Introduction to Legal Studies/LAWS1000
Week Two – September 22, 2016 Law in Social Life
What is law? – moral order
1. What is law’s function in society?
2. What are the structures through which it executes those functions – that is, what does law look
Cohersion: law is all about
Karl Marx: Law as a “pervasive legitimizing ideology” that masks the relationships of
exploitation that was integral to capitalism.
Rejected the notion that the “best possible society can be realized through state-medicated
Law breaking doesn’t always lead to apprehension and apprehension doesn’t always lead to
Posited four styles of social control:
Penal; punitive, law-breaking leads to apprehension & punishment
Compensatory: crime & conflict violate ‘social contract’ & leads to debt and restriction to
redress the debt
Therapeutic: medical model, crime/conflict is a result of abnormality which requires help or
Conciliatory: crime/conflict us a social conflict between individuals which requires resolution
Is the relationship between law and crime inverse?
Not necessarily. (Ex; Hoebel and the Cheyenne Nation)
Law in homogeneous (more social consequence) and heterogeneous and heterogeneous societies.
Formal v. informal social control
Formal Social Control=Large, complex, heterogeneous societies
Informal Social Control= Smaller, simpler, homogeneous societies
Characteristics of Formal Social Control
1. Explicit rules of conduct – written down and codified
2. Planned use of sanctions to support the rules – consequences or wrong doing are well
known characterized by certainty, celerity and severity – or are they?
3. Designated officials to interpret and enforce the rules, and often to make them
External v Internal social control – what makes us behave? Weber: focused on question of conformity
• Formality & rationality in the legal system
• Rational legal system apply clear rules fairly to equally situated people
Marx: relationship between law and capitalism
• Capitalist Societies create a unique form of law and legal system which reinforce
relationships of inequality
Hoebel: law is product of society
• All societies will create rules & structures for responding to rule-breaking & rule
• Four functions of law
The definition of relationships among members of society.
• The law specifies boundaries on behavior
• Boundaries create predictability
• Predictibity is a necessary thing.
Black: law as quantitative variable
• Complex vs. simple societies/formal vs. informal law
• Four styles of social control (1. Penal. 2. Compensatory. 3. Therapeutic. 4. Conciliatory.)
The allocation of authority and the right to excersize physical coercion as a socially – recognized
privilege right, this requires three additional things.
• Allocation of authority
• Determination of who may recognized privilege-right
• Selection of most effective sanctions
The disposition of trouble-cases as they arise.
• Somebody/something has to ‘clean the case up’
To adapt to change in social life and redefine relationships accordingly.
• As noted earlier – law both directs and reacts to social changes.
Four problems with Western Legal Systems
1. Courts are located outside the geography of daily life
2. Courthouses are complex & difficult to navigate
3. Parties are peripheral to much of the proceedings
Legal proceedings translate conflicts between parties into conflicts between the state and the
The dominant western legal system and law are limited in that;
1. Conflicts must be divorced from their context in order to be managed
2. Conflicts become the property of the system or ‘defined away’ • Law is a product of society
• Law exists in symbiosis with society, that is, law both shapes and is shaped by society.
• Although different social and cultural contexts will created different laws and legal
structures, virtually all forms of law and legal structures perform similar functions for
Russell & the Environment of Canadian Law
Three predominant environmental influences on Canadian law & legal system:
1. Socioeconomic Development. Does not affect legal system in a uniform way.
Urbanization and Industrialization alter relationships in society & thus impact conflict &
its resolution. Courts assume some of this role, but so do other dispute resolution
2. Political Beliefs and Ideology. Increasing respect for liberal ideas of equality, human
rights and dignity shape access to justice (ie, legal aid), the law & legal system. Distrust
of government as guardian of rights shifts this responsibility to the courts.
3. The Culture of the Legal System. Roots in British common law and French civil law.
Most important common law influences on Canadian legal system. (Centrality of the
judiciary. Powers of lawyers.)
How did Canada obtain a Mixed System?
1. French Civil law tradition brought to Canada by French.
2. British Common law tradition brought to Canada by British.
3. Post 1760, British granted New France right to retain its language, religion & laws.
Result: Quebec has both civil and common law; Canada has a common law system.
Problem: Supreme Court of Canada is a common law court.
• Reconciling different approaches to precedent.
• Stare Decisis: “to stand by the decided case” ‘
Common Law Tradition:
• Law resides in cases (that is, in precedent, and in the accretion of law through judicial
• Cases decided largely be reference to precedent
• Cannot disregard precedent, must ‘distinguish’
• Cases are key!
Civil Law Tradition
• Civil code is the foundation and the primary organizing source of law
• Cases decided by reference to letter & spirit of law
• Judges are free to disregard precedent
• Legal scholarship is key!
The Common and Civil law collide:
• Quebec & Supreme Court Precedent
• Efforts to reconcile civil & common law • i.e., Canadian Pacific Railway v. Robinson.
• SCC attempted to unify the private law by importing common law principles into civil
Stare decisis in Quebec – two factors
1. Judiciary in Quebec administrator a ‘mixed system’
2. Judiciary in Quebec structured very similarly to those outside Quebec, so some overlap is
More similarities than differences?
Adjustment & Accomidation
Bouchard & Taylor
• Resolution of conflicts over rights often a balancing act
• Best outcome: a compromise which achieves minimal infringement of all parties’ rights.
Week Three – September 29, 2016 - The Constitutional Context
Background to the Constitution:
a. British North America Act – the chore char of Canadian federalism
b. Constitution Act, 1867 – the entrenched model
What the Constitution Act, 1867 did:
a. Brought together provinces and federal government in a federalist system.
