LAW 122 Midterm: LAW 122 Midterm Notes
17 May 2018
School
Department
Course
Professor
Chapter 1
The Nature of Law
Set of principles and rules that courts will enforce
Way of thinking / reasoning about these principles.
Law is bound up in the reasoning, = why and how the courts
made the decision.
Law
Ethics & Morality
Formally sanctioned
Courts Handle
Minimum standard, which reflects on
society’s values.
Informally sanctioned
Individual’s discretion, judged by peers
Guidelines and rules created by society in our
daily lives.
Courts do not enforce the breaking of ethical
guidelines / moral principles unless an
individual breaks the law.
Law does not impose obligation but,
Left to morality, let the individual choose whether to help or not
The law does not ask anyone to put themselves in danger to save another person.
Ethical Reasoning
Focus on WHY something is ethically right or wrong, and not just whether it is right or wrong
1. CONSEQUENCES:
- The greatest good for the greatest number
2. JUSTICE & FAIRNESS:
- Give people their just desserts, pay your debts, maintain a level playing field
3. RIGHTS & DUTIES
- Respect rights and perform your duties
4. CHARACTER & VIRTUE:
- What kind of people do we want to be?
Civil Law
Common Law
Set of codes (Rule of law)
Originated in ancient Rome
Laws created by the government (statutes,
acts, legislation) + common law created by the
courts
Judge made laws (dispute based)
Some laws are te same across Canada, ex.
Federal/Criminal Law
Public Law
Private Law
Life in the public square
Governs our relationship with the government
and with society as a whole
Ex.
- Constitutional Law
- Tax
- Criminal Law
Private lives
Governs matters of private concern and the
relationship with other private individuals
Ex.
- Tort
- Contract Law
- Property Law
The Constitution
Provides basic rules for society, including our legal and political
systems
Highest source of law
- Any law inconsistent with Constitution; no force or effect
Difficult to Amend
- Requires consent of both Parliament and Legislatures of
two-thirds of all provinces with at least 50% of population.
Legislation
Laws created by the Parliament or Legislature
Courts
Interpret & Apply constitution
Interpret & apply legislation
Create & apply “common law” (judge made law)
Federal Government
Provincial Government
Crime, bankruptcy, copyright
Given powers / jurisdictions that only the
federal government can practice:
- Military, national defence
- Money, banking
- Foreign Affairs
- Aboriginals
Property, civil rights
- Real Estate
- Property rights
- Health Care
- Education
- Civil Rights
- Municipality.
When a government legislates outside its authority, the law is ULTRA VIRES (Beyond the power of) and the
law has no force or effect
Charter of Rights and Freedoms
Constitution 1982
Commonly affecting business:
- Freedom of religion
- Freedom of expression
- Freedom of mobility
- Right to equality: prohibited ground of discrimination
include race, sex and religion but not poverty
The charter only protects individuals against the government
and not private sectors. Therefore if an individual does not get a
job due to ethnicity / religion, this does not mean the charter
has been broken.
Companies beside people have the right to expression according
to the charter
Companies will challenge the government to get their right to
advertise under the freedom of expression charter.
Limitations on the Charter of Rights
Charter only applies to government actions
- Not (directly) applicable against private businesses
Charter may apply in favour of private business
- But some provisions only protect “individuals”
Charter rights subject to “reasonable limitations”
- Balances individual rights and community interest
- Government have the right to change laws, they can infringe
our rights and freedoms if reasonable. Reasonable
infringement and justifiable.
Charter subject to “notwithstanding clause”
- Government can override some rights and freedoms
- Very rarely used
- Government can infringe anything and it doesn't have to be
justifiable.
- Law is voided every 5 years.
Document Summary
Set of principles and rules that courts will enforce. Way of thinking / reasoning about these principles. Law is bound up in the reasoning, = why and how the courts made the decision. Minimum standard, which reflects on society"s values. Guidelines and rules created by society in our daily lives. Courts do not enforce the breaking of ethical guidelines / moral principles unless an individual breaks the law. Left to morality, let the individual choose whether to help or not. The law does not ask anyone to put themselves in danger to save another person. Focus on why something is ethically right or wrong, and not just whether it is right or wrong: consequences: The greatest good for the greatest number: justice & fairness: Give people their just desserts, pay your debts, maintain a level playing field: rights & duties. Respect rights and perform your duties: character & virtue:
