28 Jun 2019

Law
ELEMENTS OF LAW

           



                                                                                                                         


TABLE OF CONTENT


1.0       INTRODUCTION                                                                             2
           
2.0       THE DIFFERENCES BETWEEN PUBLIC LAW
AND PRIVATE LAW                                                                       4

3.0       TWO TYPES OF PRIVATE LAWS                                                 7
            2.1       Law of Torts                                                                           8
            2.2       Contract Law                                                                          10

4.0       THE ROLE OF PRIVATE LAW IN PROMOTING JUSTICE        12

5.0       CONCLUSIONS                                                                               14

            REFERENCES                                                                                              16       
1.0       INTRODUCTION

Law is a system of rules that are enforced through social institutions to govern behaviour. Laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or by judges through binding precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. There is an old saying that 'all are equal before the law', although Jonathan Swift argued that 'Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.' In 1894, the author Anatole France said sarcastically, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread." Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual." Mikhail Bakunin said: "All law has for its object to confirm and exalt into a system the exploitation of the workers by a ruling class". Cicero said "more law, less justice". Marxist doctrine asserts that law will not be required once the state has withered away.

Public Law
Public law refers to the relationship between individuals and the government. In the UK, public law is made up of constitutional/administrative law, tax law and criminal law.

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.

Lawyers who are concerned with public law can specialise in various areas of law including constitutional/administrative law, tax law and criminal law. These areas of law are slightly different.

Criminal lawyers work on all aspects of a case including investigation, liaising with police and appeals.

Private Law
Private law refers to the body of legal doctrines and rules that govern the relationships between private individuals. It is to be contrasted with Public Law, which covers the relationship between the state and the individual. 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.

There are several theories as to why public law is different to private law. These have evolved over time but it’s widely regarded that a combination of the subjection theory and subject theory. The subjection theory suggests that public law governs the relationship between the person and the state and private law governs relationships of individuals. The subject theory suggests that if a person find themselves in membership of a public body, public law applies.

The combination of these two theories results in public law being defined as a field where an actor is an authority with the power to act unilaterally. If this authority is acting as a public entity, public law applies.
2.0       THE DIFFERENCES BETWEEN PUBLIC LAW AND PRIVATE LAW

Legal terms may appear complicated to common individuals, which is why confusion usually occurs during legal procedures. To have a deeper understanding of the basics regarding legal procedures, let us take a look at the difference between two terms: Private law and public law. When is law considered public or private?.

Public law is a theory of law that governs the relationship between the state and the individual, who is considered to be either a company or a citizen. Public law covers three sub-divisions: Constitutional, administrative and criminal law.

  • Constitutional law covers the different branches of the state: Executive, legislative and judiciary.
  • Administrative law regulates international trade, manufacturing, pollution, taxation, and the like.
  • Criminal law involves state imposed sanctions for individuals or companies in order to achieve justice and social order.

Private law is also known as civil law. It involves relationships between individuals, or private relationships between citizens and companies. It covers the law of obligations and the law of torts, which is defined as follows: Firstly, the Law of Obligation organizes and regulates legal relations between individuals under contract. Secondly, the Law of Torts addresses and remedies issues for civil wrongs, not arising from any contractual obligation.

Public law is simply distinguished from private law as a law involving the state. Private law is a private bill enacted into law. It targets individuals or corporations, unlike public law, which has a broader scope, and affects the general public.

There are several differences between public law and private law. The main difference is that public law protects society as a whole and private law governs interactions between individuals or groups. Public law is typically determined and enforced by government agencies, whereas the government typically removes itself from the enforcement of private law.

Figure 1: Comparison Chart of Public and Private Law.

Public law is divided into several areas overseeing the interaction between citizens or corporations and the government. These areas include constitutional law, administrative law, and criminal law. Each area of public law governs specific areas of societal interactions and the remedies available for violations of those laws.

Constitutional law deals with laws as contained in a country’s written constitution or, in some cases, an unwritten constitution related to tradition and custom. These laws are often referred to as the “law of the land” and set the precedent for other laws and regulations. They seek to define the rights of citizens in relation to the state and also help dictate the interactions of various branches of the government.

Administrative law is often considered both public law and private law. In some aspects, administrative law provides guidance for the operation of government entities within a nation and regarding international law. Administrative law can also be seen as both public law and private law because it does straddle the line and deal with some regulations and laws governing civil law.

Criminal law is perhaps the most well-known form of both public law and private law. This branch of public law deals with maintaining a peaceful society. Criminal law applies to individuals and corporations, and laws and regulations found throughout outline specific violations and set penalties for those violations. Crimes dealt with under criminal law include theft, violent crimes, and corporate crimes, such as fraud.