- Federalism: the political mechanism by which diversity could be reconciled with
- Powers divided between central federal government and provincial governments
b. Recognized power of Crown and Parliament of Great Britain over Canadian Dominion
c. Created unified system of interprovincial trade and commerce
What the Constitution Act, 1867 did not do:
a. It did not impose a common system of law on the provinces
b. It did not grant Canada real independence from Great Britain
What did this mean?
a. UK parliament could pass legislation bindings on Canada
b. Canada could not amend Constitution without British approval
c. Judicil Committee of the Privy Council remained final appeals court
Independence from Great Britian more important after 1930:
a. Statute of Westminster, 1931, confirmed legislative independence
b. Appeals to Judicial Committee of Privy Council ended in 1949
Canada Act, 1982
a. Secured full independence from U.K.
b. Caanda gained full control over Constitution & Constitutional Amendment
c. Charter of Rights and Freedoms The Charter of Rights and Freedoms
a. Impacts on constitutionalism (Berger)
b. Role of judiciary before 1982
c. Role of judiciary after 1982
Principles Underlying Canadian Constitutional Arrangements
a. Principle that parliament is supreme law marker for the country
b. Parliamentary Supremacy linked with concept of Democracy
c. Rebalancing of tension between political will and universal rights
d. After 1982, Supreme Court of Canada became highest law-making body and thus a check
on Parliamentary Supremacy
The Rule of Law
a. Principle that all persons are bound to laws of Canada and must respect those laws,
including those who pass them
b. Reference e the Secession of Quebec: “the rule of law vouchsafes to the citizens and
residents of the country a stable predictable and ordered society in which to conduct their
affairs” (CR, p.21)
a. “the Constitution is the supreme law of th country, and any law that is inconsistent with
the provisions of the Constitution is, to the extent of the inconsistency, of no force of
effect” (Reference re the Secession of Quebec, CR, p.21)
b. All government action must comply with the Constitution.
a. Parliament has the power to make the laws and all people are subject to the will of
b. Roncarelli vs. Duplessis
a. Judges must be free to make decisions from political interference or government
The Constitutional Arrangements – the division of powers
Division of Powers
a. S.91: Federal powers over “peace, order and good government”
b. S.92: Provincial powers – especially s.92(13): “Property and civil rights in the province”
What does gun control matter?
a. Most guns used for illegal purposes are legally owned
b. Three sources of guns used for criminal purposes: 1. Legal guns which are misused by their owners
2. Legal guns diverted to illegal markets
3. Smuggled guns originating from the US
Reference re Firearms Act
a. The issue: whether Canada was intra vires or ultra vires their constitutional jurisdiction
when they passed this Act
b. 3 criteria determine jurisdiction:
1. is there a valid criminal law purpose?
2. It that valid purpose backed by a prohibition?
3. Is that prohibition backed by a penalty?
c. The decision: is gun control a matter of property rights or peace, order and good
The BIG Picture:
a. Constitution Act, 1867 defines basis open which our federation functions and the
responsibilities which fall to federal and provincial governments.
b. Key principles of Canadian Constitutional Arrangements:
1. Parliamentary Supremacy
2. Rule of Law
4. Responsible Government
5. Judicial Independence
Week Four – October 6, 2016 - The Charter of Rights
“A constitutional charter is in keeping with purest liberalism, according to which all members of
a civil society enjoy certain fundamental, inalienable rights and cannot be deprived of them by
any collectively (nation, ethnic group, religious group or other)” – P.E. Trudeau “The concept of
Citizenship and Rights
How do we get citizenship and rights?
b. Immigration, naturalization, citizenship
c. Who should have rights?
Rights, Obligations, and Citizenship
a. Marshall: “Rights as Citizenship”
b. “New Right”: “Passive Citizenship” and the tension between rights and obligations.
Citizenship and Charter Rights
a. S.2 “fundamental freedoms”
b. Ss.7-14 “legal rights”
c. S.15 “equality rights” Qualifications on Rights
a. S.33 “notwithstanding clause”
b. S.1 test
The Origins of Equality
a. Chronology of Rights Legislation
- 1948 Universal Declaration of Human Rights
- Ontario Racial Discrimination Act, 1944
- Canadian Bill of Rights, 1960
- Canadian Charter of Rights and Freedoms, 1982
The Canadian Approach to Rights
International human rights approach
- Emphasizes idea that people should be free from an intrusive state and treated with
dignity and have necessary means for full and equal participation in society
- Requires balancing the rights of individuals with the collective social interest
- Recognizes that there are groups in society that may need special protection
- Emphasizes that society should be free from discrimination
Women’s Role in Creation of Charter
Rights groups lobbied for;
a. Broader language or equality than that found in Bill of Rights – “equal benefit of law”,
“equal under law” (see s.15 Charter)
b. Stringent judicial review of gender-based discrimination
c. Inclusion in Charter of a general statement in equality between men and women (see s.28
Andrew v. Law Society of BC
a. Challenged denial of license to practice law in BC
b. Claimed violation of equality rights
c. LEAF intervened; argued for greater, substantive equality under s.15 than ‘similar
situated’ approach taken by the lower courts
- Equality of opportunity and result, as opposed to similar treatment of similarly-
Surpreme Court in Andrews help:
a. Purpose of s.15 is protection and promotion of substantive equality
b. Charter’s equality provisions have “large remedial component”
- Legislatures must take positive measures to improve the status of disadvantaged
L’Heureux-Dube asserts focus on equality has impacted virtually all legal fields in Canada
including: 1. Criminal Law: Rape Shield Ruling
2. Family Law: Taxation of Child Support
3. Employment Law: Anti-discrimination in workplace
4. Tort Law: Inclusion of importance of women’s experience in law’s development
Substantive equality is important, but is it sufficient?
a. Focus on Charter and Canadian Law is INDIVIDUAL.
b. How to manage tension between individual and collective in social contexts where these
are indivisible (i.e., membership by-laws in first nations
c. Focus on Human Rights at the expense of Rights of other beings
d. Degradation of lived environment
e. Elevation of profit over other considerations – pipelines?
