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CHAPTER 1 - NATURE OF LAW

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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 layman’s perspective, law is simply understood to be a general rule of conduct in regulating human’s

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.

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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?

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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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This ‘legal theory’ was developed from the time of the ancient Greeks up until the 16th or 17

th 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 man’s 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 theorist’s 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 man’s 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 man’s 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 law’s purpose in helping people to realize them). This provides a clear connection between moral

philosophy and legal philosophy. Whether one’s description of law is correct or not will ( in part, but very

significantly) depend upon whether one’s moral views are correct, for one’s moral views will inform the way

in which one conceives of the project of law.

Lon Fuller

Fuller’s 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 authority’s 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

husband’s 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 husband’s 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 Dworkin’s theory, contrary to Hart’s 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).

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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 Elmer’s case is a believer of Hart’s 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 Dworkin’s 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.

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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.

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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 jurisdiction’s 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.