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Week 1 - Chapter 1, 2.docx

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Philosophy 2080
James Hildebrand

Week 1 - Introduction to the Law and the Courts Chapters 1 and 2 Chapter 1 - The Law and the Legal System THE LAW: * We are primarily concerned in this course with the common law system as it exists and applies in Canada, principally in Ontario, hence the discussion is chiefly about the development of the English common law system. What is Law: - rules someone (state) will enforce - the entire body of enforceable rules What it does: 3 main functions 1. settle disputes, (the rules of combat) 2. prescribe rules of conduct 3. protect people What comes first- the chicken or the egg? Does the law respond to social change, or does society change in response to new laws? The author has an opinion about this, what example does he use to illustrate the point? The Rule of Law: means 2 things: Small sense – we are governed by, adhere to law Large sense – the laws are not arbitrary, they must be fair It has been said that Russia, the former Soviet Union, will never enjoy the benefits of a modern economy until it embraces the rule of law. That is because most of the economic activities driving the Russian economy are outside of the law. This would appear to be in conflict with the rule of law in the small sense. Before now, when Russia was part of the Soviet Union, many civil rights were arbitrarily denied or suspended by the ruling communist party. Even though the suspension of civil rights was enabled by legal rules, enforced by the police or the military, those rules were arbitrary and contrary to what we think are fundamental human rights. This would be in contradiction of the rule of law in the larger sense. The Law in England: an evolutionary process 2 FLAVOURS 1. common law 2. statute law 1. The common law: “judge-made law” EVOLUTION OF THE LAW: - Roman occupation, Lex Romana (codified) - Germanic invasion, England divided into shires (jurisdictions) - Norman conquest, 1066 and all that power of the shires brought under centralized power of the king - laws were also centralized - county or shire courts came under jurisdiction of the king’s justices - 1180 - king’s justices traveled to hear cases - 1234 - king’s justices start to keep own records of decisions - 1272 - maintain a central system of record keeping - developed into consistent body of rules - recorded decisions became “statements of the common law of England” COMMON LAW - judge-made law - decisions of the courts - what seemed rational, intuitive “discovery” of legal principle - common law countries : Canada, the U.K., U.S., Australia, New Zealand Stare decisis: Latin for “the decision stands”, the system of case precedent - judges rely on a previous decision, in similar fact situations, to decide the case they are considering - same court or lower courts are bound by previous decisions - lawyers may argue the facts in their case are different enough to avoid the application of the principle, or to argue an application of the principle should give a different result than the precedent case – called distinguishing on the facts Ratio decedendi : “the reason for the decision” - the part of the decision that is binding - for example: In a case where a defendant was on trial for murder, the judge may decide the accused should be acquitted. That is the decision. The reason for the decision might be that when a person’s life is threatened, that person is entitled to use reasonable force to avoid injury, and if the force is reasonable, then the defendant will not be convicted even if the assailant was killed as a result of the use of that force. - now you have a binding general principle, a statement of the common law, to be applied in homicide cases, where appropriate - the ratio is not always simply stated or simply found, and there can be much debate on exactly what a case stands for, often requiring higher courts to consider and discuss a case many times before it is settled as to what the ratio of that particular case might be - accordingly, don’t be alarmed if the ratio doesn’t jump off the page when you are reading a case Obiter dicta: “things said by the way”, parts of the judge’s comments or reasons that are not binding Common law also draws on: Canon Law - Church had been responsible for certain areas of law, - religion, family, marriage - 1500’s - jurisdiction passed to law courts - canon law precedents in some of these areas incorporated into the common law Law merchant - historically merchants settled disputes among themselves - voluntarily subjected themselves to decisions of more senior merchants - incorporated into common law, much of contract law is from law merchant - case precedent gave the law some stability - common law generally has been flexible BUT: - over time the common law become rigid, therefore: COMMON LAW v EQUITY PRINCIPLES OF EQUITY: - set of rules that take precedence over common law rules where strict application of common law yields a result that is unfair - historically, where common law generated “unfair” result - petition the king for help -- later petition king’s representative called a chancellor - chancellors presided in courts of Chancery - principles of equity evolved in the same manner as common law - late 1800’s, common law and courts of chancery merged -- common law and equitable principles applied by the same judges in the same courts Modern example: Consider an unmarried couple share a residence, but the deed of land may name only one person. At common law, the person named on the deed is the “legal” owner. Should the couple separate, only the legal owner would be entitled to this property. An equitable doctrine or principle called “constructive