What is the Law? 13/09/2012 9:42:00 AM
A set of rules that people have to abide by.
Difference between a rule and a law – laws are enforced by the
LAWS: rules that have a connection to the state, or the government, and
Lords day act – illegal for stores to be open on Sundays.
Lots of theories about what the law is:
LEGAL POSITIVISTS (such as Machiavelli):
o Say that “might makes right”
o Enforcement is the only thing that matters
o Based on this, Nazi laws would have been valid
o Theory that enforcement doesn’t matter and in fact neither
o Human attempts to make laws are just feeble approximations
of the “real” law
o Religious people normally believe in the “natural law”.
o Law which transcends human made law – approximation at
best of the ”law”.
HOBBES, MILL, theory rests in the middle:
o Law is a law if it does good for society, if not then it isn’t
o Measure of a law is the benefit it provides society.
ALSO HAVE LEGAL REALISTS:
o “None of this matters, law is what the judge had for
o all depends on the judge- If he is a douche then that fuckin
Cant say if any one is right or wrong
Prof does subscribe to notion that laws must be enforced.
Enforcement is NECESSARY, but that’s not all
Prof says there is a code of natural conduct
Measure validity of law based on how much good it provides
Also cant dismiss legal realists entirely.
QUESTIONS TO ASK: 1. When looking at the law, think about not just what it is, but what it
2. What would be a good law here?
3. What is the reason that the law is there?
4. Who’s benefitting from this law? Why is it being put in place
5. Ask yourself what the policy is behind this law.
Where our Law Comes From:
Constitutional Law – most important because it trumps every other type
Also important because it separates us from most of the rest of the
Don’t take for granted what it means to live in country where
government must abide by law.
We live in a country where we can criticize the government with no
fear of punishment
That notion sets us apart.
Legislation / Statutes:
Where do we get legislation from?
o Out of the legislature comes statutes – written laws that get
debated and then voted on
o Once approved, becomes an act / statute
Common Law / Cases:
Where does common law come from?
o Every case ever been decided becomes common law
o System of precedent – for the most part, we will treat like
cases alike. WHY?
Allows for decrease in risk
Judges don’t like to get appeal
Appeal means that one side feels that the judge got it wrong. What keeps judges on their toes is the prospect of their decision
If it is appealed and successful, decision is overturned and
successful party is happy.
How does the law ever change?
Law does change, but usually very slowly
Law always drags behind social norms
2 ways laws can change
o Government passes legislation
o Also changes at the level of common law
Judges are influenced by the world around them
**Cannot look at the law via snapshot, must look at its
historical and future meaning**
law always lags behind social norms, sometimes in profound, unfair
every province has their own court of appeal, which each have their
own multiple trial courts.
Only one, supreme court of Canada. Is itself an appeal court
Also another parallel court structure under SCC – the Federal Court.
You have a right to have your case appealed to a court of appeal.
Do not have a right to be heard from by the Supreme Court of Canada.
SCC deals with cases of national importance,
Only deals with cases they want to deal with
Courts of appeal:
May only appeal on matters of law, NOT FACT
don’t hear of them as much as they are kind of boring.
Difference between criminal law and civil law:
o Anything that is not criminal law is civil law
o In criminal law, the state is ALWAYS involved
State versus the accused, ALWAYS
Purpose of criminal law is punishment Also want to deter other people from committing the
PUNISHMENT AND DETERANCE = criminal law
Criminal law = retributive justice
Very high burden of proof
o Civil law
much lower burden of proof
Why? Criminal = someone’s life is on the line
Prejudices creep into the system
Difference between civil law and common law:
o Civil law is distinct from common law
o civil law = not criminal law
PUBLIC VS PRIVATE LAW:
Criminal law is the state vs the accused, always PUBLIC LAW
Civil law can be private OR public
If government is a part of the trial, then its public.
