Unwritten Law

2. Unwritten Law

Unwritten is the law that enacted by the legislature and not found in the written Federal and State Constitution. It is comprises the judicial precedent, common law and equity and customary law. Judicial precedent is the decision of the higher courts in previous cases must be followed by the lower court. The doctrine of judicial precedent has two ways of operation which is vertical and horizontal. Vertical means a courts is bound by the prior decisions of a higher court and horizontal is some court are bound by their own prior decision and prior decision of a court of the same level, weather past or present. There are also some categories of judicial precedent which is binding and persuasive. Decision of courts outside the Malaysia judicial hierarchy are not binding, all decision of higher courts bind the lower courts.

Next, Comman law and equity is also known as English law. Common law is unwritten or unenacted law of England, the law based solely on decisions of the court. Equity

It prescribes behaviour that has been found to be beneficial as means of generation harmonious interpersonal relations and to solve conflict. There are some customs of local inhabitants such as for Malay is Adat Temenggung and Adat Perpatih, for Chinese is Chinese Customary Law and for Indian is Indian Customary Law. The customs of local inhabitants have been accepted as law by the court. For example, case Munah and Isam [1936] MLJ 42 which is related with Adat Perpatih. The land is own by Tiga nenek clan. Then, the land had bought by Haji Ahmad. One day, the land had transfer to Munah. Munah is the member of nenek clan. The others day, Isam the daughter of Haji Ahmad claim the land. Haji ahmad give Isam RM500 as the change of land. Isam is not satisfied and brought this to the court. The court held that the land to be returned to the rightful