TSU 0714

LAW AND SOCIETY

SEM II (2023/2024)

TOPIC 1 Nature of Law and Society

1.1 Introduction
1.1.1 Overview of Law and Society
1.1.2 Definition of law and Society
1.1.2 Types of Law
1.1.3 Types of Society
1.2 The Relationship Between Law and Society
1.3 Nature of Law
1.3.1 Introduction
1.3.2 Natural Law View
1.3.3 Positivism View
1.3.4 Realism View
1.3.5 Sociological View
1.3.6 Islamic View
1.4 Nature of Society
1.4.1 Introduction
1.4.2 Consensus Society and Conflict Society
1.4.3 Society in Malaysia
1.4.4 Main National Policies
a) New Economic Policy
b) National Development Policy
1.5 Social Function of Law
1.5.1 Introduction
1.5.2 Social Control
1.5.3 Social Change
1.5.4 Conflict Resolution
1.5.5 Facilitative Function
1.5.6 Social Engineering
1.5.7 Social Welfare
1.1 Introduction

1.1.1 Overview of Law and Society

• Law and society are the field of study that involves the many relationship between; and the effect of
law on, the social science and humanities.
• Law and Society emphasizes the complexity and interrelationship of legal, social, and ethical issues.

1.1.2 The Definition of Law and Society

• There is no simple answer to define the definition of law and society.
• There are various definitions of law:
a) Law according to Aristotle are “by 'particular' law I mean that which an individual community lays down
for itself; and by 'universal' law I mean the law of nature. For there is a natural and universal notion of
right and wrong, one which all men instinctively apprehend.”
b) John Austin define law as “law is a command from the sovereign person or body in the political society
to a member or members of society”.
c) According to Blackstone law can be define as “Law is a rule of civil conduct prescribed by the supreme
power in a state, commanding what is right, and prohibiting what is wrong”.
d) Friedmann in ‘Law in a Changing Society (1959)’ laid down the law as “Law is ‘not a brooding
omnipresence in the sky,’ but a flexible instrument of social order, dependent on the political values of the
society which it purports to regulate.”
e) According to Gray, the Nature and Sources of the Law (1921), law is “the law of the state or any
organized body of men is composed of the rules which the courts, that is, the judicial organs of that body,
lay down for the determination of legal rights and duties.”
f) Hoebel in ‘The Law of Primitive Man (1954)’ defines law as “a social norm is legal if it is neglect or
infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group
possessing the socially recognized privilege of so acting.”
g) Law according to Stuchka, in Soviet Legal Philosophy (1951) “law is a system (or order) of social
relationships which corresponds to the interests of the dominant class and is safeguarded by the organized
force of that class.”

• Meanwhile society generally can be defined as a large group of people who live together in an organized
way, making decisions about how to do things and sharing the work that needs to be done. All the people
in a country, or in several similar countries, can be referred to as a society.
• The term society is derived from a Latin word “societas”. The literal meaning of societas is friend —ally
or comrade. The term was used to define the bond between parties who were civil and friendly with one
another.

1.1.3 Types of Law

a) Private Law v Public Law

Private Law
• Private law refers to the body of legal doctrines and rules that govern the relationships between private
individuals.
• It covers a number of key areas of law: contracts, property, equity and trusts, torts, succession and
family law are the most important.
• While many of the basic principles of private law derive from judge-made common law, private law is
increasingly in the form of legislation that builds upon, or restructures, the common law.
• Many relationships governed by private law are of an intimate nature such as family relationships, but
private law also extends to commercial and financial relations.

Public law
• It is to be contrasted with Public Law, which covers the relationship between the state and the individual.
• Public law is important because of the unequal relationship between the government and the public.
• The government is the only body that can make decisions on the rights of individuals, and they must act
within the law.
• A citizen can ask for judicial review if they are unhappy with a decision of an authoritative body.

b) Civil Law v Criminal Law

Civil law
• Civil law alludes to the system of rules and regulations, which describes and safeguards the rights of
the residents of the country and provides legal remedies to a dispute.
• It includes cases relating to private matters such as property, contracts, torts, family dispute, etc.
• The party who files the suit is called plaintiff, while the party who responds to the suits is known as a
defendant and the entire process is termed as litigation.
• The basic objective of the civil law is to seek redressal (act of correcting) of the wrongs, by imposing
compensation on the wrongdoer rather than giving punishment.
• The wrongdoer bears only that extent of the damages, which are required to make good the wrong done
to the aggrieved party.

Criminal law
• Criminal Law can be understood as the set of rules and statutes, that highlights the conduct or act
prohibited by the state, as it violates the intention of the law, threatens and harms public and welfare
safety.
• The law does not only define the crimes but also specifies punishment to be imposed for the commission
of a crime.
• The primary objective of criminal law is to penalize the person who committed a crime, for the purpose
of communicating a message to him/her and the entire society, not to commit the crime, or else, the act
they committed will attract retribution.
• When one commits an act, which is not permitted by law, he/she risks prosecution.
• In criminal law, firstly the complaint is registered (reported) with the police, regarding the crime, after
which the police investigate the crime and files criminal charges.
• The aggrieved party can only report a crime, but the charges can only be filed by the government, who
is represented by the prosecutor in the court of law against the defendant.
c) Sharia law v Civil law

Sharia law
• Sharia is a religious law that dictates practices of all Islamic believers. In addition to directing Muslim
believers, Sharia’s code of ethics dictates practices in most Islamic communities and countries.
• These laws clearly define acceptable practices in marriage, divorce, living beliefs, business dealings
and other moral conditions encountered by members of the Islamic religion.
• It is important to note that, although Sharia law manages most practices in Islamic believers, sometimes
they affect other civilians of such nations.
• This is because in areas where Sharia’s set of rules find wide application, its influences are many on the
patterns or ruling, criminal, and personal status laws.
• Sharia law primarily originates from the Islamic holy book: the Quran. However, it is important to note
that, some sections of the Sharia law find their foundation from the Islamic sayings book, the Sunna.
• These two books carry the Islamic teachings and sayings of Prophet Mohammed addressed to all
Muslim believers internationally.

Civil law
• Civil law unlike, Sharia law is not religion based, however they share one common goal: achievement
of a peaceful society that thrives within specific standards and conditions.
• Achievement of peaceful co-existence of individuals is never an easy task owing to the fact that the
society carries individuals with different qualities, political orientations, and social lives.
• Owing to this fact civil law tends to ignore all individual’s sole qualities, hence defining boundaries, which
all individuals must base their daily practices.
• This law’s main goal is to solve fights that may occur among different individuals or organizations as
concerns property ownership, economic exchanges and disputes that may require compensations.
• That is, civil law’s main aim is to provide a set of laws that all judges must follow in trying to ensure
courts achieve justice.
• Examples of disputes solved by civil war include accidents, property ownership, and family issues.
• This form of law follows almost same principles as the Roman law, whereby it defines principles of
providing solutions to disputes considered complex to solve using common knowledge.
• The main sources of civil law are the legislature, hence making the court system to have special
practitioners who help in solving civil cases.
• In addition, this law makes court procedures inquisitive, hence not controlled by precedents.

d) Substantive law v Procedural law

Substantive law
• Substantive law is used to mean the written law that states the rights, duties and liabilities of the citizens
and collective bodies. It is the system of rules that regulate the behavior of the citizens of the country. It
is generally codified in statutes but can also be found in common law.
• Substantive law is concerned with the substance of the case. It either helps in suing someone or
defending a person from legal proceedings.
• It is that part of the legal system which differentiates between right and wrong conduct and personifies
the idea that committing the crime will lead to penalty or punishment or both (as the case may be) to the
wrongdoer.
• The example of substantive laws: tort law, contract law, medical law, company law, family law, insurance
law, Islamic family law, consumer law, criminal law and Islamic finance law.

Procedural law
• The procedural law can be defined as the law which governs the way in which court proceedings are
undertaken. Simply put, it explains the methods and practices, that are followed in the court for a case,
i.e. the gradual phases of the lawsuit that will take place and the way in which case is managed in the
court. So, it describes the series of steps taken in civil, criminal and administrative cases.
• As procedural law determines the procedure of all lawsuits, it complies with the due process.
• Due process pertains to the person’s legitimate right to have legal proceedings if he/she is sued.
• The procedural law determines the means of imposing rights and providing remedies to wrong.
• It consists of rules concerning jurisdiction, pleading, appealing, presenting evidence, executing
judgement, cost and the like.
• The examples of procedural law: Civil Procedures Code, Criminal Procedure Code, Rules of Court and
Limitation Period Law.

1.1.4 Types of Society

a) Preindustrial Society
• Before the Industrial Revolution and the widespread use of machines, societies were small, rural, and
dependent largely on local resources. Economic production was limited to the amount of labor a human
being could provide, and there were few specialized occupations.
• Pre-industrial society refers to social attributes and forms of political and cultural organization that were
prevalent before the advent of the Industrial Revolution, which occurred from 1750 to 1850.
• Pre-industrial is a time before there were machines and tools to help perform tasks in mass production.
Pre-industrial civilization dates back to centuries ago, but the main era known as the Pre-Industrial
Society occurred right before the industrial society.
• Pre-Industrial societies vary from region to region depending on the culture of a given area or history of
social and political life. Europe is known for its feudal system and Medieval era.

b) Industrial Society
• An industrial society is one in which technologies of mass production are used to make vast amounts of
goods in factories, and in which this is the dominant mode of production and organizer of social life.
• This means that a true industrial society not only features mass factory production but also has a
particular social structure designed to support such operations.
• Such a society is typically organized hierarchically by class and features a rigid division of labor among
workers and factory owners.

c) Post-industrial society
• A post-industrial society is a stage in a society's evolution when the economy shifts from producing and
providing goods and products to one that mainly offers services.
• A manufacturing society is comprised of people working in construction, textiles, mills and production
workers whereas, in the service sector, people work as teachers, doctors, lawyers, and retail workers.
• In a post-industrial society, technology, information, and services are more important than manufacturing
actual goods.

1.2 The Relationship Between Law and Society

• To answer what is the relationship between law and society is not an easy task because it is difficult
question and no easy/simple answer.
• It is important to understand the concept of law and society in between the law and the society itself.
• In the context of its relationship to society, law denotes a set of defined principles that govern and
regulate human behavior.
• In our complex society, law regulates our social, political, and economic activities from birth to death.
• Therefore, the law in society is relating every aspect of social life and affects us in everyday life.
• Law and society is related to each other whereby the law changed according to the change of society.
• Laws can change with time and according to location. For example, laws passed today might be quite
different from laws passed in 1867, especially with respect to women’s rights and equal opportunity.
• The law is an authoritative and reactive problem-solving system that designed to meet specific social
needs.
• For examples, laws restrict who we marry, who gets our money when we die, whether we can put a
swimming pool in the backyard, at what age we can purchase certain products, and even what
ingredients should be in our soft drinks.
• Laws permit us to live with other people in a safe and peaceful way. Disputes and disagreements are
settled in court, not in the streets. If two people claim to own the same car, they do not settle the matter
by dueling. Instead, the court decides on the rightful owner.
• In criminal law for instance, creates offences which offender who committed crimes can be arrested and
charged by the police and brought before criminal court.
• Furthermore, civil law concerns the relationship between citizen such as contract law dealing with
tenancy agreements, employment, insurance, land, business, family, education, and consumer.
• In addition, shariah law also cover every aspect of life for Muslim in particularly to embraces worship,
moral and conduct as well as political, social and economic as well as other spheres to achieve the
highest purpose of human creation is to servitude.
• Therefore, the law is part of the society in a wide view, so any rule or social norm that we are following
is seen as part of law.
• Everything in society is held together, governed and even constituted by law.
• The law play role to control the society for the sake of to maintain the peacefulness, therefore the
harmonious between law and society are necessary.

1.3 Nature of Law

1.3.1 Introduction
• Generally, law is a set of rules that govern the pattern of behavior in the given of society
• Beyond this there is disagreement regarding the nature, content and its function in society.
• There are number of factors that contributes to this disagreement for instance, law plays only one part
in society’s norms that regulates and influence human behavior.
• It is difficult to draw a line between law because the other factor influences the human behavior and
control the society such as moral and social prescription.

1.3.2 Natural Law View

a) Introduction and definition

• A great number of philosophers believe that there are certain higher principles that are superior to the
law made by man – the principles of natural law.
• Natural law is a philosophy that is based on the idea that “right” and “wrong” are universal concepts, as
mankind finds certain things to be useful and good, and other things to be bad, destructive, or evil.

b) Principles
• Natural Law theory is based on a human nature and experience that is both rational and creative.
• Generally, the theories of natural law according to Thomas Aquinas (1225-1274) ‘any man-made law
which is against natural is not a true law’.
• Furthermore, according to great English commentator William Blackstone (1723-1780) ‘rule look like law
and act like law but contradict with god’s law are simple not laws at all’.
• The principle of nature that natural law follow is ‘good is to be done and promoted, and evil is to be
avoided’.
 • This view of natural law attracted many criticisms because the principle that any law that does not
comply to natural law is not a law.
• The idea of which act, or behavior is amount to ‘good’ or ‘bad’ can be differ between people in the
society.
• The justification and objective of the act that amount to what is ‘good’ and what is ‘bad’ can be differ and
much complicated.
• The natural law theory pays particular attention to the concept of self-defense, a justification often relied
upon in an attempt to explain an act of violence.
• According to natural law, for instance the act of harm people like killing is evil act therefore should be
avoided and forbidden although the act of killing people as the act of self-defense.
• For example, according to natural law, the homeowner is not allowing to kill an armed intruder who
breaking the home although as the act of self-defense.
• The application of natural law in Catholic Natural Law for instance, presumes to be an articulation, first
of the nature of human reality and then of perennial ethical principles based on a universally valid
anthropology.
• Natural Law arguments are difficult to make in our post-modern intellectual environment.
• In a post-modern vision, there is no objective and structured human nature which is accessible to human
reason, and which can ground universal moral values.
• The only universal commitment of human being in the post-modern view is individual freedom.