Rights and Fairness
Baker v. Canada (Minister of Citizenship and Immigration)
c. Procedural fairness in humanitarian and compassionate considerations cases
Procedural Fairness in Humanitarian and Compassionate considerations cases
- Decision-makes must be made “using fair and open procedure, appropriate to the
decision being made and its statutory, institutional, and social context, and with an
opportunity for those affected by the decision to put forward their views and evidence
fully and have them considered by the decision-maker” (p.210)
What does this mean?
- Five factors key common law duty of procedural fairness;
1. The nature of the decision being made and the process followed in making it; is the
2. The nature of the relevant statutory scheme; is there a right of appeal?
3. The importance of the decision to those affected by it; greater the importance, more
stringent are the requirements for procedural fairness.
4. The legitimate expectations of the claimant; that a certain procedure will be followed,
that a certain result will be reached. Within the procedural domain, taking into account
promises made o the claimant or regular practices of the decision-makers.
5. The choice of procedures made by the decision-makers and any relevant institutional
constraints – important but not determinative.
“The values underlying the duty of procedural fairness relate to the principle that the individual
or individuals affected should have the opportunity to present their case fully and fairly, and have
decisions affecting their rights, interests, or privileges made using a fair, impartial and open
process, appropriate to the statutory, institutional, and social context of the decision.” (CR, 211-
Is this what happened in the Baker case?
Consider the 5 factors: 1. H&C decision-making quasi-judicial
2. Does the statutory scheme justify greater or lesser protections?
3. What measure of importance does the case hold for the claimant?
4. What are the claimant’s expectations?
5. What procedures have the decision-makers instituted?
Court in Baker considered:
- “oral hearing not a general requirement for the H&C decisions” and thus not a
violation of procedural fairness.
- Provision of reasons for decision not required by case or common law, but reasons
may “foster better decision-making” and “allow parties to see that the applicable
issues have been carefully considered”
Court in Baker decided:
- Reasons necessary!
- Reasons were provided in the form of Officer Lorenz’s notes – but notes raised
“reasonable apprehension of bias” – so appeal allowed! (Baked won)
The BIG Picture:
- Citizenship carries rights, but rights should not be dependent on citizenship.
- Canadian human rights approach premised upon an ideal that people should be free
from an intrusive state, be treated with dignity and have necessary means for full and
equal participation in society.
- Focus is upon substantive equality, that is equality of opportunity and result, as
opposed to similar treatment of similarly-situated individuals.
- Decisions about rights must be informed by fairness.
Week Five – October 13, 2016 - Sources of Law in Canada
Origins of Canadian Law: civil law, common law, indigenous traditions
Civil Law Tradition
a. Roman influences – twelve tables, Justinian code and the coutumes
b. Quebec – 1866 Civil Code and today
Common Law Tradition
a. Norman Invasion and changes to English courts
b. Shires, Manorial courts, Ecclesiastic courts
b. Distinctive practices
c. Principles of restorative justice and restitution Important developments over time in common law
a. Kings peace – state assumes prosecutorial rights
b. Juries – judgment by a jury of your peers
c. Stare Decisis – “stand by the decided case”
Sources of Canadian Law
1. Subsidiary Sources
- General and specific customs
- Books of authority
2. Principal Sources
- “the deliberate creation of legal precepts by a body of government that tives articulate
expression to such precepts in a formalized legal document.”
- Two levels of legislation in Canada – federal, and provincial
- Cases previously decided, those decisions binding on lower courts and subsequent
- Comparing legislation and precedent
Stare Decisis – How precedent works
- Two components to judicial decisions
- Ratio dicendi – “the grounds for the decision”
- Obiter Dicta – “statements made in passing”
- Degrees of authority, distinguishing cases
- value of precedent and stare decisis
1. certainty and continuity
2. “rule of law, not a rule of men”
Llewewllyn’s “double doctrine of precedent”
1. strict view of doctrine of precedent
2. loose view of doctrine of precedent
The BIG Picture:
a. sources of law in Canada include civil law, common law, and indigenous traditions
b. sources of law re generally understood to be principal and subsidiary
c. principal sources: legislation and precedent
d. precedent=predictability but also creates problematic perception of separation between
judges and judging Week Six – November 3, 2016 - Organization and Structure of Canadian Law
a. British system within federal state structure (set or courts that are both provincial and
b. Constitution Act, 1867 delineates responsibilities for courts and administration of justice
What do these constitutional arrangements mean?
a. Most matters dealt within provincial courts
b. Judges of provincial courts may be federal or provincial appointments (who will see your
case is in the seriousness of the crime that has been committed)
c. Appeals heard by federally appointed judges
d. Federal and provinces have established specialized courts
a. Authority of a court to hear, adjudicate and give decisions
b. Authority derived from statues which may define jurisdiction in different ways. i.e.,
c. Lower level/inferior courts – limited jurisdiction!
d. Superior courts – largely unlimited jurisdiction!
The Structure of the Canadian Court System Inferior/Provincial Courts
a. Criminal Division
b. Youth and Family Division
c. Small Claims Division
1. Criminal Division
Summary & Indictable Offences
a. Summary offences – less serious, Triable by “JP” or Provincial Court Judge,
Information/laying of an information
b. Indictable Offences – more serious, carry more severe penalties.
