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Lecture

LWSO 201 Lecture Notes - A. V. Dicey, Moral Universalism, E. Adamson Hoebel


Department
Law and Society
Course Code
LWSO 201
Professor
Marywyatt Sindlinger

Page:
of 9
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