1.3.3 Positivism View

a) Introduction and definition

• Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the existence of
something.
• Laws and legal systems are posited by human being thus the name “positivism”.
• ‘Legal positivism’ is the view that the study of the nature of law should be a study of law as it exists in
legal system and not of law as it ought to be on moral ground.
• Legal positivism has long history and wide influences.

b) Principles
• Something can still be legal while falling far short, morally from what a legal system ought to be.
• Positive law is distinct from other principles such as principles based on morality, religion, custom,
convention or understanding of the people.
• Therefore, there is no necessary connection between law and morality. For instance, Nazi Germany had
a legal system even though the legal system contained law that were immoral.
• In addition, positivist analyses law by study the independent effects of objective social conditions such
as organization and culture on legal concepts.
• The look at changing social circumstances as causes changes in law.
• In other words, according to positivism view if sovereign said the law is valid then the law is valid.
• In order to make the law valid, the law must follow the establish procedures of law making.
• In addition, under the positivism view there are 2 important question which are was the law created by
the correct authority? Secondly, did the correct authority follows the appropriate procedures?
• The law is valid if the answers to both questions is ‘yes’.
 c) Theorists of Positivism View

i. Thomas Hobbes (1588 – 1779)

• Thomas Hobbes in some older texts Thomas Hobbes of Malmesbury, was an English philosopher who
is considered one of the founders of modern political philosophy.
• Hobbes is best known for his 1651 book Leviathan, which expounded an influential formulation of social
contract theory
• Hobbes was interested in the nature of man, and what affect this had on society.
• Hobbes concluded that the state of nature was nothing more than a state of perpetual war, and man
was a nasty, brutish, and violent creature.
• In the interest of survival and self-preservation people were forced to surrender their natural rights to a
king or sovereign. The king alone should have the power to create laws. This could be the only way to
ensure survival.
• People would obey these laws because refusing to do otherwise would mean a return to chaos and a
state of perpetual war.
• In his book Leviathan, Hobbes advocated a strong leader who could rule over society and therefore
prevent the return to man’s natural state of greed, violence and anarchy.

ii. Jeremy Bentham (1748 – 1832)

• Like Hobbes, Bentham was interested in the nature of man.
• Bentham was an English philosopher, jurist, and social reformer regarded as the founder of modern
utilitarianism.
• Utilitarianism is a philosophical and economic doctrine that the best social policy is that which does the
most good for the greatest number of people.
• For Bentham it was clear that for a law to be just it would provide “the greatest happiness to the greatest
number of people”.
• This theory became known as utilitarianism. Laws would be evaluated by their utility (usefulness) to
society.
• Bentham felt that humans were motivated by the desire to achieve pleasure and avoid pain.
• Therefore, it made sense to judge laws on their ability to provide happiness to citizens.

iii. John Austin (1790 – 1859)

• John Austin was a noted English legal theorist who strongly influenced British and American law with
his analytical approach to jurisprudence and his theory of legal positivism.
• Austin was a contemporary of Bentham and was influenced by concept of utilitarianism.
• Austin defined law by saying that it is the “command of the sovereign”
• Austin further stated that legal positivism as ‘The existence of law is one thing; its merit or demerit is
another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or
though it varies from the text, by which we regulate our approbation (approval or acceptance) and
disapprobation’.
• He used utilitarianism as the basis for his ideas, which would lay the foundation of modern positive law
theory.
• Austin felt law should be completely separated from morality. He argued that judging laws on a moral
basis was subjective (based on personal feelings/emotion) and would potentially lead to anarchy
because individuals would be free to select those laws best designed to meet their needs while
disregarding the others
• Positive law provides an objective standard for human conduct: a legal norm applying equally and
impartially to all individuals. Rule of Law.
• This concept left little room for civil disobedience, but for Austin “the mischief inflicted by a bad
government are less than the mischiefs of anarchy”.
• For Austin laws could not be judged on whether they were bad or good but on useful they were to society
– their social utility.

iv. Hans Kelsen (1881 – 1973)

• Hans Kelsen was an Austrian jurist, legal philosopher, and political philosopher.
• Kelsen introduced the theory of Grundnorm Law which Grundnorm is a is a German word meaning
"fundamental norm” that forms an underlying basis for a legal system.
• The law according to Kelsen is a system of norms.
• Under Kelsen’s theory, no norm is objectively valid. The ‘source’ of validity therefore must be a norm
that is assumed to be valid.
• Kelsen formalises this assumption through a new object: the basic norm or Grundnorm.
• The Grundnorm is not a legal norm, it is instead a norm that is assumed to be valid by the legal scientist
examining the legal system.
• A legal norm is then any norm derived from this Grundnorm.
• Under Kelsen’s system, there is no objectively right or wrong way to derive a norm from a higher norm,
just as there are no objectively valid norms in the first place.
• Fundamentals of norms is based either on, acceptance or not. If accepted, then it will become valid and
if not accepted then it will become invalid.
• Furthermore, A Grundnorm refers to a specific constitution or other source of law. For example, the
Australian legal system’s Grundnorm is “One ought to obey the Australian Constitution.”

v. Herbert Lionel Adolphus Hart (H.L.A Hart) (1907 – 1992)

• H. L. A. Hart is a notable of Anglo-English legal theory of the 20th Century and the famous treaties ‘The
Concept of Law’.
• According to Hart, the essence of legal positivism is the ‘separation thesis’ between the legal right to do
and moral right to do for instance having a right to do something doesn’t entail a moral right to do it.
• Hart noted the obvious fact that laws typically survive the sovereign who issues them, and that the
directives of newly minted ‘sovereigns’ are law.
• According to Hart, law consists of rule and there are two types of rule; primary and secondary legal
rules, such that a primary rule governs conduct, such as criminal law, and secondary rules govern the
procedural methods by which primary rules are enforced, prosecuted and so on.
• The notion of secondary rules involving obligations to defer to specific procedures for identifying "correct"
or "incorrect" behavior, is something normally associated with so-called "law-abiding" societies.
• Furthermore, according to Hart, the source of a rule's authority is its validity.
• The validation of rules determines which are law and which are not.
• An important type of secondary rules is rule of recognition that authoritatively determine the question
about validity of rules.
• Although the concept of validity does not apply to this rule, the rule of recognition does have authority
and its degree of "bindingness," must depend upon its acceptance.
 d) Criticism to positivism view

i. Separating law and morality.

• If the morality is not what is guiding in making law, then what it is?
• How the sovereign decide that it was going to pass this law? Based on what?
• Because positivism doesn’t help us in distinguish between the good law and the bad law or right law
or the wrong law (see Austin).
• All the positivism allows to do is to distinguish between the valid law or invalid law.

ii. Failed to justify the process by which the law is enacted.

• How can we determine whether the rule allow parliament to make law it itself valid?
• Because based on the rule of recognition that govern whether the rule is law or not valid or not itself
don’t have the validity.
• The rules of recognition for validity is based on the authority which is acceptance, but what happen if
the society rejected? Such as protest, civil disobedient and revolution?

iii. Does not consider individual and societal (relating to society or social relations) factors.
• According to positivism laws are all same and standard apply to all the society members without taking
consideration the background and individual needs that can be differ from one another because of the
different background of individual such as custom and religion.
• Therefore, it is more difficult to challenge and change laws according to the need and change of society
because the making of law upon to the sovereign based on the validity.

1.3.4 Realism View

a) Introduction and definition of Realism View

• Realism view or ‘Legal Realism’ is a school of thought that originated in the United States.
• The definition of ‘Legal Realism’ is the study of law is actually carried out and enforced rather than law
as a series of rules contained in statues.
• Realist approach is an important part of the sociological approach to law.

b) Principles
• Legal realists assert (state the fact or belief confidently and forcefully) that judges hold the key to law's
influence.
• In the countries such as Western liberal democracies countries, law is practised as an adversarial
exercise between two antagonistic parties with a judge possessing adjudicatory powers.
• How do judges go about making their decisions?
• The judge making their decisions is guided by their interpretation of the law.
• However, as a human being the judge has also being influenced by other factors such as feelings,
moods, alliances, and preferences.
• Legal realists highlight the fundamental importance of personality in the outcome of a dispute.
• Likewise, critical legal studies theory challenges law's alleged impartiality.
• A simple glance at society establishes how diverse our society has become.
• Yet, the majority of lawyers, legislators, and judges are middle-aged, middle to upper class, white
Christian men.
• Can the law be said to be impartial when a group rather unrepresentative of society is responsible for
crafting the law, executing the law, and resolving disputes about the law?
 • Some critical theorists even argue that law operates as a tool of privilege and power in historical and
contemporary society.