3 types of Indictable Offences:
S.553 offences - provincial jurisdiction, no election (something that occurs if you are
convicted of a S.469), less serious crimes
S.469 offences – superior court jurisdiction, judge alone or judge and jury, serious
crimes (murder, attempted murder)
Residue – election (3 trial modes) All crimes that don’t fall within S.553, or S.469.
Hybrid Offences: Many offences can be prosecuted either by summary conviction or
indictment. The Brown chooses or elects the mode of prosecution. Such offences are
referred to as “hybrid” (or “Crown option” or “dual procedure”) Offences include
impaired driving, assault and theft under $5,000.
2. Youth and Family Division of Provincial Court
a. Hears matters arising within families
b. Some YCJ offences
c. Less formal and adversarial
3. Small Claims Division of Provincial Court – intended to be a relief, not to include
a. Meant to be ‘party-driven’
b. Deals generally with matters of contract and tort
c. Monetary jurisdiction usually under $25,000 in Ontario
The Superior Courts of the Province
1. Trial Division
2. Appeal Division
1. Trial Division:
a. All s.469 offences and all indictable with appropriate election
b. All civil within specified monetary jurisdiction
c. All libel and defamation
d. Appeals from provincial court criminal and family divisions e. Divorces where no unified family court
2. Appeal Division
a. All civil and family appeals from Superior court (Trial Division) on questions of law,
fact, or mixed law and fact
b. All criminal appeals from Superior court (Trial Division) on questions of law, fact, or
mixed and fact
c. Question of Fact: issue involves a factual dispute and falls to the jury or to judge
where she is trier of fact;
d. Question of Law: issue involves the application or interpretation of law and falls to
The Supreme Court of Canada
a. Established 1875
b. 8 Justices & 1 Chief Justice
c. “Leave to Appeal” – only where matter has public significance, in criminal matters on
question of law only, “on reference”, lawyers court.
Newest Nominee: Malcolm Row – Newfoundland hasn’t had a representative since 1949.
Criminal law, sentencing, supreme court in Newfoundland, follower of ‘living tree’.
Federal Court of Canada
a. Chief justice & 32 others
b. Jurisdiction primarily through Federal Court Act, includes: intellectual property,
immigration and citizenship, administrative law disputes involving federal government
employees, appeals from federal boards and tribunals
Federal Court of Appeal
a. Chief justice & 12 others
b. Hears appeals from Federal Court, tax court and select federal boards
c. Decisions can be further appealed to the Supreme Court of Canada
Canadian Courts – Essential Characteristics
1. Adversarial Procedure
a. Parties have primary responsibility for defining the issues and moving the case
through the system
b. Adversarial approach is premised on belief that truth is most likely to emerge through
the efforts of self-motivated parties seeking to present their best case before a neutral
c. Basic principles of adversarial system of criminal justice: presumption of innocence,
Crown bears burden of proof, Doli Incapax (don’t incriminate children under the age
of 12) , Non compos mentis/insanity (mental capacity), attempts are crimes.
2. Open Access
a. Hearings held ‘in camera’ b. Publication bans (two exceptions – if the younger offender is moved to an “adult
court”, youth is a danger – necessary for the public to know the danger)
c. Media access
d. ‘dignity and decorum’
e. Right to trail within a “reasonable time”
The BIG Picture
a. Canadian System replicates an English structure of inferior and superior trial courts and
two appeal courts within federal system
b. Jurisdiction is the authority of a court to hear, adjudicate & give decisions
c. Canadian system is an open and public adversarial system
d. Adversarial system emphasizes responsibility parties over their case and power of self
interest to achieve truth
Week Seven – November 10, 2016 - Regulating Economic Relationships
Private Law vs. Public Law
a. Public law regulates relationships between individuals in society, and includes for
example: torts, contracts, laws relating to intimate relationships
b. Public includes for example: criminal law, constitutional law
Trubek on Weber, Law and Capitalism
- Capitalism and legalism are intimately related
- Moderate highly rational adversarial legal system and structures that go along with it.
Two aspects of law important to capitalism
1. Its relative degree of calculability – degree to which law creates an atmosphere in which
individuals can make confident decisions about whether or to whom to sell their labor
2. Its capacity to develop substantive regulations, especially those related to freedom of
contract – law defines the ‘rules of the game’
Weber believed calculability is a crucial function performed by the law.
Key elements of Weber’s view
a. Symbiosis of capitalism and modern, rational legal system
b. Capitalism requires a particular set of legal structures
c. Balance in the system, through ‘conflict of egoistic wills’
d. Problem – how do we constrain the market? Self-interest/profit motive constrainer by interdependence
a. All participants in the marketplace are in some measure dependent on each other.
b. Interdependence constrains but also introduces instability
How do we control the instability and encourage calculability/predictability? Fundamental
problem of sociology: self interest v. social stability.
Webers Models of Social Action
Control of social action can be achieve in two ways
1. Internally – internalize norms of proper behaviour to encourage unconscious fulfillment
of social expectations
2. Externally – in market-based societies, esp. law and legal coercion.
What is it about the market system that makes coercion necessary?
1. Coercion is necessary because of the nature of the driving force behind the market system
2. Legal coercion is necessary to predictability
- Market system premised on interdependence defined by contract, essence of contract
Legalism constrains the marketplace and the state!
By constraining all, law ensures legitimacy, which reinforces legitimacy of the state:
“the relationships between law, the state, and the market are complex. Legalism, while seeming
to constrain the state, really strengthens it, and while the system guaranteed formal equality, it
also legitimized class domination”
“…by virtue of the principle of formal equality…the propertied classes obtain a sor of factual
What does the tension between formal and factual legal equality look like?
