Legal

• Civil law is a legal system based on codified laws and statutes.
• Constitutional law governs the structure and operation of government institutions and protects individual rights.
• Statutory law refers to laws passed by legislative bodies, such as Congress or Parliament.
• Common law is a legal system that relies heavily on precedent set by previous court decisions.
• Customs are the established habits and informal rules followed by people in a society, emerging as an important source of law in common law systems.
• Lawyer - someone who is trained to give legal advice and represent people in court
• Illegal - not allowed by law, against the law
• Precedents are decisions made by higher courts in previous cases which function as secondary or supplementary sources of law.
• Legislation refers to the laws passed by parliament or congress which form the primary source of law in democracies.
• Law is defined as a system of enforceable rules that govern the relationship between the individual members of a society and between those members and the society itself
• Three types of rules:

  • General norms or standards of behaviour
  • Condition rules
  • Power-conferring rules
• Law is distinguished by its enforceability through state-sanctioned mechanisms/institutions
• Law and ethics share a common value system
• Three models of justice:

  • Corrective Justice (best suited to private law disputes)
  • Retributive Justice (most relevant to criminal law)
  • Distributive Justice (public law matters)
• Jurisprudence includes:

  • Analytical jurisprudence: What the law is
  • Normative jurisprudence: What the law ought to be
• Rule of Law:

  • Everyone in a society should be treated equally before the law
  • Power under the law should not be used arbitrarily
• Legal Terminology:

  • Legal language is specialized
  • Legal language remains a challenge for new law students
• Critical Legal Studies:

  • Concerned with exposing law as an instrument of the rich and powerful
• Deontological theories focus on the inherent rightness or wrongness of behavior, without regard to the behavior's consequences or outcomes
• Distributive Justice:

  • Concerned with appropriate distributions of entitlements, such as wealth and power, in a society
• Ethics:

  • Standards of right and wrong, often applied to specific groups or professions
• Feminist Theorists of Law:

  • Concerned with the legal, social, and economic rights of women
• Legal Positivism:

  • The only valid source of law is the principles, rules, and regulations expressly enacted by institutions or persons within a society
• Legal Realism:

  • Encourages a more thoroughly empirical study of the process by which laws are made and applied
• Marxist Theorist of Law:

  • Concerned with the distribution of wealth in a society, related to distributive justice theories
• Rule of Law:

  • Central tenets are that everyone is equal before the law and that power under the law should not be used arbitrarily
• Sociology of Law:

  • Looks at law from a broadly social, interdisciplinary perspective
• Public Law:

  • Deals with the legal relationship between persons and the state and between the various organs of the state
• Retributive Justice:

  • Based on lex talionis, or the law of retaliation, more relevant to criminal law
• Substantive law: law that deals with core rights and obligations
• Common law system:

  • System used in most of Canada
  • Two primary sources of law: Legislation and case law
  • Defining feature: judges follow precedent
  • Prior to the 1066 Norman invasion, no centralized nationwide justice system existed in England
  • William the Conqueror contributed to the formation of the common law system
  • Chief features of Common Law:
  • Use of precedents: Judges apply earlier judicial decisions to present cases if facts and law are similar
  • Principle of stare decisis (“to stand by decided matters”)
• • Adversarial court process: truth will best be determined when opposing lawyers present their cases without interference from the trial judge
• Civil law system:

  • Evolved in continental Europe
  • The civil code is the primary source of private law
  • Precedents are used but are NOT binding
  • Civil law applies in respect of private law matters
  • Methods and techniques of analyzing legal issues are different from those of the common law system
  • Judges must consult the civil code and decide cases in accordance with the code’s general principles and laws
• Indigenous law:

  • 2015: Truth and Reconciliation Commission of Canada (TRC) recommendation
  • Imposing order on Indigenous peoples that was not their own
  • Since TRC report and UNDRIP, Indigenous legal traditions are widely acknowledged
  • An interconnection between Indigenous law and Canadian law exists but more education is required
• Key terms:

  • Aboriginal law: sub-area of Canadian public law involving rights, land claims, and other legal issues concerning indigenous peoples in Canada
  • Adversarial system: system used in common law courts where the primary responsibility for the presentation of cases lies with the opposing litigants and their counsel
  • Bijural: term describing the operation of two legal systems in one jurisdiction
  • Bill of Rights (1689): English statute that formally ended the power of the Crown to legislate without the consent of Parliament
• • Binding: term used to describe a higher court decision that a lower court in the same jurisdiction must follow according to the principle of stare decisis
• Key factors leading to Confederation:

  • Political statement in Province of Canada
  • Influence of the United States
  • Expansion of railways across British North America
  • Hopes for a larger domestic market for manufactured goods
  • British support and approval for Confederation
• Framers of the BNA Act adopted federalism

  • An American political idea (not English)
  • Legislative union unacceptable to Maritime provinces and Quebec
  • Powers divided between the new Canadian federal government in Ottawa and the provinces
  • Macdonald’s vision: Federal Parliament handles general interests of the Confederacy, while local interests and laws are entrusted to local bodies
• Post-Confederation Problems:

  • Omission of an amending formula
  • Absence of an entrenched Charter or Bill of Rights for Canadian citizens
  • Created without consulting the First Nations
  • Lack of clarity surrounding final court of appeal
• Patriation of the Constitution:

  • Pierre Trudeau sought to patriate the Constitution from Britain
  • Rise of Quebec nationalism in the 1960s and 1970s provided an added incentive
  • Indigenous peoples increased activism for their rights to be entrenched in the new Constitution
  • Women lobbied for inclusion of equality provisions