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Lecture

ADMS 2610 Lecture Notes - Inherent Jurisdiction, Homicide, Law Reports


Department
Administrative Studies
Course Code
ADMS 2610
Professor
William Pomerantz

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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
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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 àpower 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
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- 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