Rudder vs Microsoft Corp
a. Plaintiffs sought not to be bound by terms of the ‘member agreement’ between MSN and
b. Should consumers be bound by the terms of an agreement that is not only unreadable, but
possibly purposely so?
The BIG Picture:
a. Trubek and Weber: Capitalism and legalism are intertwined
- Capitalism requires a modern rational legal system which has a high degree of
calculability and is able to develop the rules of the game, especially those related to
contract - Capitalism/market relies on self-interest fettered by interdependence, but there must
be both internal and external controls which foster some predictability and insert
some measure of fairness
b. Legalism, formal equality actually contributes to and entrenches factual autonomy of the
Week Eight - Regulating Personal Relationships – November 17, 2016
Donoghue v. Stevenson
a. Plaintiff discovered remains of a dead snail in a soft drink
b. Does the manufacturer owe a duty to the ultimate purchaser of the soft drink? \
Rule is that “you must not injure your neighbor”
“The rule that you are to love your neighbor becomes in law: You must not injure your neighbor,
and the lawyers’ question: who is my neighbor? Receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbor” (p. 297)
But who is my neighbor?
“Who then, in law, is my neighbor? The answer seems to be persons who are so closely and
directly affected by my act that ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are called in question” (p.
c. Duty relies on proximity, and proximity will be defined as “such close and direct
relations” that an act directly affects a person whom the actor should have known would
be directly affected by his or her careless act.
d. If the person harmed was sufficiently proximate that you could anticipate that your
actions could cause them harm, then you owe them a ‘duty of care’
e. So, did Stevenson owe Donaghue a ‘duty of care’?
Childs v. Desormmeaux
Three situations in which proximity gives ride to a duty of care;
a. Where one party has invited the other to participate in a risky activity, there is an
obligation to minimize risk
b. Positive relationship of supervision and control
c. Public function carries implied responsibilities to the public and duty to be careful
Pettkus v. Becker
a. Equity favors equality, but not all contributions are considered equal
b. Formal equality may not lead to factual equality
c. And if you want to live in common law, get a contract. What is Crime? – November 17, 2016
What is crime?
a. How do we decide what activities are acceptable and which are unacceptable?
b. Who should decide?
c. What do you think crime looks like in Canada?
The Role of Criminal Law in Society
a. Law serves to reinforce the social, economic and political structures which are central to
b. “Ideological domination”: those forces which produce and reaffirm the existing social
order and play a role in perpetuating the class arrangements integral to capitalism
c. Law plays a central role in ideological domination
What is the nature of law’s role in ideological domination?
a. Law reinforces the existing order through its form and its functions
b. The Form of Law: “the distinctive feature of legal systems of class societies is the fact
that they embody the material interests of the ruling class in a universal form and thus
present the law as the embodiment of the interests of the community as a whole” (pg.
232-233) i.e., separation of powers, independence of judiciary
c. The Functions of Law: the way law appears to work in capitalist societies masks and
reinforces inequality. i.e., rule of law, law as ‘inherently rational’
“Domination of Hegemony”
a. Domination is a universal feature of class society whereby one of more classes are
subjected to another class or classes in a manner that perpetuates exploitation.
b. Domination is a process which consists of both direct and indirect forms of coercion
c. Hegemony is integral to domination, insofar as it:
- Focuses on the creation and mobilization of consent
- Consent managed through ability of capitalist class to “decisively influence the ideas,
attitudes and consciousness of the working class” so as to achieve the spontaneous
consent of the majority of the population to the general direction imposed on social
life by the dominant group
a. Law and legal system backed by ‘coercive power of the state’, which include police,
courts, correctional systems
b. The coercion is applied to reinforce the ‘general conditions’ of capitalist order by:
1. Crimes against property:
- Protection and reinforcement of relations of property
- Application of coercion to those who challenge those relations through application of
property law (specific and general deterrence)
2. Crimes against the person:
- Protect general social order as necessary precondition for capitalism
3. Crimes against public order - Protect capitalist order through ‘depoliticizing’ protests against capitalist
- Delegitimizing threats to that order through criminalization
a. Describes those activities and processes whereby assent to the existing order is produced
b. The process has two element
1. Differential ability of groups in society to produce, communicate and distribute ideas
2. These ideas have consequences for the maintenance of the existing capitalist order
Law is ideological – it conveys a set of attitudes, values, and theories about society and how it
works (or should work)
The BIG Picture:
1. Much in law and society is about contract ad thus regulation of relationships
2. Law is not neutral, and in both form and function serves to reinforce a particular set of
structures and interests
3. Law operates as a form of coercive domination and ideological domination
4. Law is both an instrument and a site of class struggle
Week Nine - November 24, 2016 – The Criminal Law Process
- Methods used to maintain order and promote predictability of behaviour
Two basic processes of social control:
a. Internalized of group norms
b. External behavioral controls
c. Specific and general deterrence
The Intent of the Criminal Law:
To define those acts which may be deemed to be threats to the established order of things, and to
apprehend and punish those who knowingly engage in those acts
- the process by which norms are moved from the social to the legal realm
- why do some norms become law, and others not?
Legal Regulation and Punishment
4. Rehabilitation Effectiveness of Punishment
Legal Elements of a Crime
Mens Rea: criminal liability must rest upon the free choice of an individual to do something he
knows or should know to be wrong
Actus Reus: the illegal act or object
Three elements of Mens Rea:
1. Choice to do something wrong
2. Choice must have been freely made
3. Accused knew or could at least appreciate the wrongfulness of what she/he chose to do
Three elements of Actus Reus
1. Conduct: voluntary act or object constituting the central feature of the crime
2. Circumstances: surrounding and material circumstances
3. Consequences: of the voluntary conduct
The Criminal Trial Process
1. Crown opens the trial by presenting its case
2. Defence presents its case
3. Closing Arguments – if defense did not present any witnesses, the Crown will make
closing arguments before the defense
4. Judgment – once closing arguments are made, the judge will decide whether to convict or
acquit. In practice, judges will often take a break to decide – break may be short or long
5. Sentencing – follows conviction, either immediately or at later date
What actually happens in Court?
