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Law and Society
LWSO 203
Rick Nilson

September 12 Various Legal Theories Natural Law: o Regards law of God and inherent, universal rights of man o Aquinas, Locke, Jefferson Positivism: o Regards law of the sovereign; no natural rights o Hobbes, Bentham, Austin Liberalism: o Man possesses rights for so long as he does not harm another o Mill, Holmes Historical Jurisprudence: o Law is developed by people in a specific region and adapts as the people adapt; is the root of common law o Sumner, Savigny Legal Realism: o Challenges the assumption of an impartial law The Rule of Law  The role of the legal system is to ensure that law prevails over the sovereign; even the sovereign in subject to the law I. Roncarelli v Duplesis: - Roncarellie (Jehovah’s witness) owned a restaurant and needed to renew his liquor license through the province of Quebec - Duplesis (premier) refused to renew license because he didn’t like Jehovah’s witnesses  Duplesis was told by SCC not to discriminate II. Black v Chretien: o Black (wealthy newspaper man) finangled himself a lordship in England (even though he was Canadian) o Chretien (Canadian PM) told Queen not to appoint Black as lord because Chretien didn’t like him  SCC ruled for Chretien because it is the PM’s job to advise the Queen (Black had to give up Canadian citizenship to obtain lordship) III. USA v Conrad Black o Black insisted on running his publishing company without regard for his shareholders and spent corporate money frivolously. He then defied court orders and tried to remove evidence against himself from the office (was caught on video cameras)  USA courts found him guilty, despite his being a wealthy CEO and lord The Rule of Law (Fuller) 1. The law must be general (not specific) 2. Law must be public (no secret laws) 3. Law must be clear (not vague) 4. Law must be consistent (no contradictory laws) 5. Law must be capable of being followed (no impossible laws) 6. Law must be prospective (must look forwards, not back) 7. Law must be stable (not always changing) 8. Law must be enforced September 17 Canadian Legal System Evolution  Aboriginal peoples existing, not written systems  French exploration early 1500s, Quebec/Ontario region. Brought: feudal law, Roman Catholicism, seigniorial land system  English exploration fur trade, crown gave companies land  French/English war (big fight on Plains of Abraham—English win) English law imposed on New France Royal Proclamation (1763): o Reserved aboriginal hunting grounds—official recognition of aboriginal rights o New France became Quebec—English law imposed Quebec Act (1774): (English saw the discontent in Quebec and wanted to appease the people as to avoid a civil rebellion) o Restored Quebec civil law—“Civil Code” o Official recognition of French language and Roman Catholicism o Kept criminal law same as English criminal law Date of Reception: different British colonies became self-governing at different times, when they did, the English law as it was remained, but any changes made in England from that point on were of no effect in the self-governing colony. British North America Act (Constitution Act 1867) o Created the new dominion of Canada (only four provinces) o Established federalism provinces and federal government are each supreme in their own jurisdictions of responsibility, as outlined in sections 91 and 92 Alberta Act (1905) o Established Alberta as a province Statute of Westminster (1931):  UK cannot pass laws regarding Canada anymore  Established Canada as separate from Britain in foreign affairs Canada Act 1982:  Comprised of the Constitution Act 1867 (Formerly the BNA Act)  Constitution Act 1982 (Quebec didn’t sign this part)  Includes a constitution amending formula  Canadian Charter of Rights and Freedoms (entrenched constitutional law) Evolution of British Legal System Common law: from time immemorial—judges simpley found the law as it had always been Roman Conquest: Roman law, Roman Catholic religion. Improved infrastructure and physical buildings, but didn’t alter law significantly Anglo-saxon Period:  “composition”—eye for an eye  Idea of “breaching the king’s peace”—criminal law as being an act done as an individual against the state (not between two individuals)  Tort law had no contracts (no stock put into written agreements—all trades had to be done directly)  the economy developed as tort law developed Norman Conquest (1066) o Property law—feudalism; Domesday Book (record of all assets of all the people for taxation purposes) this was done by William the Conqueror. He named lords in charge of areas, then dukes and so on (delegation) o Court system—adversarial—trial by battle Influence of the Church (gained land by people giving them land and money to escape purgatory) o Cannon Law: ecclesiastical courts (courts presided over by members of the clergy) o Henry VII: Created Church of England and appointed the monarch as the heard of church Development of Common Law I. Substance—precedent of cases stare decisis (if one case is decided by a high judge, all equal and lower courts within the same territory must rule similarly if a similar case is presented) II. Form—writ system civil procedure III. Equity—Chancery courts—equitable remedies can overrule common law judges and demand people do/do not do something IV. Magna Carta (1215)—limitations to the king’s power—Rule of law places restrictions on the monarch/ idea of responsibly government and accountability introduced—everyone is subject to the law Growth of Parliament  Two houses established (1330)—Lords (senate), Commons  Civil war—Charles I beheaded, Cromwell established a republic but got power hungry and also got beheaded, monarchy reestablished (mid 1600s) Parliamentary Supremacy: Act of Settlement (1701) parliament is supreme, but judges are independent. Checks and balances introduced—parliament makes law, judges interpret laws Canadian Legal System Today Constitutional Monarchy  Queen is sovereign “by and with the advice and consent of parliament” Constitution Act 1867  Federalism establishes provinces and federal government (jurisdiction decided by sections 91, 92)  Governor General (federal), Lieutenant Governor (provincial) representatives of the Queen. Needed to sign bills before laws can be passed. Can dissolve parliament. The Governor General is the defacto head of state (Letters Patent)  Parliament—senate, commons, cabinet—is supreme (subject only to constitution)  Federal parliament: House of Commons plus Senate  Provincial parliament: Legislative Assembly (no senate)  Responsible government: Prime Minister and Cabinet (federal), Premier and Cabinet (provincial) must maintain the confidence of parliament to stay in power  Separation of powers: judicial, legislative, executive (courts, parliament, cabinet) Judicial Branch—Court system Supreme Court of Canada Alberta Court of Appeal Federal Court of Appeal Alberta Court of Queen’s Bench Provincial Court of Alberta Federal Court Tax Court Alberta Administrative Tribunal Federal Administration Tribunal Selection of Judges—appointed by the GG on advice of the PM Federal Courts o Outlined by the Constitution Act 1867, section 101 o Supreme Court of Canada (Supreme court act) o Superior Provincial Courts (section 96, GG appoints) Provincial Courts o Inferior courts and administrative tribunals are appointed by the LG Judicial Independence o Section 99 judges can only be removed in the GG appeal to the House of Commons and senate and if all agree, otherwise, judges sit until age 75 o Financial security (no pay cuts allowed) Role of Judges I. Private Dispute Resolution: obtain satisfactory results between parties; uphold justice (rule of law); consistent in execution of law II. Adjudication of Criminal Law: protect the state, its institutions/people and their property; protect the individual from abuse by the system; uphold justice (rule of law) III. Overseeing Administrative Government Decisions: protect individuals from abuse by the government; interpretation of statutes IV. “Law Making”: interpret and apply constitution; apply and develop common law; subject to parliamentary supremacy; subject to stare decisis Common Law o Court decisions—subject to appe
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