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LWSO201 - Theories of Law and Society_6.doc

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Law and Society
LWSO 201
Marywyatt Sindlinger

Theories of Law and Society 1) Legal Terminology and Concepts a) Common law and civil law • Common law: • Law evolves through judge’s decisions • Eventually they started writing laws down to keep consistent and the body of law was created • Precedent: a case solved before that tells you what actions to take now (like cases should be decided alike) • Practiced in all of Canada, except Quebec • Civil Law • Arose out of Justinian Law (Roman times) • Justinian said “let’s write them all down” and this code was picked up by Napoleon – Napoleonic code, and then the French went to Quebec and implemented it there • Code: exhausted list about all the laws related to a certain issue (ex. Tax code = all of the tax laws in Canada) b) Criminal law and civil law • Criminal Law: • Laws against the king/state (ex. Murder, theft, assault) • 2 aspects to the crime: impact to the victim and the wrong done to society • These crimes make for a less secure society and therefore the state prosecutes • Prosecutor against the defender (if found guilty = offender) • The people who commit offenses are found either guilty or not guilty; never innocent • Must prove the crime beyond reasonable doubt • Civil Law: • A dispute between individuals or state that aren’t criminal in nature • Individual against individual (Plaintiff complaining against the defendant) • Liable or not liable (no guilt involved) • Ex. OJ Simpson was found not guilty but still liable in the civil court • Ponderance of evidence: more likely than not to have committed the crime c) Procedural and substantive law • Procedural law: • Court processes about substantive laws (about fair legal process) – have people been given the opportunity to be heard? For how long? Is everything fair and everyone treated the same? • Substantive law: • Sets out rights/duties/obligations (the duties related to the legal process) • Ex. Procedural law would deal with whether the paper is signed by both parties, and substantive would deal with whether your duties are fulfilled upon entering the agreement – if not the other party can sue d) Public and private law • Public Law: • The roles and responsibilities of the government acting as government • Sets up powers of officials and relationships between individuals and the state • Just because government is involved, doesn’t mean it’s public law (ex. Governing airplanes and someone slipped and fell and sued for damages = this would be a private lawsuit because you aren’t suing government in their government positions and what they are doing wrong there) • Private law: • Non government bodies e) Court system • Hierarchy of courts • Masters of Chambers on the bottom and Supreme court of Canada on top (very few cases come here form all across the country) • The supreme court of Canada will only hear a case if: 1 – it covers an unsettled area of the law that needs resolution, 2 – is a matter of national importance or 3 – it’s anything else they want to hear • Reference cases: if parliament doesn’t want to hear it, they can refer a question to the supreme court • Courts of Appeal – in every province • Courts of First Instance a.k.a. Court of Queen’s Bench (Alberta) • Provincial Courts of Alberta (divided into several sections) – criminal law, provincial court civil division, family law division, juvenile courts division • A lawsuit would first go to Queen’s Bench and this is where the trial will be held • Parties present their evidence (oral, documentary, physical) to the judge – only one judge • After the evidence, lawyers make arguments about it (this is what happened in a case similar to this so take this action please) and the judge makes decision • Some cases allow a jury (the jury decides the outcome and the judge decides the sentence upon that outcome) role of the judge is to keep playing field fair • If not content with the sentence, you go to court of appeal (3 - 5 judges) • Appeals are very different than trials • No witnesses • No evidence presented • Simply read the transcript and evidence previously presented and look at the judge’s decision (did the judge make an error of law? Did he imply the wrong law?) • An appeal is not a re trial, it simply looks if there has been a mistake made between error of fact and the law • Law is not as determinate as we would like it to be • Court of Last Resort – Supreme Court Jurisdiction: • which court has the authority to hear your case (trial courts) • provincial court - 24$ theft • Queen's Bench - more serious matters • car accident happens in Alberta - it HAS to be heard in Alberta • how far that case extends and its authority • Alberta courts follow the decisions of Alberta courts • Alberta decisions binding in Alberta, Ontario might be persuasive but not binding • Supreme Court of Canada - binding across Canada 2) Classification of Legal Systems a) Traditional legal systems • Rely on tradition and custom • These systems are found in simplest of societies • Hunting/gathering types of societies • Very close kingship ties • Homogeneity of beliefs • Close family ties, share spiritual beliefs, life styles and systems, • Because of the homogeneity = less conflict • Very direct relationship between means of production and people using them (I collect the barrios, get the water = no long line between resource and consumption) • Laws generally unwritten and relate to spiritual guidelines and principles (ancient norms) • Religious beliefs and tradition and law can't be separated easily; all intertwined • if there is a dispute that arises (no specialized decision maker) - council of elders • Decision specific to that dispute • function of law: preserve the culturally important values and social structure and preserve the group itself • Concerns: preserve the structure of society and the group of a whole, maybe not the best interest of the individual; reinforce inequalities • Group’s long term is the goal b) Transitional legal systems • Advanced societies and very early industrialized societies • Entire society is changing (gatherers-> specialized labour forces) • More complex (education, economic - hire someone to get me water, political, differentiation between kingship group - more people) • More opinions and perspectives/skills • Less homogeneity = values and interests coming more into conflict • Increase competition for resources
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