1. Most crime in Canada is non-violent crime
2. Most accused are under the age of 35 (60%)
3. Most cases in adult criminal court are completed by a finding of ‘guilty’ (63%)
4. Ontario had the lowest rate of guilty findings in 2013/2014
5. Cases completed in adult criminal court involving violent offences resulted in a findings
of guilt less often than property offences, and administration of justice offences (50%
versus 59% and 72%, respectively)
1. Canada has 3 distinct correctional systems, including a youth system, an adult
provincial/territorial system, and an adult federal system
2. Each of these systems operates a variety of custodial facilities, including close custody
centers, detention centers, jails and penitentiaries
3. People are held in these facilities awaiting trial or sentencing, or serving a sentence The Federal Correctional System
1. Correctional Services Canada (CSC) operates penitentiaries
2. CSC is responsible for housing offenders serving custodial sentences ranging from two
years to life and/or indeterminate sentences
3. A life sentence in Canada means no parole eligibility for 25 years and supervision either
in an institution or the community for the rest of the offenders life
4. It is these longer sentences that are referred to when someone speaks or serving ‘federal
time’, they are referring to serving sentences up to two years less a day and in provincial
or territorial facility
Punishment in Real Terms
1. Canada;s incarceration rate is 117/100,000 population
2. 43% of cases in adult criminal court resulted in probation
3. 30% of cases resulted in fines
4. Slightly more than one-third of cases received a custodial sentence
- Mean length of custody was 30 days
- Only 3% of sentences are 2 years or more
- Most custodial sentences are less than 6 months
1. Law reinforces relationships of inequality
2. Justice is not blind
3. Indigenous people in Canada are significantly more likely:
- To be victims of violence
- To be arrested, charged and held in remand, and sent to prison
4. If sent to prison, Indigenous people are
- Classified as higher risk/need in terms of employment, community reintegration,
substance abuse and family supports
- Over-represented in segregation and maximum security
- Disproportionately involved is use of force interventions and prison self-injury
- Released later in their sentence
- More likely to return to custody
The BIG Picture:
1. Criminal law process is intended to determine guilt and impose punishment
2. Elements of criminal offence and standard of proof
3. Links between capitalism, inequality, law and justice Week Ten - December 1, 2016 – Law, Morality, and Justice
Law reflects the dominant normative positions in society. Normative positions about ‘right’ and
‘wrong’ reflect moral positions. But should the law be used to address moral issues? Can the law
avoid moral issues? Family law; no fault divorce? Criminal law; wrongful killing?
Almost all societies believe killing is wrong. Is killing every considered right? (I.e., fighting for
your country? If killing for your country is morally okay, we’ll have to make laws against what
kind of wars we want.)
Self Defense? Degree of self defense.
R. v. Dudley and Stevens
a. Ship sinks off the coast of Port Hope.
b. Four of them end up in a life boat together.
c. Had food for the first 18 days, and then had nothing.
d. Cabin boy became desperate, and started drinking sea water. Ends up getting sick.
e. Dudley and Stephens have a conversation about killing one of the four men, so the rest of
us can survive. If nobody comes in the next couple days, then they’ll go ahead and
f. Cabin boy keeps getting sicker, and sicker. They decide they are going to kill the cabin
boy, if a boat doesn’t come in 24 hours.
g. No boat comes, Dudley and Stephens kill the cabin boy because Brooks was too afraid to
h. Dudley, Stephens, and Brooks lived off of the cabin boy for four days before they got
i. Taken back to England, and charged with murder. Brooks was not charged with murder,
only Dudley and Stephens.
a. Does Brooks get charged with anything, seeing as how he didn’t actually murder the
b. How do you defend Dudley and Stephens? No question about if they did it.
c. The cabin boy was going to die because he was sick after he drank the sea water.
d. Dudley and Stephens said it was a ‘lesser of two evils’. Killing him so they could survive,
or they all die in the boat and leave their families back in England with no money coming
in. Would end up in the poor house.
The Court’s Decision
a. The court says it was murder, and they’re sentenced to death. R. v Latimer and The Defense of ‘Necessity’
The Defense of Necessity
a. As an ‘excuse’ (Perka v. The Queen) (Perka was a ship that was suffering mechanical
issues, and a big storm came. Captain thought they were going to sink, so the crew put all
of the cargo on the beach. RCMP shows up, and charges them because the cargo was
filled with marijuana. Charged with possession, importation, and trafficking. Didn’t
intend on stopping in Canada. They were going to die if they didn’t stop in Canada.)
b. Involuntary acts and the absence of choice
c. Requirement and imminent peril and “demonstrably impossible compliance”: was there a
legal way out?
d. Necessity is not an excuse.
