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Lecture 10

PAP2320 Lecture 10

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Public Administration
Joshua Zaato

Lecture 10 (Feb 7 ): The constitution and Law Sources of Canadian Law  The history of the Canadian legal system can be traced to 2 main sources o Legal systems developed by the Aboriginal communities o Legal traditions imported by European settlers  Canada, like any other democratic society, is based on the concept of the Rule o fLaw, meaning o Both the ruled and rulers are answerable to the law o The independence and non-interference of the judicial system is entrenched o The principles of equality before the law  To be effective, Laws must be o Knowable: citizens must be aware of the law, and behaviour they are expected to uphold. Hence, ignore the law is no excuse o Predictable: The law can’t be arbitrary and capricious in its application The common law tradition  One of the main pillars or sources of law in Canada is the common law tradition, also known as the English Common Law  It is a system of law whereby judges: o Dispense justice based on past customs o On the precedents built up over the years in prior legal findings  Also known as a Case Law or Precedent, it is law developed by judges through decision of courts and similar tribunals  Common Law proceeds on the principle that it is unfair to treat similar acts differently on different occasions Precedence is king in common law traditions  The undergirding foundation of Common law is Precedence o However, what happens when there is no precedence or when one court ignores precedence?  In cases where the parties to a case disagree on what the law is, a common law court looks past precedential decisions of relevant courts  If a similar dispute has been resolved in the past, the court is bound to follow the reasoning in the prior decision o This principle is known as Stare Decisis  However, if the current dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make law by creating precedent o Thereafter, the new decision becomes precedent and will bind future courts Common Law in practicn the simplified system above  In practice, common law systems are considerably more complicated that  The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others  Ex: in most jurisdiction, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decision of the same appellate court o But decision of lower courts are only non-binding persuasive authority Civil tradition in Canada  In Quebec, the legal system is based on the Civil Law Principle  While common law is based on English Law, civil Law originates from Roman law o It was European Justinian who ordered the consolidation of all the laws in Rome  Like Justinian, Napoleon also asked for the codifications of French Law based on the Roman Model o What emerged came to be known as the Napoleonic Codes and it represented the authoritative written record of all laws  Unlike the Common law system, Judges of civil law cases are not constrained by precedence Features of Civil Law  The most prevalent feature is that its core features are codified into a referable system which serve as primary source of law  Historically, civil law is the group of legal ideas and system heavily overlaid by doctrinal strains such as natural law, codification, and legislative positivism  The court system is usually unbound by precedent, and composed of specially trained, functionary judicial officers with limited authority to interpret law  It is the most widespread system of the law in the world, in force in various forms in about 150 countries Administrative law in Canada  Administrative law is focused more on the relations between citizens and the administrative arm of government  It is more concerned with the day-to-day legalities of how administration takes place and seeks to outline the legal basis of such actions  Administrative law exists because o There is a lack of uniformity in the rol
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