one is a wrong act for another
Abortion may be viewed by some as an essential human right while others think of it as tantamount
to a right to murder

Modern natural law theory is an attempt to sustain the natural law theorists project of exposing and
emphasizing the importance of the connections between law and morality, but which has to overcome the
above controversies. The most important jurists for this modern natural law theory are John Finnis and Lon
Fuller.

John Finnis

Finnis denies that the natural law tradition was founded on the derivation of ought from is. Rather, he says,
natural law theory is founded on mans ability to grasp values directly, not inferring them from the facts of the
world. According to Finnis, there are basic values that underline the human appreciation of the values of any
particular thing and all mans purposive activities. These values are life, knowledge, play, aesthetic
experience, friendship, religion and practical reasonableness. These seven values are not inferred from facts
about the world or man, but are appreciated directly by humans as valuing beings.

The essential claim that Finnis makes about law is that it is a social institution whose purpose is to regulate
the affairs of people and thus contribute to the creation of community in which all people can flourish, i.e. a
community in which everyone can realize the seven different basic values. In this way, the law is a moral
project. Therefore, in order to rightly describe the law, one must take the position of a person who examines
the law with this person in mind (i.e. the practically reasonable person who grasps the seven basic values
and the laws purpose in helping people to realize them). This provides a clear connection between moral
philosophy and legal philosophy. Whether ones description of law is correct or not will ( in part, but very
significantly) depend upon whether ones moral views are correct, for ones moral views will inform the way
in which one conceives of the project of law.

Lon Fuller

Fullers concept of the natural law was that a legal system is the purposive human enterprise of subjecting
human conduct to the governance of rules. According to Fuller a legal system had other purposes as well.
Whatever its substantive purposes are, certain procedural purposes had to be acknowledged as its basic
goals if the legal system were to qualify as a system of law, rather than a set of institutions using arbitrary
force. The way a legal system is set up must be able to satisfy the ultimate purpose of all legal systems, i.e.
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the governance of human conduct through the rules of law. The principles which specify the basic
requirements for a legal system to satisfy this goal are known as the inner morality of law or procedural
morality.

Fuller proposed that there are eight principles (i.e. procedural morality) of proper law making:
-

there must be rules

rules must be prospective and not retrospective

rules must be published

rules must be intelligible

rules must not be contradictory

compliance with the rules must be possible

rules must not be constantly changing

congruency between rules declared and authoritys action.

Thus all laws that were enacted in accordance and compliance with the above procedural morality are
rightfully considered as good laws.

1.3.2 Positive Theory

1.3.2.1 What is Positivism
Positive law signified law by position ie. the law is posited. Thus positive law may be thought to be posited
in the will theory: it was the expression of the will of the law giving supreme authority. Valid laws are viewed
as the expression of the wills of human people, as opposed to the manifestation of any greater purpose,
such as Divine will.

In this theory, law and morals are kept separate and there is no necessary link between law and morality.
The identification of legally valid laws is thus perfectly possible without reference to morality.

There are different types of positivist theories under this category.

1.3.2.2 Command Theory of Law

Jeremy Bentham and John Austin are the propounders of this theory. Here, law is defined as Law is
command of a sovereign backed by sanction or order backed by threat.

According to this command theory, every law should contain four elements:
(1) wish of a sovereign who is habitually obeyed
(2) sanction one has a legal duty or obligation to comply to the wish, otherwise he will be punished.
(3) expression of a wish
(4) laws are general in nature

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The command theory in essence regards the nature of law as based on the concept of power, exercised by a
political superior to a political inferior, and not on ideas which are perceived as good or bad or just and
unjust. Law is viewed as a species of command issued by a person or a body of people (sovereign) to whom
individual obedience was rendered.

There are many criticisms of this theory and it is said that the theory fails to explain the following:
a. the definition is too narrow and it fails to consider the complexity of law, for example it ignores the
concepts of right, legal principles, legal rules, interpretation of statutes by judges (judicial law
making) etc;
b. fails to differentiate between obliged to (a gunman in a bank forces us to hand over the money and
we will obey his order but unwillingly ) and under an obligation (when a taxman requests us to pay
the tax, we feel that we are under an obligation to obey the order and we will obey willingly without
any threat); and
c.

it may be quite accurate in explaining criminal law but not facilitative law such as contract law, law of
succession etc in which there is no sanction involved.