c) Theorists of Realist View

i. John Chipman Gray (1839 – 1915)

• John Chipman Gray was an American scholar of property law and professor at Harvard Law School
• Gray defines law as rule of conduct lay down by a person acting as judicial organ of the state. Hence,
law is ‘what the judges declare’.
• Furthermore, the personality and personal view play an important role in judge making the decision.
• Judges while interpreting legal rules while apply it as fact-situation and exercise their own discretion and
judgement therefore the judge not only declares the decision but also makes the law.
• In addition, according to Gray, the law comprises of rules laid down by the court and the statue and
other legal instruments are merely the sources of this law.

ii. Oliver Wendell Holmes (1841 – 1935)

• Oliver Wendell Holmes Jr. was a civil war veteran and served as a U.S. Supreme Court Justice from
1902 to 1931. He was considered an expert on the common law.
• According to Holmes, the judge gives new meaning and interpretation to an existing legal rule or create
new rule for the first time.
• No one can confirm the nature and scope of the new rule until a decision is given by the judge hence it
become the rule.
• He stated that ‘the prophesies of what the courts will do in fact and nothing more pretentious, are what
I mean by the law’ (The Common Law 1951).
• In addition, according to Holmes, the law declared by the court is the outcomes of the necessities toward
law at that time, the prevalent moral and political theories, institutions of what public demand, even
prejudice the judge may have and numbers of other factors.
• According to Holmes, legal duty is nothing but a prediction that if a man does or omits certain thing, he
will be made to suffer in his or that way by the judgement in court.
• Holmes used his famous example of “bad man” to illustrate his concept.
• Furthermore, according to Holmes person does not care about the general moral pronouncement (a
formal or authoritative announcement or declaration) and abstract legal doctrine but only what the courts
are in fact likely to do.

iii. Karl Llewellyn (1893 – 1962)

• Karl Nickerson Llewellyn was a prominent American jurisprudential scholar associated with the school
of legal realism.
• According to him, rule is the heart of the law and the arrangement of rule in society in an orderly, coherent
system is the business of legal scholar which are making the solution and to fit with case in is upon the
judge.
• Term rule is very ambiguous, it could be prescriptive as ‘what ought to be’ or ‘what judges ought to do’.
• According to Llewellyn, ‘real rule’ and the one that should be used by the judges would be the only
prediction of what the courts will do and nothing more.
• It can be concluded that Llewellyn perspective that the judge’s role is as a policy maker.
 iv. Jerome New Frank (1889 – 1957)
• Jerome New Frank was an American legal philosopher and author who played a leading role in the legal
realism movement, a chairman of the Securities and Exchange Commission, and a federal appellate
judge of the United States Court of Appeals.
• According to him the judge looked for rationalism from legal rules to support the decision on other
grounds.
• The other ground according to Frank that influenced by psychoanalysis theories considered the other
ground is in the psychological conception and attitudes of the judge.
• He further stressed what he considered as “situation sense” by a judge.

d) Four main ideas of legal realism

i. Law protects powerful economic interest first
ii. The outcome of a legal dispute is determined of the judges
• According to the positivism, the law is rational, so the judge will apply it rationally.
• But the judge is a human being therefore in making decisions, the judge is influenced by their life such
as morality, mood and personality.
iii. Since judges can interpret the law, judges should be motivated by the public good
iv. Since lawyers can predict how the judges will rule (by examining judge’s behavior) they should use that
as an advantage to choose their forum wisely.

e) Critical legal studies and 3 important characteristics

• Law neither neutral nor value free. Powerful society group, have massive access to make and craft the
law according to their need and favorable to their interest.
i. Law is politic.
• Therefore, it can be manipulating to reach specific or result for instance making law that produce result
for the sake of interest of powerful group in the society.
ii. Law is undetermined
• It is because law it’s not rational and upon the judge decision that can be vary, hence, using standard
legal argument it is possible to reach a posing conclusion.
iii. Law only changes when the society change.
• Law change when the powerful group of people in society.
• For instance, the law only changes when wealthy people concern about other people interest such as
weaker people in the society and their concern is always related to their interest.

f) Criticism to realist view

i. Causing a great deal of confusion and exaggerating the role of judges in shaping and making the
law.
ii. Where the law is certain and clearly stated, the judge has little choice in finding facts and applying
the law.
iii. The laws are actually not rational but rather ambiguous and often contradictory.
iv. The approach of this legal realist will lead to a total pessimism about the utility (useful, beneficial,
profitable) of law as an instrument of change and reform.
• Legal studies scholar agreed that change needed, and reform is necessary, but they don’t agree with
how to impose and enforce the change and reform.
• For instance, the change and reform of the law is based on the need and interest of powerful group of
society only.
v. The judge who finds it more interesting to invent new law rather than restate the old is stealthily
undermining and acting as a legislator, not a judge.
• A legislator of the worst sort, who enacts new law and holds it against innocent people who were dutif
ully complying with the old law.

1.3.5 Sociological View

a) Introduction and definition

• The term sociology was invented by Auguste Comte in 1800’s.
• Unlike law sociology only taught in university in 20th century partially through the intellectual and
promotional efforts by Émile Durkheim
• Sociology is the scientific study of sociology and social behavior.
• Sociological theory is defined as a set of interrelated ideas that allows for systematization of knowledge
of the social world.
• Meanwhile the sociological view or sociology of law refer to the foundation of sociology and law.
• Furthermore, sociology of law refers to the sociological study of law and law-related phenomena,
whereby law is typically conceived as the whole of legal norms in society as well as the practices and
institutions that are associated with those norms.

b) Principles
• Sociological jurists are concerned more with the working of law rather than with the nature of law. They
regarded law as a body of authoritative guides to decision and of the judicial and administrative
processes rather than abstract content of authoritative precepts.
• It considers law as a social institution which can be consciously made and also changed, modified or
retained on the basis of experience. In other words, it synthesizes both the analytical and historical
approach to the study of law.
• Sociological Jurists lay emphasis upon social purposes and social goals and expectations which are the
law subserves rather upon sanctions and coercive character of law.
• Sociological jurists look on legal institutions, doctrines and precepts functionally and consider the form
of legal precepts as a matter of means only to satisfy greatest good of the greatest number.

c) Theorists of Sociological View

i. Karl Marx (1818 – 1883)

• Karl Marx was a German philosopher, economist, historian, sociologist, political theorist, journalist, and
socialist revolutionary. He was born in the middle of Industrial Revolution.
• Marx’s central objective as a social theorist was to explain social and economic changes through the
whole of human being.
• Marx saw law as a class rule which every society rets on an economic foundation.
• 3 principles assumptions of theory of law according to Marx:
1. Law is product of evolving economic forces
2. Law is a tool used by the ruling class to maintain its power over the lower class
3. In the future (communist society), law as an instrument of social control will disappear.
• Marx developed a body of thought that would inspire major social movements, initiate revolutionary
social change across the globe, and provide the foundation for many socialist or communist
governments.
• Marx's theories about society, economics and politics – collectively known as Marxism – hold that human
societies progress through class struggle: a conflict between an ownership class that controls production
and a dispossessed labouring class that provides the labour for produce.
Marxism:
• Marxism, a body of doctrine developed by Karl Marx and, to a lesser extent, by Friedrich Engels in the
mid-19th century.
• It originally consisted of three related ideas: a philosophical anthropology, a theory of history, and an
economic and political program.
• There is also Marxism as it has been understood and practiced by the various socialist movements,
particularly before 1914.
• Then there is Soviet Marxism as worked out by Vladimir Ilich Lenin and modified by Joseph Stalin, which
under the name of Marxism-Leninism (see Leninism) became the doctrine of the communist parties set
up after the Russian Revolution (1917).
• Offshoots of this included Marxism as interpreted by the anti-Stalinist Leon Trotsky and his followers,
Mao Zedong’s Chinese variant of Marxism-Leninism, and various Marxisms in the developing world.
• There were also the post-World War II nondogmatic Marxisms that have modified Marx’s thought with
borrowings from modern philosophies, principally from those of Edmund Husserl and Martin Heidegger
but also from Sigmund Freud and others.