Legal Option Choice Voluntariness Criminal Act
Law, Morality, and Freedom
a. Devlin: “Law and Morality”
b. Valid motivations for limiting freedoms
c. For Mill, only “to prevent harm to others” (The law should give as much freedom as it
can so we can all have a good life without harming/bothering other people. The law
should only contain when you can’t protect people from harm.)
d. Harm = Physical or more extreme psychological harm
e. The importance of the possibility of fallibility
Devlin and ‘Legal Moralism’
a. Legal moralism: law can be legitimately used to reinforce society’s ‘collective moral
b. But whose moral judgments should rule the day?
c. The law may be bound up with moral questions, but is the answer to impose one morality
R. v. Butler and The Regulation of Obscenity
a. Community tolerance
b. The national community
c. Evolving standards
The BIG Picture:
a. Law is based upon our normative positions, which are inevitably bound up with morality.
b. But whose morality should shape the law?
c. Mill: Maximum freedom constrained by harm principle. December 8, 2015 – Review
Law in Social Life:
b. Llewwllyn and Hoebel
a. Links between between law and society (Weber, Marx, Hoebel)
b. Law in formal and informal societies (Hoebel, Christie)
c. Characteristics of social control
d. Functions of law (Hoebel)
d. Environmenal influences on Canadian law (Russell)
e. Civil v. common law traditions (L’Heureaux-Dube, Bouchard and Taylor; lecture)
a. Canadian Pacific Railway v. Robinson; Derosiers
a. Key concepts; background to Constitution (lecture); impact of Constitution and Charter
after 1982 (lecture; berger)
b. Key Principles; parliamentary supremacy, rule of law, democracy, constitutionalism;
judicial independence; responsible government (Roncarelli v. Duplessis); Division of
Powers (Reference re Firearms case)
c. Cases: Roncarelli v. Dupelessis; Reference re Firearms
The Charter of Rights
a. Key Concepts; Charter rights (lecture); origins of Canadian approach to rights
(L’Heureaux-Dube; Turpel); Fairness and rights, procedural fairness and natural law
(Baker v. Canada)
b. Cases; Baker v. Canada (Minister of Citizenship and Immigration)
Sources of Law
a. Key Concepts; History of Common and Civil Law Systems (lecture); sources of law
(principle and subsidiary); legislation; precedent and stare decisis (Morton; Llewellyn)
Organization and Structure of Canadian Law
a. Key Concepts; sources of law (principle and subsidiary); precedent and stare decisis
(Morton; Llewellyn; federal and provincial responsibilities for courts; relevant
constitutional provisions (lecture); jurisdiction; structure of the courts; types of criminal
offences; essential characteristics of Canadian courts (lecture)
Regulating Economic Relationships
a. Key Concepts; relationships between law and capitalism legalism, calculability, role of
law in the marketplace (Trubek on Weber); Weber’s models of social action, external v
internal social control.
b. Cases: Rudder v. Microsoft Regulating Person Relationships and What is Crime?
a. Key Concepts; Duty of Care, neighbor, foreseeability, reasonable care (Donohue v
Stevenson; Childs v Desormeaux); Anns test and proximity (Childs v Desormeaux);
Crimes rates; role of law of society. Hegemony, ideological domination, coercive
b. Cases: Donohue v Stevenson; Childs v Desormeaux; Pettkus v Becker
The Criminal Law Process
a. Key Concepts: Social control, legalization, legal regulation and punishment; elements of
a criminal offence, mens rea (R. v Tolson; R v. Ladue), actus Reus, reasonable person
test (lecture); trial process (Giffiths); corrections (lecture), understanding over
representation (lecture; Marshall Inquiry; Commission on Systematic Racism; Dickson
b. Cases: R. v Tolson; R. v Ladue; Fagan v Commissioner of Metropolitican Police; R.v.
Law and Morality
a. Key Concepts; normative positions and law; legalism (R. v Dudley and Stephens; R. v
Latimer); necessity (Perka v The Queen; R. v Dudley and Stephens; R. v Latimer) Legal
Moralism (Mill on Devlin); Mill and tolerance, question of harm (R v. Butler, in lecture)
b. Cases: R. v Dudley and Stephens; R. v Latimer)
10 sections of 8-10 questions each, plus a bonus section of 10 questions
Each question has 5 answer choices
Read questions and answers CAREFULLY
Choose most correct answer
2 hours to write
What will the questions look like?
Small scale societies do not require much law because their law and values are;
a. An important part of daily life
b. Very simplistic but codified in law
c. Homogenous, that is, share and commonly known by all
d. Not something people worry about
e. Evident only when the rules are broken
The Rule of Law is bound up with the principle of:
e. A & C The Canadian approach to rights in consistent with which of the following:
a. Civil law understanding of rights
b. International human right approach
c. American human rights approach
d. British approach to rights
e. Common law understandings of rights
Week One – January 5, 2017 – Law, Liberalism and Critics
What are the goals of the legal system?
1. Dispute Resolution (Or is it? Is this what the courts do?)
2. Denunciation – condemnation of unacceptable behaviors and thus the setting of
boundaries on acceptable behavior.
3. Deterrence – specific and general
Does the system achieve these goals?
1. Police – the sticky issue is discretion
2. Judges – objectivity and neutrality
3. Juries – community standards, community biases
What does it all mean in the end?
1. Justice for all?
Starting Point of Liberalism
1. Theory of personhood that assumes a ‘rational, free-choosing autonomous self that is
independent from the community and other selves’
2. Embraces a political philosophy that is designed to maximize the realm of action
available to such a self, that is: each person should have an equal right to follow or
pursue their own interests without formal restraints because of their identity, be it on the
basis of their race, gender, class, or ability.
1. The position in turn implies that people should be free to pursue their own version of the
‘good life’ insofar as their choices do not ‘bump up against’ or infringe upon, other
2. That is, I cannot use my liberty to limit or interfere with your exercise of your liberty. Liberalism argues that society should be governed by liberty, equality and neutrality, and that the
State and the law should strive to provide each citizen with maximum freedom in which to
determine their own conception of ‘the good’ and to pursue their own self-interest.
The role of law in a liberal society to create space for each of us to pursue a ‘good life’ by
overseeing and regulating our actions and interactions.
