POLS 3651/ MIST 3651
September 16, 2013
Lecture 2 Week 2
Introduction: Law and Racism
Canada’s Legal System:
1) What is law and what is the purpose of law?
Law is written and declares rules that attempt to govern our behavior. In other words, as a Canadian citizen,
when we accept that citizenship either by birth or by choice then you agree to follow the rules and regulations of
that state. If you misbehave in terms of those laws and regulations then it won’t be tolerated…why? Because it
is the law.
If you follow the law, you have security.
It is in your interest and the interest of the state to follow the law.
The question of Legitimacy. When we obey the law, in doing so, we are legitimizing those in power to rule.
This is not just a oneway relationship because those who are making the law are also in a legitimate position to
make the law. So by obeying the law, we are producing and reproducing the legitimizing the state to rule over
us. Those in the business of law making whether in the parliament or in the Supreme Court of Canada use their
legitimate position to make the law.
2) Sources of Law: Formal and Informal
▯Legislative Supremacy Vs. Judicial Supremacy – Who is supreme in Canada?
▯ Canadian Constitution of 1982 – is a combination act of the BNA act of 1867, Amendment Formulas, and
Constitution of England
▯Laws created by parliamentarian. These are the ones on a regular basis that make laws (Statute laws).
▯Case Law – Created by Judges (Supreme Court Judges) Any laws that are passed by these judges is
▯Magna Carta of 1297 (Great paper of liberties)
▯Roman Law which was practiced up until the 18 century.
▯Cannon Law (?) – Laws and regulations of the church.
▯Tendency to dwell on the writings of legal scholars.
▯Primary and Subordinate legislations (Laws made by provincial government, cities, etc.)
3) Our legal system: Common law vs. Civil Law
Common law is practiced everywhere in Canada except in Quebec. In Quebec, they practice Civil Law.
What is the difference between common law and Civil Law?
▯ Civil law is coded law. When it is coded it is not like common law in which judges find law. Civil Law, is where judges apply the law.
▯Common law, the judges are responsible for finding new laws.
Which system is more important in the world?
▯Civil law is more practiced in the world. Common law is only practiced in in North America and some other
4) Public law vs. Private Law
▯ Public law regulates the relationship between the person and the state. Public law is divided into three
Constitutional Law: Governs basic laws of the nation
Criminal Law: When you commit a crime against the state, then you become the subject of criminal law.
(Criminal Code of Canada)
▯Private law regulates the relationships between private entities (Firms vs Firms, Individuals Vs. Individuals)
I.E: Car Accident: You can sue the other driver for monetary damages. Private law is divded into three branches:
Tort Laws: Damages
Property Law: Governs ownership of real estate
5) Important Legal Terms and Concepts
Legal Persons: A legal person in Canada include People, Corporations and Governments.
Negative Rights: Are those rights that protect you from the state (Civil and Political Rights)
Positive Rights: Are those rights that require state intervention to protect you. (SocioEconomic Rights) I.E:
Minimum Wage, Health Care, Welfare, and Education.
▯The argument is that in the era of globalization and the era of the new liberal estate, the states are withdrawing
form the realm of socioeconomic and transforming civil and political rights partically after 9/11. Both negative
and positive rights are under attack by the new liberal estate.
Negatives Laws: You are prohibited from doing (I.E: Murder)
Positive Laws: Positive incentives to change behavior by the state (I.E: Tax Deduction for do