Lecture 2 - intro to legal system (Keller)

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Management and Organizational Studies
Management and Organizational Studies 2275A/B
Cristin Keller

Lecture 2 – Intro to Legal system Previous chapter notes 1. Know: agency relationship “Parliamentary Supremacy” • Legislation overrides all other law and must be consistent with the Constitution • Legislation also overrides – Bylaws made by municipal governments – Regulations made by cabinet – Rules made by administrative tribunals Definition of Law for this Course - “Law is the body of rules that can be enforced by the courts or other government agencies” Categories of Law • Substantive Law - The rules that govern behaviour and set limits on conduct – Mediators of the law (telling you what to do) • Procedural Law - How rights and obligations are enforced – How do we enforce laws (the process) • Public Law - Regulates our relationship with government – Examples: criminal code/law, immigration, tax law – Substantive public law = criminal code – Procedural public law = if you think someone is in trouble then they have to go through the seps; file the report, take it to court etc… • Private Law - Regulates personal, social and business relationships – Enforced when one person sues another in a private or civil action – Everything else – Legal issues that do not involve the government Common Law Legal System • United Kingdom and Commonwealth of Nations (and the United States) • Judge-made Law – Developed in the Courts – Based on precedent or stare decisis (to look back) • Judges are bound to follow previous decisions of equal or higher courts in their hierarchy, on cases with like facts and law Notes: 2. Civil law also known as common law is situations where the government is not involved in the case 3. Judges hear cases and make decisions 4. stare decisis/ precedent (to look back): judges in low level courts have to use previous case knowledge where higher level courts were involved (only in same province). Then they have the obligation to follow that scenario o Lower court in Ontario has to follow higer courts in Ontario (higher court in BC has to follow highr courts in BC)  Ontario Doesn’t have to follow higher court from BC o Everyone has to follow supreme court (Ensures consistency) o Judges can “distinguish the case/facts” by saying the court case was not similar to a previous one (different facts) so they can use their own opinion and not a previous one (if they disagree with the outcome of the previous case) Sources of Law 1. Common Law/ Case Law a. The precedent-making decisions of the courts of Great Britain 2. Law of Equity a. Decisions made by Court of Chancery b. Equitable remedy – the equitable solution as opposed to the legal solution i. Examples: Make someone do what they promised, i.e. Apologize ii. Injunction: Example: make someone stop using my name in a bad way (google) 3. Statutes a. Easily noticeable as they are usually “acts” b. Legislation = statute Notes: 5. Statutes are higher than common law as they are elected by officials 6. Common law and equity have been combined in one court Common Law • Judges “discovered” (did not create it) law in custom and traditions of “common people” • Borrowed legal principles from: – Roman civil law – Canon or church law – Law merchant Equity • Common law courts had limitations due to the restrictions of stare decisis • Court of Chancery (Equity) provided relief • Resulting principles known as the Law of Equity Merger of equity and common law courts • Adoption of stare decisis led to rigidity • One court, but two bodies of rules • Both sets of principles applied (equity supplements and overrides the common law) • Common law is complete without equity, but equity is not without common law Statutes (Elected Officials) – parliamentary enactments/ modifications to the law • Legislation (Statutes and Regulations) overrides common law (judge-made law) • Often summarizes and modifies common law. For example: – Criminal Code – Animal Keepers Act Notes: Look for key words: code and act Functions of government  Legislative a. To create/legislate the law  Judicial a. Court system (interprets legislation and makes case law)  Administrative/Executive i. Agencies that administer and implement the law Notes:  Know relationship between judgement law legislative ??????? Confederation • British North America Act – Now Constitution Act, 1867 (know) • Constitution Act, 1982 – Charter of Rights and Freedoms • Canadian Constitution’s three elements: – Statutes – Conventions – Court Decisions Constitution and Division of Powers • Peace, Order and Good Government clause (government has residual power to make law with things not listed in constitution act 1867) – Residual power • Pith and Substance – intra vires (Google) – I think it means within the power of the court creating it? • Conflicting powers – ultra vires (beyond one jurisdiction or power)courts can go against what the constitution says to protect others – Paramountcy – when federal and provincial governments overlap the federal legislation is active and the provincial one is tossed aside
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