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Week+1+Answers+-+Chapters+1+and+2.doc

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Department
Philosophy
Course
Philosophy 2080
Professor
James Hildebrand
Semester
Winter

Description
Week 1 - Questions and Answers Chapters 1 and 2 Chapter 1 6. Q: Explain the common law system, and how it relates to the function of the courts. A: The common law system, legal system relying on the decisions of judges / the courts to as the major source of legal principle. 7. Q: Why is the doctrine of stare decisis an important part of the common law system? A: Stare decisis, the decision stands, the fact that each ruling is binding on lower courts in future cases involving similar facts, the common law system would not function if decisions were not binding. Decisions are the source of principles of law. 8. Q: How does the common law differ from the principles of equity? From statute law? A: Equity is a separate set of principles, evolved at some later time, to step in and supercede where common law principles as established yielded a result that was unfair, or unjust. 9. Q: How does a legislature establish a new law? Explain the procedure. A: This is set out fairly completely in the text, on pages 16 and 17 (7 th edition) and pages 10 and 11 (8 edition), there is no need to reproduce this here. 10. Q: Define substantive law, and explain how it differs from procedural law. A: Substantive law, the principles of law that set out rights and obligations, i.e. “what you get”: Procedural law, the process or means by which the substantive law is put into effect, i.e. “how you get it”. 11. Q: Describe the difference between the common law and the Civil Code of the province of Quebec. What are the relative merits of each system? A: The common law system, the system of relying on the decisions of judges over time to establish legal principle. The Civil Code system of law, where the substantive “civil” law (i.e. law that is not criminal) is codified in a statute. Common law system: flexible, over time law is easily changed; but change is slow; Civil code: change in statutes is faster, codification produces greater certainty, simply refer to the Code, however, still subject to interpretation, and technically courts are not bound by prior interpretations; statutes must be perfectly worded to function properly; statutes are narrowly interpreted by the courts; 13. Q: How does a “regulation” made under a statute differ from other “laws”? A: Regulation: subordinate, secondary to, it serves or puts into effect the enabling statute, can be modified or created by an official or an official “body” empowered by the primary statute, no debate required, no reading, no committees etc. 14. Q: Explain how the enforcement of a public law differs from the enforcement of rights under private law. A: The state enforces public law, private individuals must bring a law suit to enforce private rights. 15. Q: The Canadian Charter of Rights and Freedoms has been described as being “supreme” law, or law that is “entrenched.” Why, or in what sense, is this the case? A: Supreme: all other laws must conform to the Charter, if they violate the rights and freedoms and cannot be justified under s. 1, they are of no force and effect; Entrenched: can’t be changed by a simple act of Parliament, only changed by a special amending formula. 17. Q: Does the Canadian Charter of Rights and Freedoms permit the Supreme Court of Canada to override the will of Parliament or a provincial legislature? If so, in what way? A: Again, if the statute, the expression of the will of Parliament, is inconsistent with the Charter, the courts have the power to declare the law of no force and effect. 20. Q: In what way does the Constitution Act, 1982, affect the legislative jurisdiction of the Parliament of Canada and the provincial legislatures? How are the questions of jurisdiction decided? A: The Constitution Act 1982 incorporates the British North America Act 1867, re-named the Constitution Act 1867, of which s. 91, and 92 set out the legislative powers of the provincial and federal legislatures. Each law- making entity can only make laws about things listed in these sections. The courts must decide questions of jurisdiction, a law outside of that body’s jurisdiction is ultra vires and therefore of no force and effect. Chapter 2 1. Q: “In a free and democratic society, the courts perform the important role of guardians of the rights and freedoms of the individual. While important, this is far from being the only part they play in society.” How do the courts perform this important role? What other functions do they have in society? A: In Canada, courts ensure that statutes are consistent with the Charter, as well as decide if an official has acted within his or
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