What is law?
o Rules that govern society
o Tells us what’s acceptable and what’s not
o Regulates conduct
o Backed and enforced by the state or authority
o Penalties for disobedience
What is a legal rule- how do we distinguish legal rules from non-legal ones?
o Legal rules are backed and enforced by the state of a figure of
authority rather than just a societal norm.
o Those serious enough to disrupt society are made into law
How do we recognize some rules as being legal?
o “rules of recognition”
o parliament and legistlative assembly of province.
o Judges are able to make laws as well.
o Rules that govern law making
Why do we obey legal rules?
o Habit of obedience
Comparing and contrasting the Hobbesian view of human nature to the
o Hobbes thought that humans were born into a state of nature,
thought that they were naturally selfish, brutal and naturally thieving,
in a society of anarchy.
o “life was nasty, brutish and short” everybody out for themselves no
rules to govern society.
o People decided that they were ready to give up a little of their
freedom to not just do anything they wanted to do. Give up freedom to
the sovereign and the sovereign makes law, enforces it, protects
people from others.
o In Hobbes’ view, people only obeyed because they fear punishment
and fear disorder. In his view people did not have a say in the way of
the sovereign and that the sovereign could rule over the society with
an iron fist.
o Locke’s view was that humans could always get along but they
believed that their society could be bettered in a sense if there was a
sovereign regulating human affairs.
o Locke believed that we obey only because it is “our law”. He believed
that the sovereign could not enforce anything unless previously been
authorized by the people and anything that the people did not like
anything that the sovereign did then the sovereign wouldn’t be
allowed to enforce that.
Are there limits to what the law can do?
o Rule of law, no one is outside of the laws CRIM 1107
Should law reflect morality? If so, whose morality?
o Roman law suggests that law should reflect morality
o This is expressed in the theory of natural law
o Human beings are reasonable creatures and a natural legalist would
say that if we just think about it then we would come to a consensus
on what is right. Through reason we can agree on moral principles, ie
killing is wrong.
o Divine law and natural law is superior to human law and human law
should reflect these principles and if they don’t reflect these then they
are not valid law and they need not be obeyed.
Legal theories: a discussion of natural law, legal positivism, and judicial
o valid law does no depend on whether it is moral or immoral
o it depends on whether it was passed by a valid law giver in a
procedurally correct manner.
January 24, 12
The law of equity
what 3 preconditions that had to be satisfied before a suitor could invoke
There is still a law of equity present
1649 charles 1 is beheaded, parliament is in rule
parliamentary supremacy, the crown is a figure head in terms of making law
what is the second important source of law in common law countries
what is one advantage of statute law over common law?
o Will of the people instead of one person (judge)
o Statutes can respond far more quickly, than letting the it go through
the court system and taking a long time, more efficient
What happens when statute law, case law, and equity conflict?
o Equity law is the one followed, prevails over common law
o Statutory law prevails over equitable and common law.
The civil law system
Legal theory- integrated world view
Has 2 key features
o A system based on coherent theory
o Law that is codified
The quebec civil code
Quebec was governed by French officials CRIM 1107
Paris coutume along with medieval law and old roman law
Laws which reflected local quebec condition
mid 19 century that there was a civil law reform in Europe under napolean
that civil law in quebec was stabilized.
Case by case decision making process, they take a specific case and fashion a
general rule, this is inductive reasoning
Code book, general principles to apply to case before them (specific), this is
Is there a role for precedent in a civil law system?
o Yes there is
What are the sources of law in a civil law system?
o Code book
There is no separate law of equity as there is no common law and they did
not need to fix anything in civil law
Quebec keeps the commercial law public as everywhere else is that way
English common law but it keeps civil law private.
January 26, 2012
Typology based on law
Positive law: a shall pay b if a doesn’t pay b then a will be punished.
Religious laws are non positive law, where they say we have to do to do
something but there are no real punishments to not doing it, also morals and
Nonpositive laws don’t create much of an impact, focus on positive law.
Public international law deals with relationships between states. NAFTA. It is
a misnomer because there is no real punishment for breaking this “law”.
Put sanctions on countries that are non compliant.
Private international law deals with relationships between people in
different countries. It is important because of the globalization of the world.
