You are on page 1of 2

Quiz 3

Define unwritten law and types of unwritten law.

Malaysian law is derived from both written and unwritten sources. Unwritten
law, refers to the law that has not been formally enacted. The unwritten law consists of
case law such as decisions of the superior courts which are binding on the lower courts,
customary law for example local customs which have been accepted as law by the courts
and applicable principles of English common law and equity. All that portion of the law,
observed and administered in the courts, which has not been enacted or promulgated in
tlie form of a statute or ordinance, including the unenacted portions of the common law,
general and particular customs having tbe force of law, and the rules, principles, and
maxims established by judicial precedents or the successive like decisions of the courts.
Below listed types of unwritten law;

Firstly the types of unwritten law is English Common Law and the rules of equity.
This is also a very important source of Malaysian law. Sections 3(1) and 5(1) of the Civil
Law Act 1956 specifically permit the reception of English common law and equity in
Malaysia subject to the limitations contained therein. However, the reception of English
law and equity are subject to certain general exceptions. In particular, English law may
only be applied where (1) there is no local law governing the matter and (2) if it is
suitable to the local circumstances.

Secondly the types of unwritten law is Judicial Precedents. This refers to the law as
developed through cases decided in the superior courts. Sometimes referred to as judge-
made law, it is another very important source of law. Under the doctrine of binding
judicial precedent, which is also observed in Malaysia, the decisions of the higher courts
must be followed by the lower courts in similar cases. This generally ensures a fair and
uniform application of the law.

Thirdly the types of unwritten law is Islamic Law. This is another important source
of Malaysian law, particularly in matters relating to marriage, divorce and
inheritance among Muslims. It is only applicable to Muslims. Islamic law is administered
at State levels by a separate system of courts called the Syariah courts.
Lastly the types of unwritten law is Customs. This refers to the customs of the local
inhabitants which have been accepted as law. It mainly relates to family matters, e.g.
marriage, divorce and inheritance. Generally, the customs of Chinese and Indians relating
to marriage and divorce are no longer of much importance since the passing of the Law
Reform (Marriage and Divorce) Act 1976, which abolished polygamous marriages among
them. However the customary laws of the Malays (also called adat law) and in East
Malaysia, native customary law, continue to be important sources of law.

You might also like