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ADMS 2610 (430)


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Administrative Studies
ADMS 2610
Robert Levine

ADMS2610 Session 1 Chapter 1 (pg. 8-23) Sources of Law Common Law – the law as found in the recorded judgments of the courts - Also referred to as case law - Not found in code but in the recorded judgments of the courts o these judgments were not always recorded o in 1290, Edward I started the Year Books o these books provided reports of cases but in early years, the decisions were not recorded - Reporting of cases in the form of law reports took place in sixteenth century - Common Law could be determined through the doctrine of Stare Decisis - Creates certainty and predictability (it must be clear in its meaning and predictable in its application) - A blend of predictable yet flexible principles that is capable of conforming to the changing needs in society o No two cases are the same o Differences in the facts or circumstances are sufficient to allow a judge to decide that a particular obsolete precedent should not apply to the case if it produces an unsatisfactory results - Adaptability of Common Law has enabled it to absorb, over a long period of time, many legal principals, customs and laws from other legal systems and sources o Law of England before the Norman Conquest of 1066 was local in both form and application  Consisted of a mixture of early customs, few remnants of early Roman Law and the laws and customs brought by the Anglo- Saxon invaders  Decisions were handed down by judges based upon local custom which was the only precedent available o Norman Conquest brought a central system for administration of justice along with the incorporation of the customs and laws from all parts of the country into the Common Law - Very slow to respond to changing societal needs o Follows a gradual, evolutionary pattern of change Stare Decisis – means “to let a decision stand” or “to stand by a previous decision” - A theory of precedent in Common Law - The doctrine means that a judge must apply the previous decision of a case similar to the one before the court if the facts of the two cases are the same, providing such a decision was: o (1) from the judge’s own court o (2) from a court of equal rank o (3) from a higher or superior court - Only the Supreme Court has the unrestricted ability to overrule previous decisions in cases of identical facts (does so only with caution) - Decisions of the Supreme Court of Canada are binding on all lesser courts o In cases of identical facts, all lesser courts are bound to follow the decisions taken by higher courts in their own jurisdiction - If a previous decision of a court on identical facts comes before the court a second time, unless there are compelling reasons, the expectations is that the earlier precedent will be followed - Decisions of higher courts or court of equal rank form other jurisdictions are persuasive but not binding Canon law (Church Law) – the law developed by the church courts to deal with matters that fell within their jurisdiction - The church originally had jurisdiction over religion, family and marriage, morals and matters relating to the descent of personal property of deceased persons - These laws were initially administered by ecclesiastic courts - Some cases also found its way before judges of the civil courts - After the Reformation (1534-1538), much of the ecclesiastic courts jurisdiction passed to the royal courts - In dealing with cases that had previously fallen within the ecclesiastic courts, judges looked at the decisions of those courts before reaching their own decisions - Many of the rules of Canon or Church law became a part of the Common Law Merchant Law – the customs or rules established by merchants to resolve disputes, and were later applied by Common Law judges in cases that came before their courts - Senior merchants originally settled disputes between merchants and their decisions were final and binding - Rules of law relating to commercial transaction began to emerge as the decisions of the guild courts became firmly established and consistent in their application by the merchant guilds - These courts only had jurisdiction over its members - Merchant Law was the exclusive domain of merchant guilds - As more merchants who did not belong to any guilds began trading, when disputes arose, they appealed to the courts of the land for relief o Judges in these courts applied the law of merchant to deal with these disputes - Gradually became a part of the Common law Equity – rules originally based on decisions of the king rather than on the law, and intended to be fair - Not a part of Common Law - It is a body of legal principals that takes precedence over the Common law when the Common Law and rules of equity conflict - Was developed because the Common Law in England was rigid in its application by the fifteenth century and litigants (a party to a lawsuit) couldn’t obtain a satisfactory remedy from the courts - To obtain the satisfactory results, the king and his chancellor would hear these cases and make a equitable decision (one not necessarily based upon the law but one that the king considered fair) - These rules became known as principals of equity - Eventually took on the form of rules of law - Late nineteenth century, the court of Chancery and the Common Law courts merged, and the rules of equity became a part of the body of law o Courts would apply to any civil case  A judge may apply either Common Law rules or the principals of equity to a case before the court  If the Common Law is inappropriate, the equitable remedy is usually available to ensure a fair and just result Statute Law – a law passed by a properly constituted legislative body - Latin word “Statutum” meaning “it is decided” - Statutes are the product or end result of a legislative process o Under this process, the wishes of the people as interpreted by the members of a provincial legislature or the Parliament of Canada are bought forward for debate in the legislative assembly  Where they finally become law if the majority of the legislators believe that the law is necessary - The process is slightly different Federally and Provincially o (1) Statute law has its beginnings in a bill (a proposed law presented to a legislative body such as the house of commons or provincial legislature) o (2) The bill then requires a motion (or decision) to have the bill read a first time and printed for circulation  time is given to members of legislature to read and debate the contents  the bill comes before the legislature (or House) for a second reading and is debated in principle  when the bill passes the second reading, it is sent to a committee of the House or legislature for study on a clause-by- clause basis  bill must be passed one clause at a time  once the amended bill has been passed by the committee, the chair of the committee reports the bill in final form to the legislature  the bill may be subject to further debate and amendment before a third reading  when passed, the bill is sent to the senate at the federal level to be approved
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