Perhaps the most common example of private law is civil law. This branch of law seeks to help parties, where typically neither is the government, settle personal disputes. Common civil law cases involve contract disputes, bankruptcy, violations regarding consumer protection, and other private matters, such as divorces and child custody. These cases are tried without the interference of the government even though the legislative branch or judicial branch may have had a hand in drafting and adopting the laws involved. Some countries may refer to private law as common law, including portions of the United States and Canada.



3.0       TWO TYPES OF PRIVATE LAWS

Private law is the branch of law that governs individuals' relationships with each other. It is distinct from public law, which relates to an individual's obligations to the state and to society as a whole. Private law governs tort liability as well as contracts cases.

In the United States system of law, laws are divided into public laws and private laws. Criminal law is considered public law. If a person breaks a criminal law, that person is subject to sanctions imposed by the state or federal government. When criminal law is broken, the victim does not need to press charges in most cases; a prosecutor can prosecute a crime with or without the explicit consent of the victim. In other words, the prosecutor is charged with enforcing the public law, and penalties are imposed in order to help enforce those public laws and maintain order in society.

In the private law system, the laws are enforced by individual people who bring lawsuits against violators. The government does not prosecute violations of private law, and a person cannot be sent to jail for violating private laws. The penalties associated with private laws are normally monetary.

The are four types of private laws, there are knows as;

1)      Laws of Torts,
2)      Contract Law,
3)      Succesion Law and;
4)      Property Law

For this assignments, two types of the law mention above will be discuss in great details to give a better understanding of the type of law iteslf.



3.1       Law of Torts
A ‘tort’ is a legal wrong, for which the law provides a remedy. It is a civil action taken by one citizen against another and tried in court. A person who sustains injury or suffers pecuniary damage as a result of the wrongful act of another person is known as the plaintiff and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

The law of tort is defined as a body of rights, obligations and remedies that is applied by courts in civil proceedings to provide relief for individuals or victims (claimant or plaintiff) who have suffered harm from the wrongful acts of others (defendant).

            3.1.1    Element in The Law of Torts
There are four elements to a tort, each of which needs to be present for a remedy to be provided. They are as follows:

Figure 2: Elements of the Law of Tort
a)      Duty of Care
For a tort to occur the defendant for an action must owe a legal duty to the victim of the tort. The obligation of duty is legally enforceable and requires an individual to exhibit behavior which is of a certain standard. In most cases this is concerned with what an ordinary person would do in that situation with the general duty often being to prevent foreseeable injury or damage to a victim.

b)     Breach of Duty
For a tort to occur the defendant for an action must have breached the duty that was legally imposed on him.

c)      Causation
The breach of the legally imposed duty must have caused damage or injury, whether directly or indirectly to the victim.

d)     Damage or Injury
There must be damage or injury. This does not necessarily have to be physical damage or injury it could be monetary or often emotional distress or embarrassment are included.


3.1.2    Example of Law of Torts

Bettel et al. v. Yim, [1978] 20 O.R. (2d)
In 1976, Howard Bettel and some friends entered Ki Yim’s store. After the boys began acting outrageously, an employee asked them to leave. Instead of immediately leaving the property, the boys went to the front of the store and began throwing wooden matches on the sidewalk. One of the matches ignited and caused a small fire inside the store. The employee and the owner of the store put out the fire and Yim grabbed Bettel with both hands to restrain him. While grabbing Bettel, Yim’s forehead hit him in the face causing severe injuries to his nose. Bettel filed a suit against Yim asking for damages due to the assault. Bettel’s father also sued for over $1,000 for medical expenses. The judge hearing the case ruled in favor of Bettel, stating that the act fell under the premise of battery. Though Yim did not intend to hit Bettel in the nose, he had knowledge that his actions could cause harm. Bettel was awarded $5,000 and his father was awarded the amount needed to cover medical expenses.

3.2       Contract Law
Contract Law is the legal field that undertakes the regulation, establishment, and oversight of legislation pertinent to contracts; contracts are defined as legally binding agreements whose expressed legality upon construction is required in order to substantiate the authenticity of the contract itself. A contract will typically include at least 2 entities who must agree to participate within the expressed stipulations and terms illustrated within the text of the contract. A legal contract will typically include 4 primary components:

  • An ‘Offer’ is the initial provision of the terms expressed within the contract
  • Acceptance’ is the agreement enacted by both parties with regard to participate in the contract
  • A ‘Counteroffer’ is an acknowledgement of the terms expressed within the contract – a counteroffer is not synonymous with the endorsement of a contact
  • The ‘Consideration’ is the identification of valued items that may be used as collateral in the event of a breached – or broken – contract

Proof of some or all of these elements may be done in writing, though contracts may be made entirely orally or by conduct. The remedy for breach of contract can be "damages" in the form of compensation of money or specific performance enforced through an injunction. Both of these remedies award the party at loss the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.

