Management and Organizational Studies 2275A/B Lecture Notes - Code Of Law, Counterclaim, Section 33 Of The Canadian Charter Of Rights And Freedoms
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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