trust” creates a legal presumption that a person is entitled to benefit from their own contribution, whether that person is “legal” owner or not. Just like under the common law, if the facts proved support the application of constructive trust, this doctrine may be followed by the courts. It should also be noted that even though equitable principles are a set of “rules”, and can only be applied in a way consistent with previous case law, equitable rules are not applied automatically. The courts have discretion as to whether they should be applied. I am including the web site of the Supreme Court of Canada, it is easy to navigate, and contains a great many important decisions. You will find current cases, as well as cases that are considered to be pivotal in Canadian legal history. If you take the time to visit this site and read a case or two, you will notice that the court takes into consideration a great number of cases that deal with similar subject matter. In this way it is easy to see the evolutionary nature of the common law in action. The Supreme Court of Canada 2. STATUTE LAW: - be familiar with the process, page 16-17 (7th edition), pages 10 - 11 (8th edition) - codified, “written” law - *note, even though statute may be the source of a particular legal principle, case law is still important to determine how the courts will interpret and apply the statute, court decisions that interpret statutes are binding in the same way as other decisions Different kinds of written laws: a) federal: Acts, and regulations b) provincial: Acts and regulations c) municipal: By–laws d) constitutional: special kind of statute - can identify a statute by the way it is referred to: eg R.S.O. means Revised Statutes of Ontario - provincial (parliament) and federal (house of commons) legislatures “pass” laws - statutes can overturn or contradict existing common law / equity - or can be the same as above, - may clarify existing law - make new law to cover new things, internet and airplanes - law -making powers of the provincial and federal legislatures found in the “Constitution” CANADIAN CONSTITUTION - first Canadian constitution made in U.K. - British North America Act, 1867 (B.N.A.)British document, an Act of the British parliament, - set out powers of gov’t : 1) legislative; 2) executive; 3) judicial Division of Powers: power of the different legislatures to make laws - s. 91: federal government’s power to make laws: criminal law, banking, etc - s. 92: provincial government’s power to make laws: property and civil rights, etc. Ultra Vires: when a legislature makes a law outside scope of its power, law is declared by courts to be unconstitutional, as ultra vires, latin for “outside power” - either a province or the federal government can challenge a law’s constitutionality - powers of the courts/ judges also set out in B.N.A. Independent judiciary: courts are independent of influence of governments or political parties - historically, no power in Canada to change the B.N.A., could only be done by English parliament REPATRIATION Canada Act 1982: U.K. statute giving up constitutional authority from England to Canada Constitution Act, 1982: U.K. statute, Schedule “B” to Canada Act - incorporates British North America Act 1867, renamed Constitution Act 1867 - includes Charter of Rights and Freedoms, Charter of Rights and Freedoms - contains fundamental rights and freedoms - the "supreme law": s. 52(1) when other statutes violate the Charter, "of no force and effect" - sets limits on government’s ability to make laws infringing rights and freedoms Entrenched: Constitution can't be modified or changed by Parliament in the usual way, special amending formula, found in Part V, s.38 of Charter Notwithstanding clause: s.33, any legislature can opt out of certain parts of the Charter, express intention, lasts for 5 years Section 1: - if a law violates a Charter right or freedom, can it be “justified” under s.1 of the Charter?, if not, law of no force and effect - see discussion page 23 (7th edition) page 15 (8th edition), Chapter 2, s.1 is the “reasonable limits” clause - judges can decide laws passed by the government are of no force and effect * Charter applies only to official acts, i.e. the act of government in making or enforcing a law, does not apply to private disputes Judicial Activism: some people feel judges should not exercise a power over the legislature, they do not answer to the people through the political process, they are too active when declaring laws of no force and effect Canadian Bill Of Rights R.S.C., this was enacted by the federal gov’t in 1960 - bill of rights similar in wording to the Charter - only applied to official acts of the federal gov’t - could be repealed or changed by a simple act of parliament at any time - rarely used - includes a right to property, which is not found in the Charter Web sites: This is a web site of the federal government of Canada, containing all the federal states and regulations, including the Charter of Rights and Freedoms. Consolidated Statutes and Regulations of Canada This is a web site of the government of Ontario. You may find this site extremely useful if you are a tenant, or an employee. You can also find proposed laws or laws that are not yet in force. Statutes Titles/ Ontario PUBLIC V PRIVATE LAW Public: law between state and individual, Criminal Code, Highway Traffic Act, state interest, state pursues the case (* the “state” refers to any government agent or activity) Private: law governing disputes between individuals, can be common law or statute law, individual pursues the case, privately funded PROCEDURAL V SUBSTANTIVE LAW Substantive: the law, legal rights and obligations, “what you get” Procedural: the p
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