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Law Exam notes.doc

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Department
Law
Course
LAWS 1000
Professor
Betina Kuzmarov
Semester
Fall

Description
Introduction to Law Lecture 2 Notes What is law? Law can’t be defined to a pin point but however it can be what ever we want it to be. Legal positivism Is the thesis that the existence and content of law depends on social facts and not on its merits Types of law: • Common law • Criminal • Family • National • Civil • Corporate • International • Legislative • Constitutional • Torte • By laws • Environmental • Intellectual • Trade • Maritime law • Labor • Positive law • Native • Procedural • Banking and insurance What is taxonomy? • classification : When it comes to Law it’s Characterizing law into groups • Classifying law • Classifying legal problems into categories • Tell your story and explain your problem (client) • Make sense of the problem (lawyer) • Lawyer will research that certain problem - FORMALISM Is Taxonomy Neutral Yes it is because it helps us to • Categorizing things into classification can have some problems • Applying same fact and pattern • Helps make sense of how to approach a problem Legal system: Legal Systems Are Comprised Of • Legal Institutions • Procedures • Rules Types of law: Substantive Law The part of the law that creates, defines, and regulates the rights, duties, and powers of parties Procedural Law 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 • The rules of how the law will operate • How your rights, duties will be enforced Public Law • Structures government • Relationship between individual and government • Areas of Law covered: Constitutional Law, Administrative Law, Criminal Law Note: • The way that law relates to the problem involved • Rights and law of obligations • The way the apparatus of the government • Action considered to be harmful to the society Private Law • Rules for relationships involving individuals • Areas of Law covered: Torts, Contract, Property, Wills, Estates, Family Law Note: • About the disputes that they have towards each other • Tortes -- Harm to someone else/ property • Property – owing the product of your mind and ideas Civil Law • Civil or Private Rights Note: • Private matter is a civil law Criminal Law • Offences against community Statutory Law • legislation (also called Statutes) Notes: • Anything passed by the gov • Federal laws can be passed by provincial laws and vice versa in some cases • Each gov has the power to pass their own rules Common Law • Case law • precedent Note: • Case law given a lot of importance - Case law n precedent is a way to make law – draw general principles Notes Lecture 3 Source of law • Something that provides authority for legislation n for judicial decisions; point of origin for law or legal analysis Consists of : criminal code ; constitution ; charter rights and freedoms H.L.A. 2 meaning of the term source of law • Non-legal: the law is a historical • Legal: the law is considered a law within the given legal system Transplantation / Reception • “The moving of a rule or system of law from one country to another” • Reception : A country accepting those rules or system of law Instances of transplantation • Colonialism – whereby imperial laws are imported and enacted in areas being colonized • Globalization – international norms of law Comparative law -- the S.A. law would look at the Canadian constitution as a method of making their law • Informal reception – operate according to general rules (lead person runs the colony to their wishes) • Formal reception – all the rules of that date from the England are now operational in the colony Source of Law Common Law - evolve through decisions of judges – rules put into place through cases • Custom • Writs/Equity – 1875 [ HABEUS CORPUS ; VERSUS ; EXAMPLE OF EQUITY’; MORTGAGE ] • Shift to Statute Civil Law - Evolved from Roman Law - Written Code - Code Napoleon 1789 - Precedent less stressed - law not as important as previous law like the common law International Law 1. Dualism v. Monism 2. Treaties: ratification and incorporation – binding as soon the state signs the treaty, becomes law right away - president cant sign the treaty til majority of senate agrees - in Canada we have to pass a law to incorporate it - each of the provinces have to pass the law or the federal gov in order to be binded - judges have a huge role in this 3. Custom: Civil Law/ Statue must conform – rules have developed over time cuz it has been practiced over time -- customary international must be binding with our laws Lecture 4 Constitution What is Constitution : • An established law or custom • The act of establishing, making, or setting up Constitution of Canada • The charter is part of the constitution act of 1982 • 1867 constitution act  Canada shall in principle have the same constitutional principles as UK • Unwritten principles Constitution Bases 3 bases A. Rule of Law B. Parliamentary Sovereignty and Responsible Government C. Judicial Independence • Rules of Law : Nobody is above the law  leaders cant use immunity Notes • Law act as a limit on government • Nobody is above the law • Only way to protect people from the gov. is to give them individual rights • Rule of reason • Do what’s better for the majority over the minority • Law has no emotion • Law is rigid • There is no form of biasness • Rules are there to prevent arbitrary power • Parliamentary Sovereignty & responsible government : Sovereignty:  A designated authority that excurses a political control that we call the state  State has absolute control of a treaty and has the right  Everyone must be treated equally before the law; no favors should be given What is Parliamentary sovereignty? • Parliament can do what ever it wants  make or unmake laws • PM and cabinets • We have the right to contest and fight law  judicial review • PM and cabinets have to respond to the parliament for any decisions  responsible gov • Judicial Independence  Have to exercises the power of the  Judges make sure that the parliament does not use the rule of power Five fundamental principles underlying constitution: • Federalism –- There is a division between level of Gov • Democracy --- The idea that individuals have rights to contribute in the Gov • Constitutionalism –- Is the limit by the constitutional limits • Rule of Law --- Power of government is bound by law n constitution • Protection of Minorities --- Parliament is responsible to us Federalism: Constitution Act, 1867  S.91 ---- Federal power  S.92 ----- Provincial power  POGG ----- Peace Order & Good Government • Each level of government gets its own power from the constitution • The separation of each level is due so that each government should have its own exclusive power • However if any problem is unclear , it is always under the decision of the Federal power The Charter  Constitution Act 1982 • In order to amend the constitution u had to go to the Queen • Notwithstanding clause  S 7-15 can pass the legislation for 5yrs (can violate the constitution) • S. 1  Any right on the charter can be limited  Rights aren’t absolute Lecture 5 Lawmaking process 3 Types of Lawmaking: Legislative  Administrative  Judicial A. Legislative Six Stages in the legislative process: • Instigation and publicizing - Somebody somewhere needs somebody to have an interest in the bill? • Information gathering • Formulation - Takes place in the gov – what is the problem and then needs to be formulated • Interests-aggregation • Mobilization - Debate that legislation • Modification - Can be modified, replaced, or can die because there’s no support for legislation * Proposal from the ministry  Anything that has to do with $ has to go through the House of Commons through a minister • Leader of the cabinet has to approve the bill that was proposed to him/her • They’ll read it to the parliamentary record  Bill read in depth (committee…)  Approved at second reading then goes to 3 • Need the signature of the gov. general • Specific date, gov. general signing, or someday in the future (making it law) • Private committee doesn’t have to go through * Need to think about constitutional and societal ideas B. Administrative Law making • The government bring in experts to examine certain laws that they can’t pass due to the fact that they don’t acquire the full knowledge • Thus there are multiple stages of bodies to take a look at these issues ii. Administrative Adjudication - More flexible - No precedent - Enforcement of legislative • They enforce a legislation, other forms of law making – look at issues that weren’t paid attention to • They respond to minister who looks over it • Bodies cant operate outside the powers giving to them – individuals can challenge that action for being outside those • Judicial reviews – judges can review reasoning by fairness -- Procedures closer to court the less likely it is to say no -- How they interpret the law C. Judicial Lawmaking - this where the Judges make law - the prime minister appoints judges the doctrine of stare decisis : to stand by what has been decided  Following a precedent – follow the decisions in which the facts of those law were applied - the judges can’t make as much laws as they think they can - In 1982 – judges can review laws if it is constitutional - 2 arguments  should judges make law?  Interpret aw or review if a law is constitutional - if this is the case judges have more power Influence on Law There are six influences: A. Interest groups B. Public opinion C. Scholarship D. Social movements E. Media Interest Groups: - Law responds to specific interest conflict views of society - Not all groups are equally successful - There people are advocates and involved Ex. Cancer research - These people are usually wealthy people who have the ability to persuade the public and the citizens - This occurs because they have the time , money and people/ energy - Lobbyist: professional paid people who advocate for their clients on an issue Public Opinion - We matter because politicians need our votes - A politician can see a poll and act upon that - Group as society have an influence Scholarship - The way the courts use academic info to help influence the policy Social movement - Collective behavior - Promotes change - Public influence - Protest * All these have an influence on legislation Media - Provide information and act as opinion planners - Chose what is important then put it on the news Lecture 6 What is Parliamentary Sovereignty? - AV Dicey  Parliament has ‘…the right to make or unmake any law what so ever . . . and . . . no person or body is recognized by the Law of England as having the right to override Internal Challenges - Federalism  Cannot make laws in areas of the prov
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