ii. Émile Durkheim (1858 – 1917)

• David Émile Durkheim was a French sociologist. He formally established the academic discipline and—
with W. E. B. Du Bois, Karl Marx and Max Weber—is commonly cited as the principal architect of modern
social science.
• According to Durkheim, there are two types of solidarity (unity or agreement of feeling or action) in
society which are;
1. mechanical – similarities of idea, habit, and attitude
2. organic – develop and become more complex, heterogeneous (diverse in character), and
differentiated by divisions of labor
• Durkheim turned to the evolution of law as an indicator of the changing moral foundations of society.
• Durkheim's central concern, to show that modern society is characterized by a solidarity that preserves
individualism, remains valuable today.
• In addition, according to him; “Every precept of law can be defined as a rule of sanctioned conduct.
Moreover, it is evident that sanctions change with…gravity. It is right, then, to classify juridical rules
according to the different sanctions…attached to them”.
• He illustrated the concept of crime on the imaginary community of saints (individual and criminal conduct
is unknown).
• Based on this community of saints, 4 important ideas on punishment arises:
1. Punishments is more proactive than reactive
2. Ritual punishment and solidarity are functionally linked
3. Punishment is but a reflection of the solidarity needs of the community.
4. The behavior being punished may not have any direct harmful consequences for the community.

iii. Max Weber (1864 – 1920)

• Maximilian Karl Emil Weber was a German lawyer and sociologist, philosopher, jurist, and political
economist. His ideas profoundly influenced social theory and social research. Weber is often cited, with
Émile Durkheim and Karl Marx, as among the three founders of sociology.
• Weber's focused on three issues:
1. the causes for the creation of different legal systems.
2. the relationship between law and the rise of capitalism.
3. comparative analyses of law which he uses to verify his overall theory.
• Four ideal legal system according to Weber:
1. Substantive irrationality - This exist when cases are decided on some religious, ethical, emotional or
political basis rather than by general rules.
2. Formal irrationality - Rules used based on supernatural forces but its rational because of the lack of
understanding to why it works and forma.
3. Substantive rationality - When decision is based on the application of rules from nonlegal sources
such as religion, ideology, or science.
4. Formal rationality - Involves with the use of consistent, logical rules that are applied equally in all
cases.
• Three types of administration of justice:
1. Kahdi justice: Justice dispensed by the judge of the Shariah Court
2. Empirical Justice: consists of deciding cases by referring to analogies and relying to on and
interpreting principles.
3. Rational justice: based on bureaucratic principles
• Criticisms of Weber
1. There is a potential conflict between legal rationalism of logically formal types and a legal system's
creative capacity to generate new substantive concepts and institutions required by a changing
economic structure.
2. Contradiction between the values of a democratic order and the requirements of formal rationality.
No substantive social justice, consequently legal rationality legitimates the inequalities of modern
capitalism.

d) Criticism to the Traditional Marxist View of Society

1) The class structure today is more complex than Bourgeois-Proletariat. bourgeoisie (the owners of
the means of production and the capitalists) and the proletariat (the working class and the poor).
2) Capitalism today is less exploitative –
➢ Henry Ford, the famous car manufacturer paying more the minimum wage can cause more
demands for cars.
➢ ‘Keynsian Economics’ in which the state came to play a more central role in regulating Capitalism
to ensure that worst excesses of exploitation, inequality and insecurity that pure Capitalism
generates were minimised.
➢ In the United Kingdom the state now provides universal health care, education, pensions and social
security, as well as guaranteeing a minimum wage.
• Marx argued that those who control the economic base controlled the economic superstructure –
yet many of our institutions today have at least relative autonomy from Bourgeois control
• Given the above three points, it seems ludicrous to argue that the superstructure is controlled by
the Bourgeoisie and is used to create false consciousness.
• There is much less Alienation in modern companies. Workers have a lot more say, partly due to
unionisation and partly due to enlightened management techniques.
• Classic Marxist theory has been criticised for being economically deterministic. Marx argued that
‘economic laws’ determined not only the shape of society but also the direction of history itself.
• The Communist Revolutions in Eastern Europe did not lead to greater equality and freedom as
Marx would have hoped.
• Finally, many sociologists today would argue that Marx’s ‘grand theorising’ about the world is no
longer relevant – rather than researching with the intention of creating the perfect society, we
should really be focusing our attention of much more specific and localised social issues.
1.3.6 Islamic View

a) Introduction and definition

• Islam is a complete package a complete message and way of life.
• Islam consist of 3 aspects:
1. Islam – divine law,
2. Iman – belief and
3. Ihsan - Ethics and moral character.
• The word Islam literally means surrender to the will of God and Islamic legal system is based on
the Islamic religion.
• Meanwhile law in the Islamic legal system is part of the wider normative system known as Shariah.
• Shariah literally means ‘a well-trodden path to water,’ the source of all life, representing the Path
to Allah, as given by Allah, the Originator of all life.
• Furthermore, Shariah refers to the command, prohibitions, guidance and principles that God has
addressed regarding human conduct in this world and after life.
• Islamic civilization, since the time of Prophet Muhammad until now, is firmly founded on the
concept of ‘rule of law.’

b) Principles:
• Shariah under Islamic law governs the interactions between communities, groups and social and
economic organizations.
• Shariah establishes the criteria by which all social actions are classified, categorized and
administered within the overall governance of the state.
• Shariah law under Islamic law is based on It is bases on Quran and Hadith, Fatwa and Ijma Ulama
(consensus of opinion among jurists).
• Shariah’s primary objective is Mercy as stated in Quran as bellow:
‘And We did not send you (Muhammad) except as a mercy for all creation’ [Anbiya:107]
• The overarching objectives of Shariah, whereas mentioned above the overarching goal is Mercy,
or the benefit of society, are sometimes summarized under the following broad categories:
1. Establishment of justice.
2. Educating the individual.
3. Upholding morality, in public and private.
4. Preventing hardship, on individuals and society.
5. Preventing oppression.
• If a Muslim citizen commits areligious violation, he is judged according to Islamic law.
• Furthermore, Shariah Court is the court which enforces the Islamic law relating to various matter
such as marriage, divorce, adultery, drinking alcohol, will, muamalat and family matters.
• All of this matter governs under Shariah court (substantive law and procedural law) that falls under
civil shariah and criminal shariah.
• Islamic law is applicable only to Muslims and is administered by a separate court system, the
Syariah Courts.
c) Distinction between Islamic Law and Man-made Law

Islamic law Man-made law

Islamic law is complete, perfect and includes all Men made law when they feel they need.
aspect of human life for all time
Permanent and unchangeable (to the extent that it Changeable by those in power at the material time
is contained in the Qur’an and Sunnah)
Does not represent class interests and applies to May represent the interests of certain groups or
all places and people alike classes of people
Has its own ethical norms of what is good and bad, Determination of what is good and bad, right and
right and wrong wrong are dictated by human society
Obedience to the Syariah is a fundamental part of Adherence to the law is secured by way of threat of
faith and a sacred religious duty punishment which may differ from one society to
another
Allah is All Knowing and All Powerful; he is the Does not have the knowledge of future therefore
most wise and knowledgeable including the man-made law cannot stand the test of time
knowledge of the future, therefore Allah laws are
the best
Allah’s law for all nation and all countries and they Maybe suitable for a particular nation or country
are universal. and mot universal
Allah are the creator, and His law are for man, His Man is the created being. His law is the creation of
creation the created

1.4 Nature of Society

1.4.1 Introduction
• Nature of society is related to the concept of society which significantly influences the relationship
between law and society.
• The sociological issues relating to law and society are generally divided into two concepts of
society.
• The two concepts of society are Consensus Society and Conflict Society.