1.3.2.3 HLA Hart

Hart disagreed with the command theory and proposed that, where there is a law, the human conduct is
made some sense not-optional or obligatory. Thus the idea of obligation is at the core of a rule.

He is of the opinion that there are two types of obligations:

Obliged to do something because there exists a threat gunman

Under an obligation even without threat taxman

To Hart, law consists of legal rules (which are different from other social rules such as rules of club etc).
Rules are statements of accepted standards of behavior. He is of the view that people are rule governed and
not command driven. People in general feel a sense of obligation to obey the law (i.e. under an obligation).
They feel within themselves a sense of duty to act in a certain way without some external stimulus
compelling such action (i.e. a threat).

Hart categorized legal rules into two types:

Primary rule which is duty imposing rules, e.g. do not kill

Secondary rules which are power conferring rules
o Rule of change to change the law e.g. primary & secondary rules
o Rule of adjudication gives power to court to settle disputes
o Rule of recognition to identify which rules are law and which are not

Finally, law is the union of primary and secondary rules.

Rule of recognition is the ultimate rule which determines the existence and validity of all other rules in a legal
system. Although it is classified as a secondary rule, it lies at the heart of a legal system, because it is by
reference to it that any other rule can be classified as a rule of law. The rule of recognition therefore resolves
the problem of uncertainty as to the legality and validity of rules. It is by itself identified by determining the
formal criteria by which officials in a particular legal system decide which rules are valid rules of law.
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So, the rule of recognition may not be written down or even clearly set out as a singular rule. Indeed, it may
be a conglomeration of rules setting out the accepted formal sources of law in a society. Thus for example, in
Malaysia, the main part of the rule of recognition may be in the form:
Whatever the King-in-Parliament enacts is law

Grudge Informer Case

In 1944, a German woman, wishing to get rid of her husband, denounced him to the authorities for insulting
remarks he had made about Hitler while home on leave from the German army. The wife was under no legal
duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to
make statements detrimental to the government of the Third Reich. The husband was arrested and
sentenced to death, apparently pursuant to these statutes. However he was not executed but was sent to
the front. In 1949 the wife was prosecuted in a West German court for an offence which we would describe
as illegally depriving a person of his freedom. This was punishable as a crime under the German Criminal
Code of 1871 which had remained in force continuously since its enactment. The wife pleaded that her
husbands imprisonment was pursuant to Nazi statutes and hence that she had committed no crime.

The Court of Appeal held that the wife was guilty of procuring the deprivation of her husbands liberty by
denouncing him to the German courts, even though he had violated a statute as the statute was contrary to
the sound conscience and sense of justice of all decent human beings. Nevertheless her appeal was
allowed on other grounds.

The court in this case faced a dilemma:

(1) If the woman was to be punished, it would appear to be unfair to her as what she did was allowed by
law at that time;
(2) If the woman was let go unpunished, this might had been a bad thing to do as the statute was
obviously contrary to the sound conscience and sense of justice of all descent human beings.

What do you think should be the correct outcome?

1.3.2.4 Kelsen Pure Theory of Law

Kelsen was an American jurist who sought to define and identify the essence of law by providing a formula
which would enable him to exclude any factors which might obscure our perception of law. He believed that
the existence, validity and authority of law had nothing at all to do with non-legal factors such as morality,
politics, history, ethics, economics, aesthetics or any other social science. He therefore sought to identify the
essential elements which constituted the bare bones of law and would constitute a pure theory of law.
Thus the Pure Theory of Law undertakes to delimit the cognition of law against other disciplines in order to
avoid uncritical mixture of them.

Kelsen defined the law as follows:

A law is a despsychogized command, a command which does not imply a will in a psychological sense of
the term- a rule expressing the fact that somebody ought to act in a certain way, without implying that
anybody really wants the person to act in that way

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He regards the law as a system of heterogeneous rules, concerned primarily with the application of
sanctions to persons who have acted in certain specific ways. The law is constituted by norms(statements of
what ought to be), which inform officials of a state as to the instances when they may apply sanctions to
persons whose actions have fulfilled the conditions under which such sanctions must be applied. In short the
norms are statements to the effect that if such and such conditions are fulfilled, then such and such a
sanction shall follow. The function of theory of law is to organize them into a single ordered pattern and to
relate them in a logical manner.

