Week 1: Chapter 2 - Introduction to the Legal System
What is Law?
- Difficult to come up with a satisfactory, all-inclusive definition for law
- Law is the body of rules made by government that can be enforced by the court
or by other government agencies
- Government agencies also enforce laws
- Law and morality are no synonymous
- Law makes rules and regulations that orders society
- Natural Law Theorists– defined in moral terms, only good rules are considered
law
- Legal Positivists– looking at the source, rules enacted by those with authority to
do so qualify as law
- Legal Realists– defined in practical terms, only those rules that courts are willing
to enforce qualify as law
- Law is the body of rules made by government that can be enforced by the courts
or by other government agencies
Categories of Law
- Substantive Law
- The rights and rules that govern behaviour and set limits on conduct
- Not only the rights an individual has in society, but also the limits on his or
her conduct. The rights to travel, to vote, and to own property. Prohibitions
against theft are included.
- Public Law
- Includes Constitutional Law and determines how the country
is governed and regulates our relationship with government
- Laws that affect individuals’ relationships with the
government. Criminal law and the regulations created by
government agencies are also included.
- Private Law
- Governs personal, social, and business relationships
- Contract law and tort law are examples.
- Enforced by one person suing another in a private or civil
action.
- Procedural Law
- Determines how substantive laws will be enforced
- The rules governing arrest, investigation, and pre-trial and court processes
in both criminal and civil cases.
,Civil Law Legal System
- Quebec’s noncriminal legal system is based on the French Civil Code
- French civil law is its central code
- A list of rules stated as broad principles of law that judges apply to the
cases that come before them
- Prior decisions do not constitute binding precedents
- Rules set out in the civil code to resolve private disputes in that province
- Civil code also applies to tort cases,
Common Law Legal System
- Common law system emerges in England
- Feudal system centralised power in hands of king
- During reigns of weak kinds, power was decentralised
- Royal judges became fairer to attract more litigants and broadened the
authority of the state
- Function of the the royal court was to be impartial and enforce customs and
traditions already in place
- President– demand the courts look at similar cases to their own, to make a
similar decision
- Court of Common Pleas, Court of King’s Bench, and Exchequer Court all fall
under this umbrella
- Roman Civil Law
- Concepts of property and possession
- Canon or Church Law
- Law in relation to families and estates
- Law Merchant
- Trading between nations by merchants
Stare Decisis
- A system of justice where judges are required to follow precedent (follow each
other’s decisions)
- Most significant feature of the common law system: the decision of a judge is
binding on all judges on lower courts
- Allows the parties to predict the outcome of the litigation and thus avoid going to
court
- Following precedent can be inflexible and may not acknowledge changing social
attitudes
- Plays the same role as in the English system as the Civil COde plays in the
french system
, - Stare Decisis provides predictability
Bijuralism
- Two legal traditions - civil law and common law coexist in Canada
- Bijuralism does not exclude recognition of other rules such as international law
- Courts demonstrate respect for other legal cultures, including those of
Indigenous peoples of Canada
- Territories have legislative jurisdiction in all matters relating to property and civil
rights through federal legislation
Equity
- Common law courts have limitations due to the restrictions of stare decisis
- Court of Chancery (Equity) dealt with matters that could not be handled
adequately or fairly by the common law courts
- Resulting principles known as the Law of Equity
- Did not hear appeals
- Allowed flexibility in decisions but also appeared arbitrary
- If common law courts had no remedy or inadequate
- Courts of Chancery helped developed the Trust (one party holds property for
another)
Statutes
- Legislation and takes precedence over judge-made law based on either
common law or equity
- Parliamentary supremacy dictates that where case law and statute law conflict
statutes prevail
- The courts cannot overrule Parliament’s legislation and no Parliament can pass
laws that future Parliaments cannot change
- Statutes and legislation determine what we must do to carry on business in
Canada
Confederation
- British North America Act created Canada in 1867
- Now the Constitution Act, 1867
- Constitution similar in principle to that of the United Kingdom
- Magna Carta
- English Bill of Rights
- Rule of Law: Citizens are protected from the arbitrary actions of the
government
- Statute of Westminster (1931)
, - Constitution Act, 1982, , British North America Act, BNA Act)
- The “rulebook” that government must follow
- Charter of Rights and Freedoms
- Canada’s Constitution has three elements:
1. Statutes
2. Case Law (i.e jurisdiction to create statutes)
3. Conventions: unwritten rules dictating how the government is to operate
and include the rule of law
Constitution and Division of Powers
- Constitution Act, 1867 and the Charter of Rights and Freedoms place some
limitations on supremacy of Parliament
- Sections 91 and 92 divide powers between federal and provincial governments
- Section 91, federal government power to make law with respect to area
not listed in the constitution
- Section 92, provinces given boardend powers to make law with respect to
all matters of a local or private nature
- Each province has powers to establish rules in those areas over which it has
jurisdiction
- Rule of Law– recognizes parliament is supreme, make any appropriate aw,
citizens are still protexted
Division of Legislative Powers
- “Peace, Order, and Good Government” (POGG) clause
- Federal government has residual power to make law on things not
included in Constitution Act
- Divides law making power among three branches of government:
What is Law?
