Unwritten law does not mean that the law is literally unwritten. Judicial decisions for example can be referred in writing in judicial reports, as well as common English law. Unwritten laws are laws that are not enacted and are not found in any constitution. It comprises of English law (Common Law and Equity), judicial decisions and customs. The general law is a major part of many countries, notably the Commonwealth country. It is primarily composed of non-statutory law, which is an advance derived from the judgment given to the actual cases by the judge. The Law of Equality resolves disputes between people by reference to the principles of fairness, equality and justice. In these cases, nothing is done against the law by the parties to dispute, …show more content…
in section 3 (1) (b) and 3 (1) (c) of civil law act 1956 states that courts in Sabah and Sarawak have to use common-law and English equity together with the general application of statutes in force in England on the 1st of December 1951 (Sabah) and 12th December 1949 (Sarawak). Attention should be paid to the above mentioned dates as the courts are only bound by common-law and British equity and the general application of statutes (Sabah & Sarawak) which take effect on that date. As we know the principles of English law have grown since the following dates. But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same law as administered in England. Common law and law of equity in Malaysia should be developed and amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England. However, Malaysian government can set their own scope for the amended or repealed Common Law and Law of Equity in Malaysia. In case Jamal bin Harun v. Yang Kamsiah & Anor [1984] 1 CLJ 215, the court ruled that it was not binding but had a high influence …show more content…
Only the decision of the superior courts is source of law, as it is these court that decide on matters of law, whereas subordinate courts generally decide on matters of fact. The decision of Superior Courts namely as Federal Court, Court of Appeal and High Court. The judicial decision is based on ‘doctrine of binding precedent’. Precedents are the decisions made by previous judges in the same circumstances. There are two types of precedents. There are vertical and horizontal. Prelude mandatory is applied when the superior court decision binds to lower courts or superior courts bound by their own previous decision. However, the low court decision does not bind the superior court. The lower courts must refer to the mandatory precedents of superior courts. However, the superior court judge will differentiate the case before him and the cases that put the precedent and may decide not to comply with mandatory preceding if he considers that the compulsory precedent is unrelated to the case before him. From this, original precursors are formed. Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent. Persuasive first may be tied to lower courts if superior court judges choose to apply persuasive
Our appellate courts will be the ones making the policy, while our trail courts will enforce the policy, it appear that many of the lower courts have more discretion when enforcing the appellate court decisions. Why is this possible many are nonlawyers who do not possess the skills needed to read many of complex judicial decisions, and due in part the decisions of the higher courts as well. Many of the policy are available and the judges are anticipated to read them. When the lower court infers the higher courts decision is based upon different factors, such as the judges on personal policy, their background, alternatively the lower court judge will embrace the higher courts decision while others may not.
The legal system does not follow a precedent instead it deals with each case on the individual level. It
As the rule of law, it focuses on the equal treatment and absence
In a democracy, the rule of law defends the rights of citizens, upholds order, and bounds the power of government. All people are equal under the law. The rule of law. Martin Krygier, Professor of Law at the University of New South Wales, argues that there are four essential principles underlying the rule of law. They are universality of the scope of the law, clarity for all citizens, supportive and culturally appropriate institutions and an appropriate legal culture.
Throughout the history of mankind, society has defined itself by law and the order that law creates. “Laws are the binding rules of conduct or action which the vast majority of the society has to abide”. Justice on the other hand is rather an abstract concept. There is no right or wrong definition of justice, but is rather agreed upon the concept of being fair and equal. Many would assume that the sole purpose of law is to establish justice, which seems like a wonderful philosophical theory but is slightly difficult to follow.