1.4.2 Consensus Society and Conflict Society

a) Consensus Society
• Concept of Consensus Society is the law as a neutral framework to maintaining societal
integration.
• Consensus views beginning with the economist Max Weber (1864–1920) and continuing into the
structural functionalism of the American sociologist Talcott Parsons (1902–1979) describe society
as a complex combination of static and dynamic systems.
• Weber identified society as a system of potential harmonization, with rational actors choosing the
best means to the end of ensuring the smooth operation of society; Parsons discussed the
functional and dys-functional aspects of society as it strives for a dynamic equilibrium through
complementary institutional structures.
• According to this concept of society, the society has stable social system that held together by
consensus of basic values.
• This concept of society stresses the solidarity, integration, cooperation and the stability of society.
• Society is organised on the basic ideals, such as equality, liberty opportunity and the individual
can achieve their interest by cooperation and this idea accepted by individuals who composed it.
 • According to Roscoe Pound, society consist of group whose interest often conflict with one another
but there are social compromise and fundamental unity to emphasis on social order and harmony.
• Furthermore, according to him, the purpose of law to control interest and maintain the harmony
and social integration that govern this society by controlling and mediating the diverse and
conflicting the interest of individuals and groups in society.

b) Conflict Society
• On the other hand, Conflict Society is the opposite to Consensus Society and the theorist sees
the law as a weapon of ruling class to maintain a status quo.
• In other words, according to this concept, theorists believe in the conflict perspective of society
that society consist of individuals and groups who interests conflict to maximise their own interests
and to secure power and dominance.
• The social institution that originally designed to meet basic survival needs are now controlled by
the powerful individuals or groups that manipulate the system to maintain their own privileged
position of wealth and power.
• According to Richard Quinney the law is an expression of interest and a tool to control society by
whom who has the power to translate their interest to public policy.
• According to William Chambliss (who embraces the conflict of law), contended that the power of
economic and commercial interest that influences of legislation.
• For instance, the vagrancy laws in England were established during a period when there was a
need for cheap labour by landowners and the purpose of law to force those who were able-bodied
and unemployed to work.

1.4.3 Society in Malaysia

• The Malaysian community is very unique as it consists of different ethnic groups practicing different
religion and culture.
• Nevertheless, the people of Malaysia live in harmony. Such ‘unity in diversity’ is reflected in the
various festivals and celebrations in Malaysia.
• Although specific festivals are celebrated by different ethnic groups, the joy of these festivals is
shared by other ethnic groups through the concept of open houses or visits.
• Despite the differences in custom and tradition, Malaysian society are able to live in peaceful and
achieve unity from toleration towards one another.
• In addition, Malaysian society willing to sacrifice and tolerate to one another rather than being
selfish and focus on individual needs although there is disagreement because Malaysian society
realise how important to live in harmony and to avoid unstable environment in society.

Malay Community
• There are various opinions on the etymological meaning of the word “Melayu” (Malay), among
these are the opinions that the word “Melayu” originated from the word “Malaju”, which means
“faster speed, swift, agile”.
• Hence, the Malays are considered people with characters of fast and quick actions.
• However according to FC, “Malay” means a person who professes the religion of Islam,
habitually speaks the Malay language, conforms to Malay custom.
• That someone is a Muslim, speaks Malay and adopts Malay custom is not, without more, sufficient
to qualify them as a Malay under the Constitution.
• The beneficiaries of the “special position” accorded to the Malays are therefore not a race but a
defined class of persons.
• Being ethnically Malay has not been any part of the criteria laid down in the Constitution.
• The provisions for the special position were enacted to cater to the political demands of a group
going by the name “Malay” but impossible to define in any other practical or workable way.
• The Constitution had to provide an artificial definition which rendered ascertainable whether a
person is or is not a Malay – in the form of the requirement, as at Merdeka Day, of birth, domicile
or descent.
• The consequence of using a term so charged with ethnic, religious and cultural connotations has
been to subsume the constitutional definition under the concept of “Malay Rights” or “Ketuanan
Melayu”, which has made debate on the special position of the Malay not only difficult but also
polemical.

Chinese Community
• Chinese is the second largest race in Malaysia.
• Malaysia and China have had political and trade relations since centuries ago. At the time of the
Melaka Sultanate, China has played the role of a protector for Melaka from Siam’s threat.
• The Chinese in Malaysia call themselves Huaren in Mandarin. In their respective dialects, the
Hokkiens refer to themselves as Teng-lang, and the Cantonese as Tohng-yahn, which is Tangren
(Tang People) in Mandarin.
• Today, most do not like to be referred to as Huaqiao, or “overseas Chinese,” as they stress their
Malaysian identity.
• They accept the Malay label Orang Cina, unlike the Chinese in Indonesia, who prefer to be called
Orang Tionghoa.
• The Malay term “Cina” means both Chinese and China, and orang means “people.” Other
indigenous groups call Chinese Malaysians by various versions of “Cina.” For example, the Kenyah
in Sarawak call them “Kina”.

Orang Asal Community

• The Orang Asal (Aboriginal) community is an entity in the Malaysian society that is scattered
throughout the country in Peninsular Malaysia except in Perlis and Penang.
• The largest Orang Asli population is found in Pahang, followed by Perak, Kelantan, and the other
states.
• Besides Malays, Sabahan and Sarawakain, Orang Asal also defined as bumiputera (son of the
soul).
• In Peninsular Malaysia, Orang Asli is separated into three main tribal groups includes Semang
(Negrito), Senoi and Proto Malay (Aboriginal Malay) and consists of 19 ethnics.
• Orang Asli are traditionally animists and have their own customs and beliefs. They believe in the
presence of gods and spirits.
• Their world view is greatly influenced by nature. As such, they believe forests, mountains, hills,
lightning, and others have their own meaning in the universe. Such beliefs have given rise to
certain rituals and taboos in the Orang Asli community.

Indian Community
• The term ‘Indian’ in Malaysia is used to refer to all people from the sub-continent – Indians,
Pakistanis, Bangladeshis, and Sri Lankans. Malaysia has one of the largest communities of
peoples of Indian origin in the world outside the subcontinent, numbering about two million.
• The overwhelming number are of South Indian origin, predominantly Tamil-speaking and a
significant number speak Telugu, Malayalam, Hindi and Punjabi.
• The Indians began migrating to Malaysia in the latter part of the 19th Century, while under British
rule, to work as indentured labourers in plantations.
 • As the years progressed, they integrated themselves into the society and culture of Malaysia while
retaining their language and religion.
• For the Indian community, visitations are better made on appropriate days. For example, visits on
Hindu New Year’s, or to houses of those who have just moved in. Visits on Sunday, Tuesday or
Thursday will be forbidden as those are not considered good.
• Indians practice various types of greetings, commonest way being to put both palms together and
lifting them up to the chest. In addition, it would also be accompanied by questions on health,
family, work, business, and such matters.