Thus ‘Liberal Legalism’ sees law a performing a series of key functions:
1. The law should facilitate or provide mechanisms for social interaction
2. As a manifestation of the communal will, law should mediate and regulate those
3. Determine when one person’s pursuit of their idea of the good as a negative effect on
another person’s pursuit of their idea of the good, and prohibit those interactions.
Liberalism understands law as:
1. A human, and thus imperfect, construct
2. A complex product of a host of interacting social forces
3. Both reactive to and constitutive of the broader society within which law operates
4. Not simply reflective of elite interests, but a site of struggle over the meaning and quality
of social existence
Liberal Legalism reflects the core ideas of liberalism within its essential features, including:
1. A commitment to general, democratically promulgated rules
2. The idea of equal treatment of all citizens before the law
3. The separation of morality, politics and personal interests from judicial action
How these essential attributes are articulated within the law and legal system:
1. Adherence to precedent
2. Separation of judicial and legislative functions of government
3. Adherence to procedural formalities
Do these attributes achieve justice?
Christie v. York Corp. (1940)
1. Illustrates tension between law as a ‘rational’ process and larger issues of social justice
2. Christie attempted to purchase a beer at a tavern in Montreal and was refused service
3. Christie sued
1. Whether s.33 of the Quebec License Act applies to the case
2. Held: s.33 does not apply and “it must follow that, when refusing to serve the appellant,
the respondent was strictly within its rights” (p. 108)
3. Appeal dismissed
4. Dissent: Insofar as the state involves itself in the sale of liquor through the vehicle of the
License Act, the licensed merchant loses the right to pick and choose his clientele as he
has a state-provided “special privilege to sell to the public”. 5. In effect, the S.C.C’s decision avoided the issue of racism by focusing on the ‘letter of
6. License Act merely attempts to regulate “freedom of commerce”
7. Thus the act permits vendors to act on their freedom of commerce in a manner which
they view as a best meeting the needs of their businesses
8. But what happens when freedom of commerce equals freedom to discriminate?
9. Disconnect between legal and factual equality
Delgamuukw v. BC (1997) – Aboriginal Title Case
1. Essential question on appeal concerned weight to be given to different types of evidence,
specifically here, oral versus written documents
2. Oral history as ‘hearsay’
3. Supreme Court: Parity of oral and written historical documents and a new trial
4. Law is a site of struggle and this although Delgamuukw won, they also lost
5. Supreme Court ordered a new trial which both delayed and added significant cost to the
Gitksan and Wet ‘suwet’ en Nations quest to secure justice
Nixon v. Rape Relief – Perpetuating the Cycle of Abuse
1. Nixon, a transgendered person, sought to volunteer with Rape Relief; when she identified
as transgendered, she was denied the right to volunteer
2. Nixon file Human Rights complaint; case went to BC Supreme Court
3. Court found against Nixon, although there was discrimination, Rape Relief was protected
by BC Human Rights Code which permits discrimination for purpose of promotion of a
particular group (in this case women)
1. Limited legal imagination on matters of gender
2. Perpetuation of ‘divide and conquer’ politics in rights litigation
3. Court created different ‘classes’ of women with different degrees of rights
4. In refusing to recognize a more complex understanding of gender, the law limited
different women’s pursuit of a ‘good life’
5. To obtain ‘benefit’ of legal protection, Rape Relief has to accept not only to violate their
own political positions, but also adhere to archaic, externally-imposed gender definitions
Racially Based Jury Nullification: Black Power in the Criminal Justice System
1. Whether and when it is appropriate for Black jurors to use their power to acquit Black
defendants, not because they are guilty, but rather as a means by which to ensure yet
another Black person is not put into prison?
2. Race may be a legally and normally appropriate factor for jurors to consider in reaching a
verdict of not guilty or against conviction
3. Liberal critique of justice: the system is racist
4. Radical critique of justice: society is racist and law is a means for protecting white
5. Nullification as check on state power 6. Legal and moral arguments favoring nullification:
- Rule of law is more mythical than real
- Moral obligation to disobey unjust laws
- Democratic domination
7. Nullification, civil disobedience and state oppression
The Big Picture:
1. Liberalism – law should provide maximum freedom to each person
2. Liberal legalism – role of law is to oversee social interactions, regulate and resolve
conflicts of liberty
3. But law is also rational and divorced from the larger context of those social interactions
4. As such, law can be ineffective in resolving social, political or economic conflicts, which
fall outside the realm of he purely legal
5. Thus we must always be conscious of the ways law contributes to the reconstitution and
reproduction of existing power relations in society
Week Two – January 12, 2017 – Connecting Law and Society
The Limitations of Traditional Legal Education
1. “Doctrinal Approach” to study of law
2. No real connection between law and society
3. ‘law in books’ versus ‘law in action’
Traditional Legal Education as Exercise in Elitism
1. ‘Positivism’ and legal education
2. ‘Legal Positivism’: law as a “normatively closed form of knowledge and system of
enquiry which have few, if any, necessary reference points to the social, political or
economic environment in which law operates”
Is it adequate to see the law as thing apart from society?
- Law is a social construct and this must be studied, learned and understood as both a
thing informed by, and informing, society
Rise of Alternative Approach – Yale Law School and “Legal Realism”
1. Focuses on the ways law is actually applied to, and impacts, peoples’ lives, and vice-
2. Must understand the interrelationship between law and society.
3. But legal realism took this interrelationship a bit too far, leading in two streams of post-
doctrinal legal scholarship, including; critical legal studies, empirical behavioral studies.
Critical Legal Studies
1. “normative interpretive legal studies”
2. Study of law and legal relationships within larger social, political, historical contexts
3. Example: Khan’s analysis of Nixon v. Rape Relief B.C Empirical Behavioral Studies
1. Analyze and frame legal issues from a position of value neutrality – explicate the