Contract law varies greatly from one jurisdiction to another, including differences in common law compared to civil law, the impact of received law, particularly from England in common law countries, and of law codified in regional legislation. Regarding Australian Contract Law for example, there are 40 relevant acts which impact on the interpretation of contract at the Commonwealth (Federal / national) level, and an additional 26 acts at the level of the state of NSW. In addition there are several international instruments or conventions which are applicable for international dealings, such as the United Nations Convention on Contracts for the International Sale of Goods.

In Malaysia, contract law is basically governed and enforced by the Contract Act 1950. The remedy of specific performance presupposes the existence of a valid contract between the parties to the controversy. The terms of the contract must be definite and certain. This is significant because equity cannot be expected to enforce either an invalid contract or one that is so vague in its terms that equity cannot determine exactly what it must order each party to perform. It would be unjust for a court to compel the performance of a contract according to ambiguous terms interpreted by the court, since the court might erroneously order what the parties never intended or contemplated.

            3.2.1    Example of Contract Laws

            Carlill v. Carbolic Smoke Ball Co (1893) 1 QB 256 (CA)
This case involved the defendant company who produced and advertised smoke balls as a preventative measure against influenza and the common cold. The advertisement stated that they would give £100 to anyone who used the product for three times a day for two weeks but still contracted one of these illnesses. The defendant also stated that they had placed £1,000 in a bank account to demonstrate their sincerity. Suffice to say that the claimant took up the challenge and after roughly 8 weeks of continuous use she contracted the flu. Mrs. Carlill claimed the £100 but the defendant refused to pay; they claimed that there was no contract in place for her to enforce the claim.


4.0       THE ROLE OF PRIVATE LAW IN PROMOTING JUSTICE

With the advent of private law, people's life more secure. These laws not only ensure survival but reserved the right to any human being guaranteed. In this chapter we will discuss the example of the experience of a friend who have been involved in the process of involving a Contract Law. His cases also can be categories as an example case from Tribunal For Consumer Claims Malaysia (TTPM).

Mr. Kamal booked for a holiday cruise for his family holiday from Barcelona to Turkey through a well known travel agent in Kuala Lumpur. After making a payment of RM 6,000.00 (RM 2,000.00 per person), he was given the location of the holiday cruise and in-depth information on the cruise. A week before the date of departure, Mr. Kamal was informed that the cruise was cancelled.

In exchange, Mr. Kamal was offered a cruise package to a different country. Finally, Mr. Kamal and his family went on a holiday cruise to neighboring countries of Malaysia. However the cost of this package is much cheaper than the amount that Mr. Kamal had paid. Mr. Kamal therefore made a request in writing for the balance to the travel agent and was promised a refund of the money. However, after a lapsed of six months the money was still not returned.

Mr. Kamal filed his claim in the Tribunal Consumer Claims. The award is the travel agent agreed to pay RM 3,000.00 (the balance owed) and cost of RM 100.00 to Mr. Kamal. (Portal Tribunal Tuntutan Pengguna Malaysia (TPPM), Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan)

The second example for this chapter is a person who involve in Family Law.

Linda is a single mother who recently divorced. Her husband in spite of court order failed to contribute monthly expanses to Linda and their 2 daughters. Linda later filed a suit at Sivil Court to get a new order for the alimony.

Sivil Court found that Linda’s husband is contempt of court and issued an arrest warrant to her husband. Later on at court with appearance of the husband, the court has ordered a new order and fine Linda’s husband accordingly. The court also ordered monthly auto deduction of Linda’s husband salary to her account as the monthly stipend allocated for her and her children.

Both examples above illustrated in how Private Law can promote justice. Both private law namely Contract Law and Family Law have the same role in ensuring justice to citizen.


5.0       CONCLUSIONS

The decision between public and private law is not always mutually exclusive and some area of law might appear to fit into both sides of the dichotomy. The two area are often defined in terms of the respective bodies of law which revolve around the state as a public institution as opposed to law which focuses on the private relations between ordinary members (both natural and corporate) of the community. 

Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population.

Private law includes civil law (such as contract law, law of torts and property law), labor law, commercial law, corporations law and competition law.

Law is needed to keep the peace in a society where individual freedom is valued. Without the law, we would experience havoc and chaos. We require the law as it warrants order and stability within our society. It helps us to consistently base our decisions on the patterns of social morality that we see within society. We conform to society's expectations. This is the act of abiding to the law.







ATTACHMENT

REFERENCES
MOHAMED, A. P. B., & BERHAD, N. P. M. INDUSTRIAL COURT OF MALAYSIA.
Selznick, P., Nonet, P., & Vollmer, H. M. (1969). Law, society, and industrial justice. Russell Sage Foundation.

Wikipedia. (2015). Private Law. Wikipedia Online. Accessed at 8th November 2015, From: https://en.wikipedia.org/wiki/Private_law

Weinrib, E. J. (2012). The idea of private law. OUP Oxford.







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