Sabahan Community
• Sabah's population is heterogeneous and culturally diverse, with more than 30 different ethnic
races and over 80 local dialects spoken.
• The origins of the ethnic groups are charmingly “explained” in an old folk tale that originates in
legend and history and is a legacy from Sabah’s oldest people.
• The tale speaks of a place called Nunuk Ragang, the original Sabahan’s Garden of Eden,
somewhere in the heart of Sabah. A river ran through it with a nunuk or a banyan tree on its bank.
The native children loved to play in the river and climb the huge branches of the banyan tree to
sun themselves – which is how true Sabahans got the golden glow on their skins. People lived
happily together and multiplied.
• Many of the ethnic groups share a similar oral history, languages, and traditions.
• However, lack of communication due to rugged terrains has resulted in the evolution of many
dialects in common languages, different dress styles, handicrafts, and cultures.
• The largest indigenous ethnic group is Kadazan-Dusun, followed by Bajau, and Murut. Traditions
and customs have long been part of Sabahans’ daily lives.

Sarawak Community
• Sarawak has a population of more than 2.6 million, made up of some 26 different ethnic groups.
• The non-Muslim indigenous communities are collectively called Dayaks – most of whom are
Christians or practise animist beliefs – and they account for about 40 per cent of Sarawak’s
inhabitants.
• The two biggest ethnic groups within the Dayak community are the Iban (also known as Sea
Dayak), making up 30 per cent of the population, and the Bidayuh; others include the Kenyah,
Kayan, Kedayan, Murut, Punan, Bisayah, Kelabit, Berawan and Penan.
• Dayaks who live in the interior of Sarawak are sometimes referred to as Orang Ulu, or people from
the interior. Members of this group typically live in longhouses and practise shifting cultivation; they
engage in fishing to supplement their diet if they live near a river.
• Only a few hundred of the Eastern Penan continue to live as a nomadic people of the rainforest.
• Sarawak was until relatively recently mainly inhabited by indigenous peoples present on the island
of Borneo for thousands of years.
• Others, such as the Melanau and Malays, are thought to have migrated much later, after the
fifteenth and sixteenth centuries. The Chinese arrived later still, mainly in two distinct waves, first
in the mid-eighteenth century in the gold-rich areas of Bau and then in the early twentieth century.

1.4.4 Main National Policies

a) New Economic Policy (NEP)

• In 1970 a census was conducted and found 49.3% of all families in Peninsular Malaysia received
income below the poverty line, 86% of poor families from rural areas while 14% from urban areas.
 Meanwhile percentage of poverty according to race are Malay 64.8%, Chinese 26.0% and Indian
36.2%.
• Due to this imbalance, this eventually cause the 13 May 1969 incident. Therefore, the NEP was
announced in 1970 as part of a package of measures in the Second Malaysia Plan (1971-1975)
to overcome the social-economic imbalance among races in Malaysia and between territories.
• The main purpose of the NEP was to reduce and prevent poverty and to address the issues of
imbalances of socio- economics in Malaysia as well as to restructure society and eliminate
differences in order to create the conditions for national unity.

Objective NEP:
Due to the imbalance of socio-economics in Malaysia, the government made a massive effort
introducing new approach in national development plans involving a 20-year program known as
the New Economic Policy. The main goal of this policy was to create national unity by reducing
economic, social, and cultural imbalances.

The implementation strategy:

To reduce and prevent poverty and creates new job opportunities among all races in Malaysia. To
restructure society to eliminate the identification of race with economic function.

• After the implementation of NEP poverty in Malaysia it went down tremendously as in neighbouring
Thailand and Indonesia, which did not have comparable commitments to poverty reduction, but
also experienced rapid economic growth and structural transformation.
• Not surprisingly, the NEP has been principally associated with ‘restructuring’, i.e. efforts to reduce
inter-ethnic economic disparities between Bumiputera and the non-Bumiputera, especially
between ethnic Malays and Chinese.
• Hence, ‘restructuring’ has come to be associated with ‘positive discrimination’ or ‘affirmative action’
on behalf of the mainly Malay Bumiputeras.
• Such state interventions have resulted in significantly greater Bumiputera wealth ownership,
business participation, education opportunities, public sector employment and promotion, as well
as representation among professionals and managers/administrators.

b) National Development Policy (NDP)

• Development planning in Malaysia began in 1950 with the publication of the Draft Development
Plan of Malaya. To date, a total of 27 development planning documents have been prepared, three
of which are long-term plans and 26 are five year development plans. These include the Draft
Development Plan of Malaya covering a period of six years * and the midterm review of the five
year development plans.
• In 1990 is the end of First Outline Perspective Plan (OPP1) (1971 – 1990) and Malaysian economic
growth grew rapidly. Although the OPP1 achievement was not all achieved but it gained a lot of
success, but it took much longer to be fully accomplished.
• National Development Policy (NDP) was announced by Y.A.B. Dato' Seri Dr. Mahathir Mohamad,
Prime Minister of Malaysia during back then on 17th June 1991 under Second Outline Perspective
Plan (OPP2) (1991 – 2000).

Objective:
National unity will continue to be the final aim of the NDP due to the importance of further
strengthening social and political stability and sustain economic growth. The NDP set a package
 of measures to enable Malaysia to develop in aspects of social justice, values, ethics and morals,
political stability, quality of life, efficiency of government administration, and economic excellence.

The implementation strategy:

The NDP will continue to maintain the NDP's basic strategy in eradication of poverty and
restructuring of society to improve social and economic imbalances between races and to
strengthen national unity. The stability development of NDP will involve critical aspects such as
optimum balance of economic growth, to eliminate imbalance of the socio-economy, to promote
national integration in the economy between state and between urban and rural areas.

1.5 Social Function of Law

1.5.1 Introduction
• Why do we need law and what does it to do with society? To be precise what functions does law
perform?
• There is no agreement among scholars of law and society on the specifics functions of law
therefore it is difficult to place the law’s functions in specific categories.
• There are however, a variety of functions highlighted in the literature depending on the condition
under which law operates at a particular time and place.
• These are among the benefits of law to society:
a) Promote social justice
b) Promote orderliness - the law has streamlined human activities in a way that will prevent
chaos and disorderliness amongst people.
c) Preservation of human rights and life
d) Drive social transformation - positive social changes and transformation in the society
 • Overall, the social function of law is to defend us from evil, promoting the common good and
encouraging people to do the right thing.
• This topic however will discuss the most general and wide categories of law functions in society.

1.5.2 Social Control

• Generally, society regards certain behaviours as either obligatory, permissible, or forbidden.
• However, members of the society may have different social values, various behaviours, and
interests.
• In modern societies, there are many methods of social controls which are amount either formal or
informal social control whereby law fall under formal social control.
• Law specifies the behaviour of individuals or group of individuals that amount to forbidden
behaviours or for shirking (avoidance) obligations.
• This function perhaps is the most basic and elementary of law performs.
• Law act as a device to control undesirable behaviour and act of individuals or group of individuals
in society.
• These undesirable behaviours or acts are the behaviours that socially unacceptable.
• Law provides a formal set of rules that govern the individuals or groups of individuals behaviour in
society and enforce punishment to behaviour or act that against the law.
• Furthermore, the undesirable acts for instance, the act that amounts to crime and govern under
criminal law that emphasise certain acts or omission as punishable.
• This eventually will create a social control on human conduct in society whereby members of
society will behave according to the law to emphasise the right and freedom of members of the
society as well as the protection to the society.
• This social control is not only important to exercise the right and freedom of the society but to
preserve the peacefulness and harmony.

