HUMA 1825 Lecture Notes - Legal Positivism, Statutory Interpretation, Narratology

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Published on 24 Nov 2012
HUMA 1825 Note 9
Class Writing Assignment
- There is a modification for next week
- Disregard the extraneous, zero in and focus on the essential.
- There are three questions that are all around one theme.
o This will allow us to adjust a bit: woohoo!
o Answer the goddamn questions as ASKED. Nothing more. Nothing less
- Fuller, Dwarkin, and Kafka: Read the two short stories.
- The Alpha and the Omega is the text. Read the Fuller Text. Read the three
cases. Read Dwarkin.
- Dwarkin was about theory, cases is in practice
- Cases: how judges decide cases; that is novel cases; cases of new instances.
Where the facts of the law don’t quite mesh.
o This is the illustration of the theory that we have learned.
Case law. We get to see the theory applied to practice
- Next week we’re watching a film that shows the application of the theory to a
“Hollywood depiction” of a real trial of Nuremburg.
- By doing these tests, we are acquiring skills.
- Each case deals with a gap in the law of a moral issue.
- We get to see what judges do in a case of first instance. Never before have
these facts been related to the law in question. This is referred to as novel
- Reading case law:
o Judge made law common law: The English law initially applied in the
courts derived from ancient usage and judicial decisions called the
Judge made law is distinguished from statutory law:
Statutory law is the law made by legislators,
parliamentarians, or parliaments who pass bill and
o The cases are the application of different theories of adjudication.
This is what judges do when they decide cases. We see natural
law theorist (modern ones like Dwarkin) use expansive
approaches based on moral authority. Legal Positivists, on the
other hand (like Bork) who use a narrower approach of
interpretation based on notions of power and the division of
powers in a democracy as between the legislator and the
o Every legal case that we will ever read is a human narrative (story).
o Every case has two elements to it:
The human story (facts of the case that tell the story)
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Who, what, where, when and why? The facts answer
those questions. These facts are established at trials by
two ways:
o Evidence:
Witness testimony and documentary
o It remains an allegation: not a fact.
These tell the facts of every case
The law.
There’s a law in every case.
It can be part of a penal or criminal statute:
o Whiteley is a criminal law.
o Canada = Criminal Code of Statute
Law can also be part of the Statute that governs the
making of wills. Palmer
Sometimes, the law is the aspect of public law such as
insurance policies Dhingra
Sometimes, what is on trial is not the person himself or
herself, but the actual law it. Dronenburg: the law
banning homosexuals from practicing that he alleges
constitutional. What is on trial isn’t Dronenburg, but the
law under which he was dismissed from the military.
o His right to privacy and equal treatment under
the law.
o In second semester, we look at three cases where Canadian
Constitution the law is on trial:
Hate propaganda, pornography and prostitution
o We will see cases where litigants say that the law that they’re being
charged is that the law is unconstitutional that they’re being tried
Sometimes, the law is at fault
- Therefore, what every case involves is the interplay between the facts and
the law.
o How you apply the facts to the law is what is crucial.
o This is how to see concrete facts
o Law schools teach you how to think like a lawyer
Applying concrete facts and abstract principles in a given case.
- All of our cases are appellate cases:
o The First level (lowest) is the trial level. These cases have all gone to
trials, and one of the parties is appealing the decision made against
them, so we’re at the appellant level. In Canada there are courts of
appeal in each province and territory, and there are courts of appeal
in the US.
- The last run (apex) is the Supreme Court of Canada. Very few cases of the
10,000s of cases that are litigated actually get to the Supreme Court. About
100 cases are considered.
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o What happens at the appellate level is very different than what
happens at the trial level
Trial level is very dramatic (melodramatic). There’s much
However, Court of Appeal is different in the sense that the facts
are accepted at the appeal level. Something to do with the
LAW. Either an error IN the law or a mixed error in the facts
and law.
The arguments are legal, technical, and dry. This is a very
specialized exercise at the appellate level.
The arguments are very archaic an specialized.
There’s a vocabulary that goes with these matters.
Style of Cause (title of case)
o The title gives us who the parties are, and it gives
us the court level, the year of case, and the
publication in which the case is reported.
There are many cases that are unreported
in the sense that it isn’t published.
o The style of cause is always in Italics, and when
you’re writing you underline.
At the trial level in legal cases we talk about the plaintiff
and the defendant
At the appeal level the plaintiff is the appellant, and the
other level is called the respondent (sometimes called
the appellee). The judges are referred to as Justice.
At the Supreme Court, there are 9 judges. They always
sit in panels of uneven number, so that it can never be a
tied judgment.
o It can be unanimous. The judgment can be
concurring (others agree, but write their own
decision), and then there can be a decent (the
dissenting opinion has lost, but it can be
For example, Justice Brandice wrote a
very powerful dissent on privacy. His
judgment is often quoted in other case
In the hate propaganda cases there was
another dissent quoted by Justice
The dissent is lost, but it doesn’t mean
you shouldn’t pay attention to it. The
reasoning and thinking can be very
- When reading a case, be on high alert when a judge writes “in my opinion”
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