Basically Kelsen believes that law is the primary norm (or legal norm) which stipulates the sanction. The
function of a judge is to interpret the law and apply the norm but he should not create a norm by himself
because that is the function of the legislature.

A norm is an ought proposition, a proposition in a hypothetical form - If you steal, then you ought to be
punished. The legal norm is a direction to an official to apply a sanction when certain circumstances arise.
Thus a norm is basically a rule stating that an individual ought to behave in a certain way, but not asserting
that such behavior is the actual will of anyone. For a norm to be valid a norm must be part of a system of
norms and the system must be efficacious. A legal system is said to be efficacious where the citizens obey
the law and the officials apply the sanction to those who do not obey the law.

A norm is derived from another norm and at the top of the hierarchy is the basic norm or grundnorm. For
example a by-law is enacted by the power of an enabling Act of Parliament which is passed with the
authority given by the constitution. Since the basic norm does not derive its validity from another norm, so it
is pre-supposed to be valid. Thus the grundnorm validates the first parliament which passed the first
constitution. Then subsequent constitution derives its validity from the earlier constitution until it reaches the
current constitution. The current constitution empowers the legislator to pass parliamentary Acts and
subsidiary legislation.

Grundnorm, according to Kelsen, is a presupposition and a friction. It only exists in jurists thinking. It does
not exist as a legal rule like other norms. It is not created in a legal procedure by a law-creating organ but it
is created to explain why a legal system is efficacious in the sense that people obey the legal rules.

1.3.3 Interpretive Theory Ronald Dworkin

In brief, Dworkin holds that legal reasoning is an exercise in constructive interpretation. The law is basically
what the judges say.

To Dworkin, law is about integrity. Function of a judge is to maintain integrity of the legal system. If the legal
system loses integrity then it will collapse. Therefore in order to maintain a valid and efficient legal system,
the judges must maintain integrity. The way the judges maintain integrity is to apply the law in its best moral
light, i.e. in adherence to the underline integrity already exist in the system. To do so the judge has to
interpret the law so as to reveal it as the most morally sound body of law it can be. Law must act in integrity
and to speak in one voice.

The integrity is like a base pattern and the function of a judge is to use the base pattern to decide cases
without deviating radically from the base pattern. Anything that fit into the pattern, i.e. possesses integrity is
law. In adjudicating the cases, the judge will apply the integrity to interpret the law so that it achieves the best
moral outcome.
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In Dworkins theory, contrary to Harts proposition, law is not made up of only rules; it also takes into
consideration principles, policies, doctrines and maxims.

Rules and Principles

Dworkin says that rules and principles are both standards but they differ in their nature. Rules operate in
all-or-nothing fashion. Either a case falls under a rule or it does not. There is no other way. A rule either
determines an issue or it has nothing to say on the issue. But a principle does not dictate an answer as does
a rule. A principle merely follows a direction, or merely gives a reason. For example, the legal rule that no
one may profit from his own wrong does not lay down that no person would be permitted to profit from his
own wrong.

An example is the case of Riggs v Palmer (1889) or known as the Elmer Case. Elmer murdered his
grandfather by poisoning him in New York in 1882 as he was suspicious that his grandfather might change
his will because of remarriage. Under the will, Elmer was to inherit the bulk of the estate. Elmer was
eventually convicted and sentenced to jail. The question now should Elmer be allowed to inherit the
property under the will? The New York Statute of wills did not disinherit a murderer. However the court
decided that Elmer must not be allowed to profit from his own wrong. Dworkin opines that the decision
proceeded not on rule (that a murderer is allowed to inherit) but on a principle (that no one should benefit
from his own wrong).

1.4 The Importance of Legal Theory

What is the practical significance of studying various types of legal theories?

The most important impact is that, if a judge applies different legal theory when adjudicating a case, it will
yield different results. For example, if the judge in the Elmers case is a believer of Harts theory, then the
murderer will be able to inherit the property notwithstanding that he had murdered the victim. On the other
hand, if the judge is a firm believer of Dworkins interpretive theory, then the murderer will not be allowed to
inherit the assets.
In summary, the positivists do not apply equity in their adjudication while the followers of natural law and
interpretive theory will be more willing to exercise the discretion under the equity.

