Law Notes September 16th
Types, Functions & Dysfunctions of Law, PowerPoint notes
The law has a difficult job into taking into account everyone's different interests and
beliefs that change day to day. Must be specific in informing people of what rights they
have, but can't be too specific because the law loses its ability to be shaped to the
situations that present themselves.
Interests will grow in number as the society gets larger. Some interests will always be
minority interests. How to protect a minority interest when simple concepts like majority
rules would see those interests as suppressed. Take into account and in cooperate ways
of allowing and upholding those minority interests. Needs more complex ways of
creating the law than just a majority rule vote.
Greater competition for the goods you may want as an individual and you may need to
learn and follow how to get them. Typically something that is done through earning and
spending money. Which tends to lead to inequity. Competition for the provision of those
goods, laws required to protect consumer and businesses trying to compete. Technology
progresses, interest needed to be balanced, therefore creating laws becomes even more
Need formal structure that takes into account numeral people with different goals,
financial abilities, interests etc.
Prospect for conflict thus increases. (views, values, rights, beliefs etc)
Make a decision between two rights which can both be very convincing
Ex: the right to presumption of innocence, overall rights to a fair trial vs. Public Safety
Draft/Amend/Process to amend/courts etc. is information and forces working in
background of creating such laws
The aim when these laws are being created/amended take into account in any society,
the laws or the framework that are supposed to regulate conduct of individual, reflect the
societal values, aims and economic/political climate of the time
Laws operate in imperfect ways
To what extend to we want the law to protect an individual, looking for a balance that is
not easy to achieve
The law has to change with times, with people and society changing their minds or as a
whole. Situation where interests may often collide and cannot achieve a specific answer Common law; statutes enacted by Parliament, rules brought in by courts
Strengths and weakness in every approach of law
Certainty in law is needed because if its structured properly than it will have some
predictability. But cannot be too specific
Predictability is important in law because everyone needs to know the rules that they are
supposed to be living by. SO we don't have to go to court and have the rules read out to
us and unaware of them.
Finality is important in law so decisions can be final, if you are named innocent, finality
should follow so you should move on. The last stop in the court is the Supreme Court of
Balance in law
Do you consider the law as what the courts will do? Or something else.
It's very difficult to define what the law is, can be defined with value and flaws just like
the legal firm work itself.
Custom: shaking hands, can never do it again but it is not the law. Connected but not the
Convention: different steps when signing off on bills/ parliament- obi by, but not set in
case law that if this is not done it's illegal. Follow them and would be problematic to not
Features of the law: satisfactory ways of describing what the law is and defining its basic
characteristics, all up to debate
Ex: recycling- no cohesion requiring us all to take care of environment, still do it, can get
fined, but doesn't fit into Weber's definition on law
Understanding what's expected and the consequences that will follow if one does not
follow the rules
Everyone has biases, influenced by emotions, different values, different conclusions can
be reached by judges because of the different perspectives on that case. Human minds
allow the law to operate. Can be in some cases a strength or a vulnerability
Without understanding the psychology of decision making , we won't understand how
human act can act as frailty to law or benefit
Takes a long time to change or modify a law because of finality and predictability. If we
don't look at outside forces, then we won't understand how law moves and what the
underline forces are Law has been in action, not in courts, but in greater discussion
Sociological trends help us understand the law because observing society can make
sure whether the law is working or not. When updating laws, we are sure we are making
progress and not going back
Enforce charter rights against the government
Substantive law; the content as the actual law, what is says you have as a right and
obligation. What the law actually requires of us, what rules are we required to follow
Procedural law; fairly formal, lists of rules followed, objectivity and fairness of how law is
Public law; include the rules and rights set out in Charter, administrative decisions that
gov. has to take, what they have to consider and what they cannot consider. (crim law)
Private law; enter into contract (dispute), family law (divorce)
Civil law; Become liable for the wrongs, not culpable.
Criminal Law; State
There are primary sources of law and secondary (discuss and explain primary sources)
Incentives for Lawmaking Activity
o has to be broad enough to cover what it needs to cover, take into account
(changes in tech, moral view, diversity, minority) Any voice that highlights any
issues that needs to be considered in law making process can be seen as
incentive in the law decision process.
o Ex: Academic scholarship; guidance for what has to be considered in law making
process, academics will write articles that high light issues that have to be taken
Interest group ability to change the law is related to if its an defensive or offensive
position. The law is difficult to change and this can be good. (combination of time, energy
and enough of resources) can also use this to keep status quo. Sometimes it is easier to
keep status quo then to change the law.
