The laws of Malaysia are classified into two types which are written law and unwritten law. Written laws are laws which have been executed in the constitution or in legislation. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions.
The written law refers to the laws contained in the Federal and State Constitutions, code or statute. The written laws are altered by English laws just as the Malaysian legal system contains many characteristics of the English legal system (Jomo and Wong, 2008).Written law consists of Federal Constitution, State Constitution, Legislation and Subsidiary legislation.
There are two forms of constitution involves in Malaysia which is Federal Constitution and State Constitution.
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Besides, English law can be found in the English common law or rule of equity. Under civil law Act 1956, section 3, In Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administered in England on the 7th day of April 1956 where English law are applicable (Kozuka, n.d.). In Sabah and Sarawak, the courts only will apply the common law of England with statutes of general application as administered or enforced in England on the 1st December 1951 and 12th days of December 1949 respectively (Kozuka, n.d.). However, English commercial law also applies in Malaysia under section 5(1) of the Civil Law Act 1956 that the principles of English commercial law as they stood on 7th April 1956 shall be applicable in Peninsular Malaysia except for Penang, Malacca, Sabah and Sarawak in the absence of the local laws (Kozuka, …show more content…
It is a decision made by judges on written and unwritten law on relevant issues in an actual case that comes up before them. It may bind others in the similar dispute in the future. The decisions are reported and can be source from Authoritative Law Journals. Judges decided cases following certain accepted principles termed precedents (Black and Bell, 2011). Precedent can be defined as the source of law on determining later cases involving similar facts or issues. Generally, a judge is bound to follow the decision of a previous judge in similar circumstances. A judge’s decision in an earlier and similar case constitutes a precedent, and if that precedent comes from a court superior in the hierarchy to the court in which the present case is being tried, that precedent must be followed. Precedents are decisions reached by their predecessors in earlier similar situations. The types of precedents are Authoritative Precedent, Declaratory precedent, Original precedent, persuasive precedent, distinguishing and overruling. The essence of this doctrine is called Doctrine of ‘Stare Decisis’.
The custom of the local inhabitant in Malaysia is also considered as unwritten law. Generally, customs related to family law such as divorce, marriage, and inheritance are given legal force by courts in Malaysia. In Sabah and Sarawak, native custom matters applied in land dealings over native customary lands and family matters
The two forms of traditional Aboriginal law were ‘sacred’ and ‘secular’ laws. Sacred laws were entrusted to the elders, teaching Aboriginal customs, acceptable behaviour, and adequate use of the land. Secular laws focused on the responsibilities of individuals. There were also ‘secret’ laws and different people...
The legal Model is the behavior of judges explaining the law while making decisions. Justices tend to make judgments based off past precedent. Judges subscribe to the legal model for public consumption. J...
Laws are objects that dictate how people act every single day, but laws are not just made easily with a flick of a wand, there is a specific and tough process to go through if a bill wants to become a law, which
Majority Opinion- Officially called the Opinion of the Court; announces the Court’s decision in a case and sets out the reasoning upon which it is based
An important point to keep in mind is that all binding decisions are initiated at the highest court at either the federal or state level. These decisions are precedent only in the jurisdiction where the court presides. Stare decisis refers to the practice of the courts adhering to previously rendered decisions. This is especially true involving United States Supreme Court decisions that have binding authority on both the federal and the state courts. Remember that court decisions in the same jurisdiction only have persuasive authority which is not binding.
of law that has been used to base his decision on. This is called the
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,
“A Binding Precedent is a decided case which a court must follow even though it is considered to have been wrongly decided…” (Terence Ingman, 2002, Page 420). “A Persuasive Precedent is one which is not absolutely binding on a court but which may be applied” (Terence Ingman, 2002, Page 420) Bromley London Borough Council V Greater London Council (1982), Searose Ltd V Seatrain (UK) Ltd (1981). There are certain elements that Judicial Precedent is dependant upon, they are that the material facts of the case must be the same, the principle must be a proposition of law, it must form part of the Ratio (see below) and that there has to be sufficient and accurate reports of earlier decisions.
There are different types of precedent; original, binding and persuasive. Original precedent is a point of law where a new case that hasn't been decided on in the past. In these cases the judge would look at cases that appear closest, the judge would use the case to reason by. analogy. The.
Legal Pluralism is the presence of various legal systems within a single country or a geographical area. Legal Pluralism is omnipresent although it is generally assumed to exist in countries only with a colonial past. This is because in most countries with a colonial past, colonial laws co-exist alongside indigenous laws. However, if we look at the expansive definition of legal pluralism, it can be said that every society or country if legally plural. The modern definition of legal pluralism also deals with the issues of relation between state and non-state legal orders. It shows the dichotomy that exists between customary legal norms and state law. The judiciary of India has upheld this principle of pluralism in many cases by showing that
Malaysia was once a colonized land and known as Malaya back then. Malaysia is one of the Commonwealth countries, which means Malaysia was one of the British colonies.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
Patent protection in Malaysia is governed by the Patents Act 1983, and is obtainable by either or filing a direct national application or entering the national phase of a Patent Cooperation Treaty (PCT) application. There are two patent classifications that an applicant can choose upon application, the standard patent or design patent and the utility patent.
According to Reference.com (2007), law is defined as: "rules of conduct of any organized society, however simple or small, that are enforced by threat of punishment if they are violated. Modern law has a wide sweep and regulates many branches of conduct." Essentially law is the rules and regulations that aid in governing conduct, handling disputes, and dealing with criminal actions.