Pols3135-sept13.docx

Friday September 13 , 2013 Public Law I- Pols 3135 What is law?  The word “law is used in a variety of contexts, eg. God’s law, law of land  Gods law = command from law  Law of nature (physics) = there is a regularity in the word never changes. Law of physics describes that invariant nature  Law of Land Law of land  Political law consist of a set of rules governing citizen behavior in a political territory o Law is always territorial: o In America there’s American law , Canada there’s Canadian law o Jurisdictionally based  How distinct is national law from other rules? Eg) what sets political law from others like Gods law o National laws have institutions ensuring its enforcements ( the coercive factor)  Coercive sanctions available and can be used by institutions of the state  Can the law be understood by merely attending to the written words of statues ( the linguistic perspective ) ? o What role is played by  Judicial discretion ?  Persuasiveness of lawyer?  Interpretation by public servants and elected politicians ?  Interpretation by ordinary citizens o Law is subject to interpretation  Law in use is always argumentative. We always argue about what it is.  Example is meant to emphasize the argumentative nature of law in use.  What makes law legitimate in a democracy? i.e) how does law acquire its capacity to govern our behavior o We obey the law because we make it. At a distance we are the authors, we choose those who govern us and write them  Enacted by legitimate political institution? How is Parliamentary law made?  Introduced in house of commons,3 readings, sent to governor general. Governor general acts as representative of the queen. Command of the queen  There is an element of command in legislation o Law is a command o Someone’s command o Why do we obey? Habit? Schools of Legal Thought: Judicial positivism  The only law that  They believe the law is what I written down  Good judges can interpreted what’s written down  If they stay close to what’s written, not their own judgment Natural law  there are higher laws that positive law ought to emulate.  Law of state cannot contradict higher law of nature Judicial realism  Judges cant be impartial  Even if judges try to be impartial the law can never be perfectly clear. What makes judges decide the way they do  Canadian judicial realism Speluncean Explores Four men trapped by cave in. One suggested cannibalism. They where charged.  One Judge: apply established law literally & convict (positivist)  Second Judge:  Third Judge Divisions of Law CANADIAN LAW I. Substantive Law  Statue Law  Case Law II. Procedure Law  Rules o This is how you handle case in court. Rules to handle law Substantive Law  Public Law o Law that involves the state and individual citizens o Two levels of state having a dispute o Criminal Law- most common o Constitutional Law- rules on how state govern o Administrative Law  Private / Civil Law o Law involving dispute between two individuals o Its private o Family, Contract, Property, tort, labour Common Law v. Civil Law  Civil law in contrast to public law it means ; family, tort contract  The other sense civil law refers to another legal system common in Europe and other parts  We have common law that we inherited from Britain. It’s a british derived legal system  Civil law initially derived in Europe but it spread to other parts of the world, most likely the countries that it colonized Two Legal Traditions: Common Law : Judge made law, there judgments or legal decisions constitutes as common law. Precedents became rule. Civil law is written in one book , derived from Roman law . Law from several principles  9 provinces we use common law to govern cases in private or civil law  Only Quebec uses a civil law in private or civil law o Quebec inherited the French civil law Friday September 20 , 2013 Public Law I – Lecture #2 Sources of Law Main Sources of Law:  Written constitution (s. 52(1) of CA , 1982 o Supreme law o Foundation, tells us how government are choses, what powers they have and how can they o 1867- BNA Act- Canada (Quebec, Ontario), nova scitia, nova scotia. 1 st constitution act. o New constitution act 1982- added charter of rights and freedoms (8:00min)  Statute law (laws created by legislatures) o Primary passed by legislature after debate and committee study o Primary law. o Pieces of legislation Subordinate Law o Regulations , orders-in-council devised by bureaucrats to give substance to primary legislation o Secondary legislation bureaucrats (12:00min)  They have to be published in the Canadian Gazette Case Law  In common law systems court rulings that clarify the law or fill in gaps in the law themselves have the status of the law  Do judges make it up? Judges sat they “find” the law o They make fiction that when they are making the rulings that they are not making the law.  Part of the case which has binding force (precedent ) and hence status of law is ratio decidendi o Ratio decidendi – part of legal judgment that contains court primary reasoning as to why they concluded the case o They give a reason  Other authoritative statements in judgment which do not have precedential value are known as obiter dicta o Obiter dicta – other reasons Constitutional Conventions  Unwritten rules ( not part of statutory laws) which are said to inform the way our government works and there are regarded as part of our constitution and create an obligation - that is they should be followed o Aren’t justiciable- courts cant enforce them. (why are we obliged to follow) o By convention the leader of the party with most seats in an election they are asked to form the government and their leader is prime minister 25:00  Prime minister and members of cabinet advised government general ruling o Unwritten rules like how we select our prime minister o How are we able to amend BNA .  