1.4.3 Conflict Resolution

• Disputes are unavoidable in society, and it is the role of the law to settle disputes.
• Often the term ‘dispute resolution’ is used when it is in regard to small scale local disagreements
between individuals or business.
• The dispute or conflict maybe between two parties arguing ownership of a property, married couple
over child custody during divorce proceeding or classes of individuals in disagreement on the right
to demonstrate.
• ‘Conflict resolution’ generally used when referring to macro disagreement between groups or
individuals in society.
• The role of law in conflict of resolution is by way the conflict between two parties reach
disagreement and the law will provide procedures which regulates the ways in which right and
liabilities are defended, enforced and designated institution (such as courts, tribunal and
arbitration).
• Law thus creates a conceptual and institutional framework to ensure the individuals may enter
transactions with reasonable certainty, that conflict will be settled and that breaches will be
enforced or compensated.
• The law also provides alternatives to other method in resolving conflict by way of alternative dispute
resolution which resolve by informal and nonlegal procedures method such as negotiation and
mediation.
1.4.4 Facilitative Function
• The law play role as a tool to control individual or group of individuals to achieve common goal and
avoid conflict
• Law provides set of rules that govern the conduct of the member of society in structured manner.
• This function of law by providing set of rules to govern the conduct for any conflict known as ‘private
law’ is to organise the relationship between individuals or group of individuals in society.
• The laws such as contract, property, partnership, marriage and trade union existed to achieve this
function of law which is to facilitate the relationship in society in relation to private law or private
matter to avoid any conflict.
• These are some of the examples that the law helps in the relationship in society which individuals
or group of individuals enter with free will.
• For instance, the law of partnership will assist the parties to organise the partnership such as
business involves or the law of will or Faraid (Islamic law) to organise the property of deceased
such as the distribution of the property.
• What the law does here to provide a framework of rules which mainly determine how a valid
transaction may be brought.
• Law promotes certainty and predictability in certain matter such as business areas and created
trust in social life by govern private matters as part of private law.
• By providing the set of rules that govern their conduct especially in regard to private matter that
creates rights, power, obligation, liability therefore law provides the facility for realising society’s
wishes and goals.
• The function of law here is facilitative (to make easy) rather than coercive (using force or threat).

1.4.5 Integrative Function (combination two or more thing in law because of diverse of fundamental living
that require different type of law such as private law and criminal law)
• Some view law as having specific role which is to promote the integration of diverse interest and
elements of members of society.
• According to Roscoe Pound, law secure and should secure, social cohesion (unity) and orderly
social change by balance the conflict of interest.
• The function of law in this context as device to manage the conflict and provide the unity in society.
• According to Emile Durkheim, society is a moral phenomenon whereby the law is the expression
of moral milieu (social condition of people) of the society.
• Furthermore, according to him, society established two types of law which are ‘penal’ or
‘repressive’ law (repressive law system is one in which any law breaker is severely punished for
their crimes) guarantees what he calls ‘mechanical solidarity’ – a kind of cohesion based on fear
or punishment.
• However, this penal or repressive law are not suitable and applicable for private matters therefore
the society establishes the ‘restitutive’ or ‘cooperative’ law such as contract law to govern the
private matter that has no concern with punishment (because of the crime).
• This reflects his theory of ‘organic solidarity’.
• According to Karl llewellyn, one of the functions of law is the organisation and harmonisation of
activities with members of society.
• Furthermore, according to him law play important role in members of society by maintain the
appropriate social and emotional relation.
• Law also plays important role in develop and fulfil specific goals as well as maintain the value
within members of society.
 • According to Adamson Hoebel, the important contribution of law to the basic organisation of society
is to defines relation by set up the expectation between individuals or groups.
• In addition, this set up will give such limitation of what the right is, duties, privilege, power,
immunities, and liabilities to others with respect to act of others.
• Law lay down what are the permitted activities or vice versa in order to maintain the integration
between activities and individuals or groups within society.
• Therefore, law perform the function of ordering of the fundaments of living together.
• According to Talcott parsons, people have certain fundamental of how society should function
hence law acts to apply the fundamental values.
• Law performs the integrative function in the sense that it attempts to mitigate potential elements of
conflict within the society.

1.4.6 Social Engineering

• The resources and goods are limited but individuals have desires and demand.
• This is where the law plays the important role to satisfy those demand and desire.
• Roscoe Pound argued that individuals have multiple of demand and desires that want to satisfy.
• The law function as a social institution to satisfy social demand that involves in civilised society.
• He further argued that law secure social cohesion and orderly social change in balancing between
the conflicting interest.
• In social engineering, law function is to maximise the fulfilment of the interest of the community
and its members by encouraging the smooth running of the machinery of society.
• Law as a method of change and reform is to secure the equalization of opportunity and status in
society. The equalization is by providing facilities for some individuals or groups more than others
the equalise the facilities and creates opportunity available to all individuals.
• In Malaysia for instance, there are group who is disadvantaged than others that cause the equality
in job opportunities, housing, and others.
• Therefore, all laws created to minimise the economic imbalances, for instance between Malays
and other ethnic groups, may be said to perform the task of social engineering.

1.4.7 Social Welfare

• Law’s function also to promote and enhance the welfare of the society.
• The concept of ‘social welfare’ has given such important attention and laws are using to achieve
the social welfare.
• The state using the laws to provide welfare such matters as education, health services, protection
of weaker society (such as women, elderly, and children), against the economic exploitation and
various of social services.
• Modern governments for instance spent a lot of money on wide range of fiscal and social benefits
and services.
• The law uses to provide for social justice and welfare such as income tax, zakat, social security
against disability and old ages, retirement benefit, legal aid to the poor.
• The examples of laws in Malaysia that govern the social welfare in Malaysia:
1. Persons with Disabilities Act 2008
This act which reflects its recognition to the existing and potential contributions made by
persons with disabilities to the overall wellbeing and diversity of the community and society.
2. Employees’ Social Security Act 1969 and Employees’ Social Security (General) Regulations
1971
 Payment of benefits made to eligible employees or dependants to ensure that fairness and
equality to all employees are achieved to those that have contributed to the solidarity fund.
3. Legal Aid Act 1971
The act governs the assistance to people who are unable to afford legal representation and
access to the court system.
• Under Ministry of Women, Family and Community Development have Department of Social
Welfare Malaysia and the laws that govern under the administration of this ministry are:
1. Akta Ketua Pengarah Kebajikan Masyarakat (Diperbadankan) 1948 [Akta 529]
Akta Orang-Orang Papa 1977 [Akta 183]
2. Akta Taman Asuhan Kanak-kanak 1984 [Akta 308] dan Akta Taman Asuhan Kanak-kanak
(Pindaan) 2007 [Akta A1285]
3. Akta Pusat Jagaan 1993 [Akta 506]
4. Akta Pusat Jagaan Pindaan 2007 [Akta A 1292]
5. Akta Keganasan Rumah Tangga 1994 [Akta 521]
6. Akta Keganasan Rumah Tangga (Pindaan) 2012 [Akta A1414]
7. Akta Keganasan Rumah Tangga (Pindaan) 2017 [Akta A1538]
8. Akta Kanak-Kanak 2001 [Akta 611]
9. Akta Kanak-Kanak (Pindaan) 2016 [Akta A1511]
10. Akta Orang Kurang Upaya 2008 [Akta 685]
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Prepared and gathered by:

Dr. Maizatul Farisah Mohd Mokhtar
Moderator Law and Society (TSU0714) Sem II Session 2023/2024,
Tamhidi Centre, USIM.

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