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Lecture

LS101 Lecture Notes - Criminal Code (Canada), Small Claims Court, Test Case


Department
Legal Studies
Course Code
LS101
Professor
Frances Chapman

Page:
of 2
LS #3 [Type text] TUESDAY SEPTEMBER 18, 2012
1) Natural Law Criticisms
- what is morality? Everyone’s definition is different
2) Legal Positivism
- law should be based on laws
- judges only apply laws created by lawmakers and not make own moral decisions
- “black letter law”: legal principles that are old/settled should be applied strictly
Criticism:
Not flexible system, non-progressive, no complexity in law
Law is man-made (isn’t perfect)
Law is black & white
“habit of obedience”: we learn right/wrong during our childhood
Why is there no morality in positivism?
3) Judicial (Legal) Realism
- judge is the most important person (final decision makers)
- something more than law (interpretation, sympathy, judge’s thoughts during trial/ judge’s life
experience)
- “right side of the bed theory”: what happened in judges life that may impact judge’s attitude
Criticism:
Random, cannot predict judges
Need aspect of morality
Judge’s too much power
Example- No Vehicles in the Park
HLA Hart
“a legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile,
but what about bicycles, roller skates, toy automobile? What about airplanes? Are these, as we
say, to be called ‘vehicles’ for the purpose of the rule or not?”
NATURAL LAW PERSEPCTIVE:
- if vehicles bring no harm, it’s okay
LEGAL POSITIVISM PERSPECTIVE:
- find definition of ‘vehicle’ and ban all vehicles that apply
JUDICIAL REALISM:
- depends on their beliefs concerning this situation
Test case: a lawsuit brought to establish a widespread/important principle of law or right. Sometimes
cases all agree to be bound by the decision in the test case.
- important to look at the law as a “living tree” that evolves and expands as time passes
- not always concerned with “justice”
- judges help those they sympathize without looking at consequences of decision “hard cases make bad
law”
- small claims court have less rules
Quebec Law
- Quebec’s system of law is based on Roman Law
LS #3 [Type text] TUESDAY SEPTEMBER 18, 2012
- rest of Canada governed by common law, Quebec operates through a civil code, also called “civil law”
- system of commercial obligations, property law, family law are different in Quebec
- Criminal Code Of Canada operated In Quebec
- primary source of law is the legislation
Conclusion
- law is full of uncertainty, law full of rapid change, court decides what law is
- use precedents to determine possible outcome of case
Public Perception of Lawyers
Bad reputation: lawyers rarely supply pleasant information, expensive fees, paying for justice,
no communication between lawyer and client
Poll 2004: only 44% Canadians trust lawyers
Media to blame for bad reputation of lawyers?
Regulation of Lawyers
- self regulated
- can be sued: breach of duties, criminal activity (fraud)
-informal: mentors
- barrister (in courtroom) and/or solicitor (paperwork, corporate office work)
- The Law Society: Ontario- the law society of upper Canada