Law and Rules

• Rules are something that determine how you behave whereas laws are a group of rules that are established by authority. (government)
• Laws can be made at local, national or international level
• The difference between rules and laws are that the penalty for breaking a law is greater than breaking a rule, and laws are made by the government or authority while rules can be implemented by anyone.
• We need laws to: Enforce rules, discipline society, protect the rights and freedom of individuals, protect society, reduce chaos.
• Characteristics of law - 1. Laws are established by authority such as the government. 2. Laws are mandatory (slightly flexible)3. Law involves a detailed system of consequences.
• Five functions of law: 1. Establish rules and conduct 2. Provide a detailed system of enforcement 3. Resolve disputes 4. Protect society 5. Protect the rights and freedoms of individuals
• Three aspects of Law: 1. Individuals must recognize that laws are necessary to regulate society. 2. The law applies to everyone including those in power such as police officers, judges, and politicians 3. No one in society is allowed to take away our rights expect in accordance to the law.
• Concepts of Law: Morality, justice, legal philosophy, and social theory
• Morality is needed to create a group understanding of what's right and wrong. Morality has two parts: Traditional and Contemporary. Traditional is a religious law that exists as a moral guide and educator, where as contemporary is A-religious and exists to keep social order and further the collective goods
• Justice: A principle of morality that states that everyone should be treated equally and fairly.
• 4 characteristics of justice: 1. Treat like cases alike, different cases differently. 2. Justice should not be earned based on irrelevant circumstances. 3. Justice should be impartial - not based on wealth or position. 4. The law should conform to society's values and beliefs.
• Legal Philosophy: Refers to how philosophers think about the law. There are four main philosophers in this field: Thomas Hobbes [17th century], JJ Rousseau [18th century], John Austin [19th century], AV Dicey [20th century]
• Thomas Hobbes: He states that mankind originally lives in a "state of nature" where they are all equal and have no government. Also states that the state of nature is a state of war. To escape the “state of nature” mankind formed a society run by laws.
• 1. Jean Jacques Rousseau: Says that humans naturally live in harmony with one another but when we become civilised our natural goodness disappears. He states that " Man is born free and everywhere he is in irons" He had the idea that men were noble savages and will protect themselves naturally - “Frontier Justice, Vigilantes”
• John Austin: He supported the idea that of "Legal positivism" - laws were not enforceable unless formed by a ruler. Basically, men don't make the laws rather they need a ruler to create and enforce them = “no vigilante justice”
• AV Dicey: He believed that there was only one source of law which was Parliament. This meant that judges could not interpret the law as it would go against parliamentary sovereignity. He also stated that the rule of law means that every person has an equal right to protection under the law.
• Rule of Law: It ensures equality before the law and prevents abuse of power by those who govern us.
• Social theory: Historic field of study and thought by social theorists.
• Critical Theories - Karl Marx (19th century): Critical theory is any approach to social analysis that focuses on assessment and critique of society and culture in order to reveal and challenge power structures.
• Early Roots of law: At what point in human history did we start making rules and laws for each other>
• Religion and Law: -Religious laws were used to control the population and to maintain social order. - In the middle ages of Great Britain, christianity was the primary religion. - The church was the main source of law and justice. - In some cases, god became the primary figure in determining the guilt of the accused.
• Various Trials with God as a judge:

  1. Trial by oath healing

  2. Trial by combat

  3. Trial by Ordeal
• Trial by Oath Healing - A trial where two people would swear an oath to god about whether or not they committed the crime. If one person swore falsely, he/she would suffer from illnesses until they confessed.
• Adversarial System - The system of justice in which the prosecution and the defense are in direct opposition to each other.
• Common Law - A legal tradition based on judicial decisions and precedents established over time.
• The feudal system - Old system of land ownership - based on a hierarchy with th king at the top, using nobles to govern the land
• Case law is created when judges make decisions in court cases that set out rules for future courts to follow
• Rule of Precedent: The principle that a court will follow the decision of a higher court in a similar case.
• Magna Carta - Signed by King John of England. It was the first charter of political and civil rights.
• First Nations contributions - The Great Law of Peace. It was an agreement amongst nations to develop a new society --> connections to the earth (Environmental Law).
• Quebec Civil Code - System of law used in Quebec for resolving private matters. It was divided into 10 books of different areas of law.
• What did other societies contribute to canadian law?

  • Magna Carta, First Nation Contributions, and Quebec Civil code
• Origin of Canada's Constitution - 1867: The British North America Act which was a legal document that created Canada. It decided on the rules and regulations for the new country. The prime minister at the time was John MacDonald. There were 4 provinces during the signing: ONT, QUE, NS, NB
• The Charter of Rights and Freedoms is part of the Canadian constitution. It protects individual rights from government interference. It came about because of the patriation movement.
• Influences on Canadian Constitution - Constitution Act 1867 - British North America Act. This act created the dominion of Canada, an independent country with economic and political ties to Britain. Also a country with two level of government (federal & provincial). Established a separation of powers between 3 branches of government.
• 3 branches of government : Legislative Executive Judicial
• Major additions to the constitutions - Emphasized the rights of the people and the government's responsibility to protect them. The Charter of Rights and Freedoms was added to the Canadian Constitution in 1982. Principals of Equalization - The principle that all provinces receive the same amount of federal funding regardless of their size. This chart was signed by Pierre Elliott Trudeau. State of westminster, 1981. Canada was able to make its own laws and was no longer subjected to the law of Britain.
• Sources of Law - In the Canadian legal system, statute law, common law, and constitutional law make up the sources of law.
• Statute Law - A law made by Parliament and passed by the monarch.
• Constitutional Law - The law that governs the relationship between the people and the government.