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Faculty of Law University of Malaya

LXEB 1113 (Law and Society)


Presented by Date of presentation Tutor Topic : : : : Muhammad Azrie Johari Bin Jamil (LEB 120060) 15th October 2012 (6th week) Ms. Sik Cheng Peng (Group 3) Evolution of Legal System

Questions:
1. What are the differences between the current legal system and former legal system?

In order to differentiate between the current legal system and the former legal system, there are 4 categories that must be consider which are sources of the law, structures of the legal system, legal actors within the system and the enforcement of the law. The basis and foundation of law is basically the sources of the law itself. The origins of the law determine the validity and the acceptance of that law by the society. Nowadays, law are made in a formal procedure and by formal bodies created by the state1. Most states have a body known as legislatures that are elected by the people in order to enact laws. These legislatures enact laws under a formal and strict procedure in order to make sure it is valid and acceptable by the people. Moreover, laws made nowadays are in the form of codified and known as written laws. For example, Malaysia has a legislature which known as Parliament that contain 2 house which are the House of Representatives and Senate. The members of the Parliament are either elected by the people or appointed by the Yang di-Pertuan Agong. In order to enact any laws, the Parliament must follows the procedures that are contain within the Constitution of Malaysia. Laws then must be gazette by the government in order to make sure the people aware of it and thus making the laws as valid. The current sources of law are different from the former ones. Before this, the laws made are not made by formal bodies. Most of the laws were made by the leader of a community or the head of tribe. It was also based on
1

Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall.

customs, traditions and also values that are inherit from their ancestors2. The laws were not codified and made by informal procedures, therefore were not considered as written laws. Secondly, the differences of the former and current legal systems are based on the structures. The judicial systems or the courts currently are more formalize and systematic compared to the former legal system. There is level of hierarchy in court and there are clear guidelines on the responsibilities and power of judges. Moreover, the legal systems are not only compromise laws and judiciary but it also involves the government and the authority that governs the state. Therefore, the governmental system or executive are also one part of legal system. The current governmental systems are more systematic and formal. The leaders are elected by the people through election under what is called as democracy. This is difference from the former system where before this, there were no systematic judicial system and the members of the government were choosen by the leader. The leadership in former governmental system was inherited through bloodline or family3. The next difference that can be seen is the legal actors within the systems. Legal actors are mostly people that involve directly with the laws such as lawyers and judge4. Before this, there are no specific roles on these legal actors. There were no formal judges or lawyers. The judges usually were the leaders of the tribe. Nowadays, the judges are formally appointed based on their experiences and credibility in the legal aspects. Lastly, the fourth category is the enforcement of laws. Enforcement is an important part in legal system as it making sure that the people obeys and follows the laws made by authorities. In the current legal system, there are many formal agencies created to enforce laws. These formal agencies did not exist before as it was not important by the leaders during that periods.

2. Are these differences parallel with the changes in society?

Law and society are very connected. Since the laws are made to control and at the same time to provide benefits for the society, therefore laws must be flexible towards the changes
2

Husin, Iza. (2007). "The Pursuit of Perak Regalia: Islam, Law and the Politics of Authority in Colonial

State". Law and Social Inquiry 32:3.


3

He, Weifang. "The Judicial System and Governance in Traditional China". The Rule of Law: Perspective

from the Pacific Rim. pp. 93.


4

"Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective

(2007). pp 226.

within the society. Good laws are when it is fully beneficial towards the current society. Therefore, it is very important for the laws to be parallel as the changes in the society. In my point of view, the current legal system does parallel with the society as it change due to the changes in society. There are 3 reasons where the legal systems are seen to evolve due to the changes in society which are the complexity of society, the population and also development in knowledge and technology. In the terms of complexity, it is very important for the laws and the legal system to evolve and changes in order to provide solutions and guidelines to the society on conducting their daily life as to prevent any disputes between the members of society. Since the society become more complex, a more formal and systematic legal systems that compromise the judicial system, the legislative and the executive are needed. Law enforcement become an important part and must be created. For that reasons, the legal systems had changed and evolve nowadays in order to provide a better guideline for the society. Secondly is in the terms of populations. Recent research stated that the current world population are 7 billion and keep increasing every single day. In order to administer a society that consist for thousands and even millions of people, a more systematic and formal legal system are needed. Moreover, more specific roles or legal actors needed to be created in order to provide a better systematic legal system. Therefore, due to the increase in populations, more specific roles of legal actors are creates such as lawyers, court officials and number of judges are also increasing over the time. Thirdly are in the forms of knowledge and technology. The development of knowledge within human civilization had allowed the laws to be divided more specifically into different types. Moreover, due to the creations of new technology, new laws are required to control the technology in order to prevent any dispute that may arise in the future5. 3. Contrast with the types of law and legal actors before and now.

The types of law are basically the separations of law based on its functions and connection with the society. Laws nowadays are differentiates specifically based on its function toward the society. The legal actor on the other hand is the persons involve with the legal system6 such as
5

Tams, Christian J and Tzanakopoulus, Antonios. (2010) "Barcelona Traction at 40: The ICJ as an Agent of Legal Development". Leiden Journal of International Law 23:4, pp. 782.
6

"Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective

(2007). pp 226.

court official and judge. In order to show the evolution of the types of law and the legal actors, the evolution must first be divided into 3 phases of the evolution of legal system which are the primitive period, transitional period and also the modern period. The primitive period is during the early period where legal system was beginning to be created. Laws during this period is not codified and basically based on the tradition and customs. There was no major separation on the types of law during this period. However, there were simple distinctions made between procedural and substantive law by the leaders of community at that period. In terms of legal actors, there are no formal structures on the legal profession. The judges and the leaders of tribes were usually the same person and laws were made by the leaders. Moreover, courts were just temporary and assembled only when there were disputes.7 During the second period which were the transitional period, the legal system starting to expand and evolve. This was the period where the government began to formed and the society began to became more complex. There were distinctions between the public and private laws due to the creation of small and more systematic government. Moreover, criminal laws were distinguish from torts where this can be seen as the beginning of separation between criminal and civil laws. Other than that, during these period the government and the leaders started to put their laws in a more codified method and thus created the civil law system. In terms of the legal actors, the courts began to be more complex and much systematic during this period. During this period also, a more formal body to legislate or make the laws began to be created. The police force was created in order to enforce the laws8. The current period or phase in the evolution of legal system is the modern legal system. In the modern legal system, there are proliferations or in other words diffusion of certain part within public and procedural laws which thus resulted on the creation of administration laws. Moreover, since the creation of laws that are based on legislatures are increasing, therefore it is said that there are increasing in the proportion of statutory laws over the common laws within the legal system. In terms of legal actors, the courts become an important entity within a society and a part of the society foundation. Moreover, the courts nowadays are more complex, systematic and formal compared to the other 2 periods. The administrations of judiciary compromise more legal professions and thus expanded the system to a broader area. In terms of enforcement,

7 8

Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall. pp. 42-43. Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall. pp. 43-44.

police and other agencies are created in a more formal and systematic procedures in order to fully implement the laws within the society9. 4. Do these changes or evolution facilitate better governance in the society?

There are many benefits that rise due to the evolution of legal system such as democratic society, enforcement of law and functions of law to make a better society. As we can see, the leaders nowadays are elected by the people and thus created a policy known as democracy. These in contrast with the former legal system where leaders are usually inherit the leadership by blood line. Moreover, since the laws are made by legislatures that are also elected by the people, it shows that the basis foundation of laws which is the source is determines by the people. Therefore, due to the evolution of legal system, the legal system which compromise the legislature and government are based on the people choice thus implement a better society in terms of leadership and control10. Secondly, due to the evolution of legal system, the enforcement of laws become more systematic and formal. There is more than one agency that is created in order to regulate the laws and make sure the society obey the laws. This helps to prevent more disputes that may arise due to the complexity of the society. The agencies also created in order to specialize in certain laws only and therefore provide grounds for them to focus on the matter where they are specialize in. Thirdly is the benefits gain by the society due to the more codified and formal laws. Since there are more formal and systematic structures of laws within the legal system nowadays, the society can refer to it in order to conduct their daily life and prevent any disputes. This will then in the future provide better societies that have broader knowledge in laws.

10

Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall. pp. 45 "Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective

(2007). pp 235.

Bibliographies
1. "Comparative Legal Systems". Encyclopedia of Law & Society: American and Global Perspective (2007). pp 225-31.

2. De Groot, Muriel and Vrielink, Mirjan Oude. (1998). "Legal Theory and Sociological Facts". Law and Philosophy 17:3, 251-70. Springer.

3. He, Weifang. "The Judicial System and Governance in Traditional China". The Rule of Law: Perspective from the Pacific Rim. 91-100.

4. Husin, Iza. (2007). "The Pursuit of Perak Regalia: Islam, Law and the Politics of Authority in Colonial State". Law and Social Inquiry 32:3, 759-88.

5. Tams, Christian J and Tzanakopoulus, Antonios. (2010) "Barcelona Traction at 40: The ICJ as an Agent of Legal Development". Leiden Journal of International Law 23:4, 781800.

6. Vago, Steven. (1998). Law and Society. 2nd ed. Pretice Hall.