- Difficult to come up with a satisfactory, all-inclusive definition for law
- Law is the body of rules made by government that can be enforced by the court
or by other government agencies
- Government agencies also enforce laws
- Law and morality are no synonymous
- Law makes rules and regulations that orders society
- Natural Law Theorists– defined in moral terms, only good rules are considered
law
- Legal Positivists– looking at the source, rules enacted by those with authority to
do so qualify as law
- Legal Realists– defined in practical terms, only those rules that courts are willing
to enforce qualify as law
- Law is the body of rules made by government that can be enforced by the courts
or by other government agencies
Categories of Law
- Substantive Law
- The rights and rules that govern behaviour and set limits on conduct
- Not only the rights an individual has in society, but also the limits on his or
her conduct. The rights to travel, to vote, and to own property. Prohibitions
against theft are included.
- Public Law
- Includes Constitutional Law and determines how the country
is governed and regulates our relationship with government
- Laws that affect individuals’ relationships with the
government. Criminal law and the regulations created by
government agencies are also included.
- Private Law
- Governs personal, social, and business relationships
- Contract law and tort law are examples.
- Enforced by one person suing another in a private or civil
action.
- Procedural Law
- Determines how substantive laws will be enforced
- The rules governing arrest, investigation, and pre-trial and court processes
in both criminal and civil cases.
,Civil Law Legal System
- Quebec’s noncriminal legal system is based on the French Civil Code
- French civil law is its central code
- A list of rules stated as broad principles of law that judges apply to the
cases that come before them
- Prior decisions do not constitute binding precedents
- Rules set out in the civil code to resolve private disputes in that province
- Civil code also applies to tort cases,
Common Law Legal System
- Common law system emerges in England
- Feudal system centralised power in hands of king
- During reigns of weak kinds, power was decentralised
- Royal judges became fairer to attract more litigants and broadened the
authority of the state
- Function of the the royal court was to be impartial and enforce customs and
traditions already in place
- President– demand the courts look at similar cases to their own, to make a
similar decision
- Court of Common Pleas, Court of King’s Bench, and Exchequer Court all fall
under this umbrella
- Roman Civil Law
- Concepts of property and possession
- Canon or Church Law
- Law in relation to families and estates
- Law Merchant
- Trading between nations by merchants
Stare Decisis
- A system of justice where judges are required to follow precedent (follow each
other’s decisions)
- Most significant feature of the common law system: the decision of a judge is
binding on all judges on lower courts
- Allows the parties to predict the outcome of the litigation and thus avoid going to
court
- Following precedent can be inflexible and may not acknowledge changing social
attitudes
- Plays the same role as in the English system as the Civil COde plays in the
french system
, - Stare Decisis provides predictability
Bijuralism
- Two legal traditions - civil law and common law coexist in Canada
- Bijuralism does not exclude recognition of other rules such as international law
- Courts demonstrate respect for other legal cultures, including those of
Indigenous peoples of Canada
- Territories have legislative jurisdiction in all matters relating to property and civil
rights through federal legislation
Equity
- Common law courts have limitations due to the restrictions of stare decisis
- Court of Chancery (Equity) dealt with matters that could not be handled
adequately or fairly by the common law courts
- Resulting principles known as the Law of Equity
- Did not hear appeals
- Allowed flexibility in decisions but also appeared arbitrary
- If common law courts had no remedy or inadequate
- Courts of Chancery helped developed the Trust (one party holds property for
another)
Statutes
- Legislation and takes precedence over judge-made law based on either
common law or equity
- Parliamentary supremacy dictates that where case law and statute law conflict
statutes prevail
- The courts cannot overrule Parliament’s legislation and no Parliament can pass
laws that future Parliaments cannot change
- Statutes and legislation determine what we must do to carry on business in
Canada
Confederation
- British North America Act created Canada in 1867
- Now the Constitution Act, 1867
- Constitution similar in principle to that of the United Kingdom
- Magna Carta
- English Bill of Rights
- Rule of Law: Citizens are protected from the arbitrary actions of the
government
- Statute of Westminster (1931)
, - Constitution Act, 1982, , British North America Act, BNA Act)
- The “rulebook” that government must follow
- Charter of Rights and Freedoms
- Canada’s Constitution has three elements:
1. Statutes
2. Case Law (i.e jurisdiction to create statutes)
3. Conventions: unwritten rules dictating how the government is to operate
and include the rule of law
Constitution and Division of Powers
- Constitution Act, 1867 and the Charter of Rights and Freedoms place some
limitations on supremacy of Parliament
- Sections 91 and 92 divide powers between federal and provincial governments
- Section 91, federal government power to make law with respect to area
not listed in the constitution
- Section 92, provinces given boardend powers to make law with respect to
all matters of a local or private nature
- Each province has powers to establish rules in those areas over which it has
jurisdiction
- Rule of Law– recognizes parliament is supreme, make any appropriate aw,
citizens are still protexted
Division of Legislative Powers
- “Peace, Order, and Good Government” (POGG) clause
- Federal government has residual power to make law on things not
included in Constitution Act
- Divides law making power among three branches of government:
