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Exam Review - Terms and Concepts Lectures 1 through 5.doc

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LAWS 1000
Betina Kuzmarov

• State? o the state subordinated to law • Dispute Resolution? o lawsuits (litigation) o arbitration  technique for dispute resolution where a third party (the arbiter) reviews the evidence in the case and imposes a decision that is legally binding and enforceable for both sides. o Mediation  any instance in which a third party helps others negotiate an agreement to resolve the dispute  The mediator acts as a neutral third party and facilitates rather than directs the process. o Conciliation  the parties to a dispute meet with the conciliator separately in an attempt to resolve their differences  it has no legal standing (enforceability). o Negotiation  Can happen both within litigation as well as outside. • Social Control? Social Change? o The processes that regulate individual and group behavior. o Can be both in forms of law and outside of law (customs and norms) • Coercion? o Forcing a party to do something involuntarily. • Legal positivism o existence and content of law depends on social facts and not on its merits, not substantive justice of the law. o The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist… o What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. o John Austin (1790-1859) • Taxonomy: o the study of the general principles of scientific classification o the establishment of categories for legal principles. The ways in which law is organized. • Formalism: o is a legal positivist view in philosophy of law and jurisprudence o the ruling theory of interpretation o that legal taxonomy and interpretation comprises the largely impersonal and determinate exercise of practical rationality o interpretation and organization of law is, can, and should be performed in an apolitical manner o formalism does not (as positivism does) suggest that the substantive justice of a law is irrelevant, but rather, that in a democracy, that is a question for the legislature to address, not the Judge. o judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. • Substantive Law: o The part of the law that creates, defines, and regulates the rights, duties, and powers of parties. o Example: S. 222 of the Criminal Code (Homicide) • Procedural law: o The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves. o Example: S. 675 of the Criminal Code (Right of Appeal of Person Convicted) • Public Law: o Structures government o Relationship between individual and government o Areas of Law covered: Constitutional Law, Administrative Law, Criminal Law • Private Law: o Rules for relationships involving individuals o Areas of Law covered: Torts, Contract, Property, Wills, Estates, Family Law • Civil Law: o Civil or Private Rights • Criminal Law: o Offences against the Community • Statutory Law: o Legislation (statutes). Bill C-26 • Common Law: o Case law, Precedent • Sources of law: o constitution, treaty, statute, or custom o provides authority for legislation and for judicial decisions o a point of origin for law or legal analysis. o Non-legal: The law is a historical fact o Legal: The law is considered a law within the given legal system • Sources of Law in Canada between aboriginal peoples and the Canadian government: o Treaties, Royal Proclamation of 1763, Constitution Act, 1867, “Indian Act”, Constitution Act, 1982, s. 25, s. 35 • Sources of Law in Canada: o Common Law:  Custom, Writs/Equity – 1875 (habeas corpus/mortgage), Statutes  Common law of England before reception, Common law of England after this date is persuasive, Canadian common law after reception, English legislation before reception, Imperial statutes up to the Statute of Westminster, 1931, Federal statutes, Provincial statutes, Canadian Constitution ,1867, Canadian Constitution, 1982 and other constitutional documents. o Civil Law:  Evolved from Roman Law, Written Code, Code Napoleon, 1789  Quebec Act, 1774, Constitution Act, 1867, Civil Code of Lower Canada, 1866, Civil Code o International law:  Treaties: Ratification and Incorporation (Canada EU treaty, NAFTA) • Legal Transplantation: o The moving of a rule or a system of law from one country to another o Example: EU law. o This occurs through: Colonization, Globalization, and Comparative Law • Reception: o The process of formal transplantation of law o The process whereby legal phenomena which were developed in a given environment are consciously exported to another environment • Monism: o international law does not need to be translated into national law. The very act of ratifying an international treaty immediately incorporates the law into national law; and customary international law is treated as part of national law as well
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