It is important because rules need to be established in case someone breaks them (and people tend to). If they aren’t written, smooth-talkers will be able to talk their way out of punishment while less charismatic people will be punished more severely, and some judges will be far kinder than others (warning versus jail term). It is also harder to say “we need to punish domestic crimes more severely” when there is no set rule or punishment. Simply put, written laws are required to keep the rules and punishments universally fair.
Fairness is very important in society, mainly because people expect it from those who are supposed to be governing them. If people feel something is unfair, they can react rather violently, and it may even split up the society into factions. If you write it down, then people can’t lie about it or make mistakes in remembering it. Generally, writing things down as a part of the lawmaking process gets everyone to understand what the law actually says. There’s a story of the five blind men and the elephant.
Each touched the elephant and reported that the elephant was a rope (tail), a tree trunk (leg), a fan (ear), a serpent (trunk) or a house (body). Oral recitations of the law can become like that. Importance of unwritten lawBut, even ofrulesofdecision, thesmallestpart is the result of State action. Everysort ofprotectionof rights by the State begins with enforcing the payment of compensatorydamages, which in primitive times the injured party sought to recover on his ownauthorityand by his own power.
At the moment when the judgment of acourtis substituted for this primitive self-help, there are no rules ofdecisionin existence except those flowing from the verynatureof the social organization. In other words, they are derived from such sources as the nature of property in the form it assumed directly under the conditions of primitive ownership; also from the nature of those associations which are of so much importance in primitive society, like the clan, the family, the community, the guild; from the customary subject-matters and forms of the most ancient contracts, and the
primitive forms of intercourse, which are mostly older than anysort oflegalprotection. Decisions are first preserved by oral tradition, then written down, collected, commented upon, generalized, and at last codified. Thus arise those peculiar systems of law in the special keeping of lawyers, which are, in many different forms, characteristic of the early times of all the nations of the world. They arelegal scienceand legal ruleall in one, like the old “jus civile” of the Romans which still lives, unchanged in essentials, in the writings of the classical Roman jurists and the great compilation of Justinian.
The decisions, therefore, are not based on the rules of law, but the rules of law are deduced from the decisions. The law on which the decisions are based is the “jus quod est. ” Paulus, who could still observe the actual working of a living law of this kind, puts what he has learned in actual experience tersely into the famous maxim: “Non ex regula jus sumatur, sed ex jure quod est regula fit. ” The decisions are older than the rules, – the law of the lawyers older and incomparably richer than the law of legislatures.
Explain the sources of Malaysian Legal System. In different country, there are different types of legal system. Some county practices a the mixture of two or more legal systems which is known as mixed legal system while some country practices only one type of legal systems. Malaysia practices the mixed legal system which consists of the Customary Law, Islamic Law and Common Law. The sources of Malaysian legal system law are from two different laws which are the Written and Unwritten law.
In Malaysian Legal System, the most important source of law is the Written Law which comprises of The Federal Constitution, State Constitutions, Legislation and Subsidiary Legislation. In another word, Written Law refers to the law stated in the Federal Constitutions which is the supreme law of Malaysia and it enshrines the basic or fundamental rights of the individual. The Federal Constitutions also stipulates the “Yang di-Pertuan Agong” who owes his position to the Constitution and act according to it.
If the total number of members of the legislature and there is two-thirds of majority of it, the Constitution can be change. The Federal Constitution consists of many Articles prepositioning religion of the federation, welfare of the aborigines and other connected subjects. Besides the Federal Constitution, every state has their own constitution controlling the government of that state which is known as the State Constitution.
The provision comprises the Ruler, the Executive Council, the legislature and other related subjects like the Legislative Assembly, financial provisions, state employees, and amendment of the Constitution. Delegated Legislation is a legislation made by individual or bodies under powers given on them by Act of Parliament. It is important because the legislation made by Parliament and the state is not enough to give the laws needed to govern everyday matters. Another source of Malaysian legal system law is the Unwritten Law which… [continues]