Unwritten Law Analysis

The laws of Malaysia can be divided into two types of laws—written law and unwritten law. Written laws are laws which have been enacted in the constitution or in legislation. Written law refers to the law embodied in then Federal and State Constitutions and in a code or a statue including subsidiary or delegated legislation. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions. This is known as the common law or case law. Unwritten laws are usually in the form of Common Law and the Rules of Equity.

1b)Two sources of written law

The Federal Constitution, which is the supreme law of the land together with the constitutions of the thirteen States comprising the Federation.

Judicial decisions are decisions in point of law by judges of the High Courts that have not been reversed or overruled by the superior courts and decisions of the Court of Appeal and Federal Court. A legal ruling of a superior court binds all inferior courts. These judicial decisions serve as precedents to decide cases before the courts and to that extent these judicial decisions serve as laws. Another source is customary laws. Customary laws in Malaysia play an important role in the day to day life of the average Malay. Customary laws, which are called adats, bind people, maintain social identity and build cohesion in

While the decisions of lower courts or courts in other jurisdictions can never be binding, they can certainly influence the decision of a court. Judges can examine the precedents established in these courts for guidance and information. They may study the precedent of an inferior court or a court in another hierarchy or they may develop a new precedent that is informed or shaped by these persuasive precedents. There may be no scope for a persuasive precedent if there is a binding precedent that must be applied. A court can only choose to follow a persuasive precedent if no relevant binding precedent exists in its own hierarchy. The case which could be referred is R v R [1991] where the Court of Appeal decided that a man could be guilty of raping his wife and the House of Lords followed the same legal reasoning and agreed with the Court of Appeal’s decision although the House of Lords being higher in the hierarchy than the Court of Appeal were not bound to follow the