[5] Common law works in a different way, the judges rather than the Parliament make common law or ‘judge-made law’. Considering criminal and civil cases, the judges take decisions based on the stare decisis principle (Latin “to stand by things decided”, the legal principle of determining points in litigation according to precedent [4]), deliver rulings and create precedents, thus applying the law to real life situations. Therefore, the value of the precedent is very high in the English Common Law system. The strengths of common law
It was revealed by a survey carried out by National Consumer Council how unhappy and unsatisfactory people were with the Civil Justice System. The main weaknesses identified were that the system being too slow, too complicated for ordinary people to understand and too outdated and costly. In the continued criticism of the system Lord Woolf was appointed by the government who came up with suggestions and solutions to overcome these problems. As a result Civil Procedure Rules came into force on 26th April 1999 introducing different reforms to the system. The rationale of the reforms was to avoid litigation and promote settlement between the parties at dispute.
The use of ECHR or European Convention on Human Rights in British courts before it was being incorporated into United Kingdom law is an example. UK and any other country which relies to the power of legislation, should always if possible do not conflicts with the international law. Therefore the supremacy of both laws depends on the acceptance if the municipal courts to the international law
Different judges will have different interpretation of cases; hence, they may bind a single case with various precedents making it more difficult to pass a judgment. In this type of situation even competent judges may find it complicated to decide on the ‘ratio decidendi’. Nevertheless, there are a lot of case laws and deciding which case law best appropriates to a case is not always an easy task, as it is time consuming and very stressful to find the most suitable precedent. Therefore, not only the doctrine of judicial precedent has the disadvantage of being complex, while the judges are discussing which case law to apply to a specific case, justice is at the same time being delayed.
The hierarchy of courts of Malaysia begins with the Magistrates’ Court, followed by the Sessions Court, High Court, Court of Appeal and finally is the Federal Court of Malaysia. There are generally two types of trials, criminal and civil. The jurisdiction of the courts in civil or criminal matters are contained in the Subordinate Courts Act 1948 and the Courts of Judicature Act 1964. Article 121 of the Constitution provides for two High Courts of co-ordinate jurisdiction, the High Court in Malaya, and the High Court in Sabah and Sarawak. Thus this creates two separate local jurisdiction of the courts – for Peninsular Malaysia and for East Malaysia.
This view is far from truth in view of the developed and changed character of international law today. It is incorrect to say that international legal system is without a court to decide international disputes. The establishment of the permanent court of international justice has rightly been reckoned as a landmark for the development of international law because though in international legal system was provided with judicial organ to resolve international disputes on the basis of judicial decisions. The greatest proof of its utility and importance is the fact that its successor, the international court of justice is based on the statute of the permanent court of international justice. It is true that the decision of international court of justice is not equivalent to that the municipal courts.
In the article entitled ‘Determining the Ratio Decidendi of the Case’ by Arthur L. Goodhart, I underwent a roller coaster-like journey on exploring the science behind the nature of a precedent in English law. Goodhart started with the attempt to explain the full meaning of ratio decidendi in the simplest terms. He referred to Sir John Salmond’s definition in which I have interpreted ratio decidendi as the principle of law that is found in a court decision and possesses the authority to be binding. Ratio decidendi should be distinguished from a judicial decision, as the latter is a wider concept and contains the ratio decidendi, whereas the former is a principle that carries the force of law. In another reference, Professor John Chipman Gray
Precedents have a great importance in court’s decision. • Legal Sources: They are known as the instrument through which legal rules, law or principles are established: Legislature: Legislature is an essential part of state established by the parliament consisting of elected officials. Members of parliament present the bill which after thorough discussion approve or reject it. If the bill is approved from parliament, then senates looks through it and approve it with consultation, and it becomes an act. All the acts passed by governing authority can be challenged through judicial
Law is present in our daily life and in everything we do. We cannot think a second without law. Whatever we can see around us everything is connected with the law. Sometimes we can see it and sometimes we cannot see but feel it. Law is not just a thing to obey for yourself but making a peaceful society.
In the said case, the counsel for the appellants tried to argue before the Court of Appeal that the decision in the case Rama Chandran v The Industrial Court of Malaysia & Anor was wrong. Because the court was heard in the Federal Court, the Court of Appeal disagreed. It was also