To amend a law we just pass a ne law to amend it Crown Prerogative  Prerogative powers are defined as “ the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.” Typically delegated to G-G and L.G, eg. Appointment and dismissal of the prime minister, and the summoning , proroguing and dissolving of Parliament in accordance with ministerial advice. 31:48 o What was left over to the monarch that Parliament did not take away o Eg. Prerogative of queen to prime minister – gives job to governor general, he choses prime minister. (cases of a tie ) Informal Sources  They are not officially a source, (39:00min)  Often referred to by judges ( like the Magna Carta, Peter Hogg, roman law , community standards- 43:00) British Legal Tradition  Rules of Receptions : depends whether colony acquired by conquest (or cession) or by settlement. Rule of reception -Law of conquest people remains in force except to extent necessary to establish British rule (it would impose criminal law system.)  Colonies that where gained through Settlement= all British status (and common law) law deemed to apply to colony as of date of “settlement”. Date if settlement assumed to be date when colony established its own legislature. Once they had Colonial legislature and subsequently amend this received legislation or supplant it with own laws. Moreover , colonial courts have power to declare certain British statutes “unsuitable” to the colony o  Dates of Reception: o NB & NS: 1758  Colonies of settlement o Quebec: 1759: French civil law. 1763: English public law  Acquire through conquest, maintained its own law o PEI: 1763  o Ontario: 1792 o Newfoundland: 1832 o BC: 1858 o Man , Alta., Sask: 1870  Principle of Parliamentary Supremacy o Parliament of the day can make any law it wishes  They have the last word o So the ns legislature can make any law it wishes  “Imperial” statutes (Br laws applying to whole empire) were unlike ordinary British statutes. Count be amended by colonial legislatures. o They could not be amended by colonial legislatures , they had to be adhered. o They were passed by British parliament to specifically apply to colonies, they could not change these.  Colonial laws validity act, 1865 clarified range and force of Imperial Statutes (only those that were explicitly directed at colonies). o Clarified which applied and which didn’t o Any colonial law that contradicts the imperial statues  Doctrine of repugnancy defined o Any colonial law that contradicts imperial statues, that law will be deemed to be no force in affect. They colonies cant enforce them because they are repugnant to the imperial statues .  1867: creation of Canada with the BNA which serves as Cdn constitution o it sets the terms of unions, its also one of the laws we cant change. Fundamental law.  They got the word dominion from the bible,,  Canada sovereign in domestic affairs but not foreign affairs. Road to Autonomy  The Statute of Westminster (grants autonomy to those dominions, birth of the common law ) finds its origins at the Imperial Conference of 1926. Lord Balfour, Britain’s foreign ministers, suggested that all dominions be granted full autonomy in their legislations. o They would resend Colonial law validity act This would establish equality amongst Britain and the Dominions. These nations included the dominion of Canada, the colony of newfoundland, the commonwealth of Australia , the dominion of New Zealand , the union of south Africa, and the Irish free state. o The white dominions were given the opportunity for self government o Canada for its own domestic reason choose to ask Britain to except Canada from complete autonomy. Canada couldn’t amend BNA ACT  BNA Act (1867) was an imperial statute, therefore could only by amended by British Parliament Statute of Westminster did not change this situation. Why not?  Supreme court of Canada created by federal statute in 1875 but not highest court.  Highest court is JCPC- a specialized committee of British house of lords hearing appeals from Dominions. Judicial committee of the Privial Counsel. o Stop criminal appeals to jcpc 1920’s. 1930’s made rulings they didn’t like. A piece of legislation introduced in 1939 , 1949 yes Canada can end appeals to JCPC Constitutional Patriation: Persistent Failure  From era of Statute of Westminster onward a growing sense of nationalism in English-Canada led to calls for constitutional repatriation from Britain.  1929-1981: many failed constitutional conferences.  Why?  Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, ¼ Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Albertan and Quebec premier couldn’t get cabinet to agree Only link is the jcpc , 129min  128min- We asked Britain to keep the colonial validly act. We chose to retain British over our constitution. We were scared. Because of the constant fighting between the provinces and federal govt regarding the divisions of powers. Provinces were scared the federal government would have control over the constitution and put it in favor  Constitutional Crisis of 1980/82: The Quebec Referendum  In 1976- separatist party (party Quebeqouis) was elected to power in Quebec. Bill 101 – strengthen French language in Quebec. o 1980- Referendum in Quebec. (Special election) o 60% of Quebecers voted no The Trudeau gamble 1981-82  1980 Quebec failed referendum on sovereignty association  1981 constitutional conference called by Trudeau. Only two provinces supported Trudeau was Ontario and new Brunswick o he pushed to bring constitution back home and to add to it. o 1981 constitutional conference – “gang of eight” opposes Trudeau plan for Canadian Constitution, with Charter of Rights  Trudeau proposes unilateral patriation o Trudeau proposes Ottawa goes alone to Great Britain to insert a charter and an amending formula o Quebec went to appeal and r