Public opinion is not always a fair process
o law makers could be affected could be indirect or direct. Media: when it comes to law making, the media info is the forefront of every citizen and
every lawmaker. Might present facts that are consumed by readers and affects the way we
see situations that need to be addressed in the law. RATWhere stories are placed in the
paper, feels more important if on front page, or if it reoccurs in paper day by day. Strong
influence in lawmaking process
• Rationalistic Model: sets up boundaries the way society needs them to, simple way to enforce
• Functionalist Model: law adapts and doesn’t set out requirements, just models what the norms
portray as acceptable behaviour.
• Conflict: mechanism for conflict resolution, law will be amended as more conflicts come
• Moral Entrepreneur: law will progress as morals view of society progress, sometimes law will
be ahead to formalize those changing views
• Parliament has supreme authority, courts are obliged to look at those statues and apply
• CANADIAN LAW IS BUILT ON PRECEDENT *** (Judges have to look to what was decided in
other case, if law has already been created, judge is supposed to follow it).
• ratio** (principle that underlines decision) , obiter **
• Application of precedent is very complex, if theres similar facts in course from fact, supreme
court might change common law
• The criminal law is meant to define the interaction between individual, put boundaries on how
one can behave, things one can and can’t do while relating and co existing with people in
society. Prohibits certain actions.
• Overtime as our morals change the criminal law is used to redefine those boundaries.
Must be viewed as continuously evolving. State agent, judges, prosecutors, prison
officials, media, everyday citizens etc enforce the criminal law. (Party to these
proceedings-answering questions, reporting-less formal presence but part of that
structure.) Criminal law addresses issues and give effect to the rules through various
• The State wants to be such a crucial part of criminal law because to protect itself society
and legitimize its authority.
• If there was no criminal law, people would take matters into their own hands which could
go various ways. Reflect societal process
• The overall structure of crim law can be used to take an activity outside of the relm in our
minds of crim behaviour and place into something that needs to be put into treatment
• Criminal Proceedings:
• Victorian era; The criminal proceedings were seen as being between victim and
defendant, the victim was responsible for bringing to the court system and bringing to light
the behaviour that could be classified as criminal, reinforcing that behaviour was wrong by
bringing to court. Crimes existed, but it was for the victim to take control of situation, to not
only report crime but enforce criminal law and sanctions.
• Now; we see criminal proceeding being between State and defendant. Victim might
support state in pursuing charge but it’s all under control of State. Victim can go to civil
court but thus not being inside criminal arena. In terms of using crim law to enforce
behaviour, victim is left at mercy of State.
• In end of 17th Century, there was a limited right to defence council, only in the case of
treason charges-specific crimes against king were the biggest crimes that could be
committed in society. The state would take it upon themselves to pursue that charge. In
that limited circumstance, the defendant had some right to a defence council. Outside of
those charges there was very little defensive councils.
• In 18th Century, things started to slowly change, the accused felon could consult lawyer
for advice but still had to come to court and present any defence by himself. Individuals
were meant to represent themselves against. The proceedings would take minutes or up
to half an hour, judges had a lot of authority to determine what sanctions had to be and
what crim law said, the decisions weren’t transferred from one court to another. A lot of
variability between cases. Large emphasis on defendant’s credibility. Part of the reason
why there was no defence council (state wasn't existing on other side so no perception of
imbalance) the response of defendant was so crucial so if there was defence council they
In middle 18th Century, saw changes in defence council, started to become increasingly
obvious there was an imbalance so slowly they decided something needed to change in
the criminal system. Needed balance of authority to contest charge on other side.
Small steps overtime brought us to what we have today where the prosecution is done
completely by state, defence is fully accomplished by a defence council-it is a well known
right. There are now various defendant rights,including a presumption of innocence.
Standards of proof, including guilt “beyond a reasonable doubt”
• Criminal Prohibitions on Aboriginal Dance Late 19th century, the colonial government wanted to prohibit Aboriginal Dance because
there was a wide and general policy of assimilation. The first criminal law prohibiting such
things was seen in criminal code in 1884-this law remained intact until 1951. It’s obvious
that we see Canadian gov. using the criminal law tool to shape social behaviours, shows
how powerful this tool is.
• Birth Control and Abortion in Late 19th Century Canada
Birth rate was declining which was worrisome to the government. Woman were viewed
responsible for this decline in birthrate (rise in abortion) and considered selfish for wanting
to work or not wanting kids. It was said that a woman’s reason to be alive was to give birth,
when not followed-considered selfish. Thus being way abortion (condoms and birth control
ad any kind of conceptions, advertisement about abortion) became a criminal act.
• Up until 1969 were considered a criminal offence. The law and abortion was reformed so
that in very limited circumstances a woman could receive abortion in