1.5 What is the law?

This question must be differentiated from what is law?

Let us look at this scenario.

A businessman who recently received a consignment of flick-knives is concerned that the police may take
action if he were to display and sell these flick-knives to the public and asks you for advice. The question
now how can you find out if she would be breaking the law? Obviously you need to know the law relating
to flick-knives, displaying them in shop window etc. How do you go about this?

It is easy to assume that the law can be found in one book; that somewhere there is a book which will give
you the answer to every legal question you might pose. If this were true there would be little need for
lawyers. Clearly it is not true. So a fundamental legal skill must be the ability to find the law.
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To answer this question, we must understand the sources of law so that we can find them. Generally the
laws can be identified by the fact that they take a form which distinguishes them from those social
conventions or social rules. Their form tells us that they are derived from an institutional source that is
socially recognized as having the power to create law. Only laws so created can be said to be legally
binding upon the individual, or even upon the state itself.

In Malaysia, there are 3 main institutional sources of law: written law made by Parliament, English principles
of law and judicial decisions. We shall deal with these in more detail in subsequent chapters.

1.6 Classification of Law

1.6.1 Introduction
There are many ways to classify the law, either as per contents of law, as per sources of law or as per
relationship between parties.
The more commonly adopted ways is to classify the law as per relationship between the parties and it can be
categorized into three groups:

Public Law
International Law
Private Law

1.6.2 Public Law

Public law is the sector of law that governs the relationship between individuals (such as citizens and
companies) and the State.
Public law can be divided into 3 sub-divisions:1.6.2.1 Constitutional Law
This deals with the relationship between individuals and the State and the relationship between different
branches of the State such as the Executive, the Legislative and the Judiciary. All these relationships are
normally specified within a written constitutional document.
1.6.2.2 Administrative Law
Administrative Law refers to the body of law which regulates the administrative procedures of the
government and its agencies and it defines the powers permitted by the administrative agencies. These
laws are enforced by the executive branch of a government rather than the judicial or legislative branches.
This body of law regulates trade, manufacturing, pollution, taxation etc.
1.6.2.3 Criminal Law
This involves the State imposing sanctions for certain crimes committed by individuals and companies. The
government will pre-define what types of acts are crimes with the objective of maintaining peace and justice
in the society. Criminal law codifies various types of offences committed such as murder, causing bodily
harm, rape, cheating, theft, robbery etc. The purpose of imposing sanctions against the individual who
commit the crime is to suppress the crimes and to prevent recurrence.

A crime is a wrong against the State for which punishment is inflicted by the State and the committed
proceedings are brought by the Public Prosecutor on behalf of the State.

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1.6.3 International Law

International law is the term commonly used for referring to the system of law that regulates the
interrelationship of sovereign states and their rights and duties with regard to one another. International law
deals with such matters as the formation and recognition of states, acquisition of territory, war, the law of the
sea and of space, treaties, treatment of aliens, human rights, international crimes and international judicial
settlement of disputes.

It may be sub-divided into 2 categories:

Public international law

Private international law

1.6.3.1 Public international law

This is the law that deals exclusively with the relationship between sovereign states.
1.6.3.2 Private international law
This is also known as Conflict of Law and it establishes rules for dealing with cases involving foreign
elements, i.e. contracts with some system of foreign law. Basically it governs resolution of dispute and
conflict between private persons, rather than states. Generally it concerns the questions of which jurisdiction
should be permitted to hear a legal dispute between private parties and which jurisdictions law should be
applied.

1.6.4 Private Law

Private law, also known as Civil Law, is that part of a legal system that involves relationships between
individuals. It is concerned with issues that affect the rights and duties of individuals among themselves.
Basically private law is designed to provide monetary compensations to persons injured, either physically or
monetary by another and to enforce obligations. The concept of private law in common law countries is a
little more broad, in that it also encompasses private relationships between government and private
individuals.

Type of law that falls under this category is:

Law of Contract
Law of Tort
Property Law
Law of Trust
Family Law
Commercial Law
Employment Law
Company Law

and so on.

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