In which jurisdiction shall the issues be determined?
o Domestic law is the law of the land
What is/ are the differences between private and public law?
o Private is relationships between citizens (family law)
o Public is relationships between citizens and the state. (taxes)
o Private law is focused on regulating and facilitating
o Public is more in command mode and sanctions for disobedience.
Procedural and substantive law: what is/are the differences between them?
o Substantive law is the laws themselves, substance of the law CRIM 1107
Who can do what, what is legal and what is not
o Procedural law, how these laws are to be carried out, the process of
Four year olds can’t provide evidence, police pull people over
for no reason
February 7, 12
Tort: suing when someone is done by wrong.
o Assault is both tort and crime
o The usual remedy is monetary also known as damages
Which developed first criminal or tort law? Tort came first as it was private
law and everyone was supposed to fix it privately but criminal law came out
of it as people then fought publically
Contract law came out of tort law as well, promises broken and such
o Remedy was also monetary
Property: 3 types of property:
o 1. Real property: houses and land
o 2. Personal property: things and chattels- jewelry
o 3. Personal property: idea, patents, rights
family law is also a substantive area of private law came out of church law
o connected to contract law
estates, wills and trusts are part of property law
real estate law based on property and contract
corporate and commercial law also known as business law
patents/ intellectual property
agency relies on contract law
logical deduction if a implies b, given a therefore b.
ratio-principle of law which decided the case. Root of the decision it then
material means very important, cant do without.
An abstraction from the facts arriving at a general principle
Where a person can foresee that failure to exercise care may cause harm a
duty of care arises
When a person fails to exercise such case, theres a breach of duty if harm
results the person is liable
February 9, 12
Wide ratio- where a person can foresee that a failure to exercise case can
lead to harm, a legal duty of care arises
Where a person who owes a duty of care fails to exercise such care there CRIM 1107
s a breach of a duty
If a person in injured due to this breach the person who owed such a duty is
Why might the ratio of one case be irrelevant for another? The year in which
the case was decided is important
o Precedent can lose reputation
o Public policy refers to the object or the purpose of law does the
precedent relate to the object of public policy
Negligence--- physical damage, economic loss
Causation----harm swan v. the riedle brewery ltd.
Obiter dicta words said aside is the ratio then they can ignore what others
think to be the ratio
February 14, 12
Two main sources of law: common law (case law) and statute law
Three types of bills:
o public bills: brought in to implement government policy
o Private bill: deals with some local or private matter
o Private member’s bills: individual member of parliament brings
Passing of a bill:
o 1. First reading the minister responsible for the bill introduces it, put
on the legislative agenda, printed and distributed
o 2. Second reading: bill debated in general terms; vote taken, if passed
goes on to third reading, if not passed it goes to committee stage.
o 3. Committee: standing committee (always there) or ad hoc
(established for particular bill) clarifying, amending.
o 4. Back to house for 3 reading
o 5. federal where it goes to the senate.
o 6. Royal assent from governor general (DAVID JOHNSTON)
o 7 .Proclaimed in force
o 5. If it is a provincial goes to the lieutenant governor (STEVEN L.
POINT) for royal assent
o 6. Then it is proclaimed
Constitution act, 1867 s.91 for federal and s.92 provincial
Ultra vires outside of one’s jurisdiction
Most statutes have definition sections
Interpretation acts which apply to all statues within their respective
The plain meaning rule, read the statute literally.
The golden rule, read the statute in context
Vague words, preceeds specific words.
CHAPTER 3- REVIEW QUESTIONS. CRIM 1107
1. Positive law is law that is in place in any nation that can be enforced.
Religious law is an example of non positive law.
2. The main characteristics of public law are the fact that they are involving an
individual and the state and consists of criminal law, constitutional law,
administrative law and taxation law. The main characteristics of private law
are that they involve two individuals in a dispute. Private law consists of
property law, tort law and contract law.
3. Procedural law has a focus on adversarial aspects of the law, it has focus on
the rules governing the law.
4. Substantive law focuses on the content of the rules of the law and procedural
law focuses on the norms and values concerning how theses rules are carried
5. Constitutional law is dis