Made up of 3 parts:
i. Written law
EX: charter of rights and freedoms
Example of unwritten = position of prime minister – not
written down anywhere
All customs and conventions
ii. Oral Law
iii. International Treaties
Federal government that passes laws at house of commons in
Provincial parliaments in different provinces at wherever they are
Constitution sets out which areas in which federal gov can pass
laws, as opposed to provincial governments.
Things that overlap? – Federal gets it Things that are not outlined at all? – FEDS
The above is important because it means that if a government tries
to pass a law outside of its jurisdiction, cant do it.
CHARTER OR RIGHTS AND FREEDOMS:
Provides a list of rights and freedoms that every person IN Canada
Don’t have to be permanent resident
Freedom of religion, expression.
Freedom of speech
Legal rights – life, liberty, legal counsel
Equality rights – no discrimination due to age, gender,
Canada has been a leader in freedom approach for a long time
o Respect for human rights, and equality is unmatched.
Are these freedoms absolute? No
Whenever talking about rights and freedoms, always a competition
between one persons rights and another’s.
Certain Limitations of the Charter:
a. Section 33: Charter of rights and freedoms ONLY applies to
b. Notwithstanding clause: allows members of gov to opt out of
SOME parts of the charter.
c. Has to be reasonable limitations Dispute Resolution:
Rules of civil procedure: laws to do with how you go about
enforcing your rights
Aka procedural rules
a. Jurisdiction which court are you going to go to?
b. Pleadings plaintiff files statement of claim with courthouse, tells
them you have commenced a lawsuit, then have to serve them the
statement personally, letting them know you are going to sue them.
i. Then, they have a certain amount of time to make a statement
ii. Now court has a statement of claim and a statement of
iii. Defense can file a counterclaim – defense and counterclaim
iv. That also gets filed with the court, plaintiff files a counter
v. Defendant can add another person to the claim – crossclaim.
1. Pretty much putting the blame onto someone else.
Once the pleadings have been exchanged, move to discovery:
o Lot of misunderstanding in this area
o Not like how it seems on TV
o Evidence and witnesses are all known beforehand
o Every single thing that is going to be addressed in trial must
be exchanged among both sides.
o All designed for an EFFICIENT TRIAL
o Each side must have the opportunity to know what
information other will bring up in trial.
o Also not nearly as entertaining as it seems on TV
o More like a debate
Have time to present your side, then the other gets up
and presents their case, each with no interruption
o Plaintiff always goes first in an attempt to prove his / her case
o Get up on stand, lawyer asks you questions.
o Trying to achieve a negotiated settlement
o Either party can leave if they want to
o Goal is same as negotiation
o Bring people together
o both sides put case before arbitrator and arbitrator makes a
o each side gets half a day to make case, 2 days later arbitrator
makes their decision.
o Much quicker, much cheaper
o Can save the relationship, sometimes but not always
o No distraction from the business
o Private! As opposed to public nature of litigation
o Once arbitration has concluded, cannot then go towards
litigation process if unhappy with arbitration decisions.
Criminal Law – state vs accused
Civil law stuff other than criminal law
can only appeal on matters of facts
1. identify the risk
2. evaluate the risks – whats the likelihood of harm? Whats the magnitude
of harm? Whats the risk?
Talking about 4 things:
i. Assuming the risk
ii. Shifting it to someone else
o How? Insurance!
iii. Minimize the risk
iv. Avoid the risk – don’t even bring the computer to school!
A contractual relationship
How does insurance work?
o Calculate the entire risk
o Apply that to everyone they are insuring o + Admin costs
o + Profits
o = Premium payment
different types of insurance
very regulated (sale of insurance has previous record of being
3. Contracts: 13/09/2012 9:42:00 AM
Contract: an exchange of value which the law will enforce.
Subset of those promises, that are legally enforcing
Contract law governs all legal relationships
Everywhere we look in business we see contractual relationships
Need to understand contract law
o Capitalism depends on contract law
o If there is a free market, then it relies on our freedom to
enter contracts, because after all that’s what the free market
Buy whatever I want whenever I choose = free market
o If we didn’t enforce contracts, economic system would look
o Much of capitalist economy relies on upholding of private