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Lecture 01 CRM2300Criminal Justice and Penal NormsRather than see the common law as a fixed body of rules and regulations it is preferable to view it as a living tradition of dispute resolutionSince law is a social practice and society is in a constant state of agitated movement law is always an organic and handson practice that is never the complete and finished articleIt is always situated inside and within not outside and beyond the society in which it arisesThe common law is a workinprogress it is messy episodic experimental diverse uncoordinated untidy exercise in human judgment Is Eating People Wrong pp 9 11Working classmiddle class strife against upperclassCriminal law is societys way of determining morality not just about moral disputes politics of the day necessary to understand how the system works the reforms madeVictims rights as a question of fairness and equityDemonstrates how the law works in terms of rules exceptions morality constitutional questions politics and how the people respond to the state basis of democracyLecture 02 CRM2300Common Law and Liberal DemocracyThe Canadian Criminal Justice System is rooted in Europes Criminal Justice System that was used in the 11001800sTwo competing models of law in Europe the Civil Law and the Common LawThe idea of the civil law system is that before anything happens you sit down and come up with some rules and you put them in a codeThe civil law system is based on a code of 8 priori principles this means that you think of them first before you apply them the idea of this rule is that they apply to anything that happens after that and in all future eventualities1 Common LawDeveloped in England has a very different approach to law common law system has historical content started after the Norman ConquestThe Norman Conquest is Normandy in the WWII they came from Germany invaded and took over Englandthe Normans wonBefore the Norman Conquest England was a bunch of independent principalities and kingdoms each ruled over small territoriesThe Normans came and wanted to assert control over the Island and made sure that the little territories acknowledge the power of the central state that they are the central authority of the stateKey PointsCriminal Justice System legitimizes states monopoly over use of forceCJS negotiates help with citizen and stateStates authority rests on its monopoly over the use of forceeach state rests on this the state authority in Canada is the only one that is allowed to use violence against its citizen legally As long as the state can stay in power it maintains power through the monopoly of the use of force through two primary actors1Army2Police Force most important oneAs long as the state can maintain its monopoly over the use of force it stays in powerExample In Syria the Prime Minister Assad is using force because he has the most force to bomb his people for rebelling against his authority so by bombing them he is seeking to reinforce his authority by using monopoly of the use of forceLegitimizing the state authority Not only is the state allowed monopolizing the use of force people are forced to accept the fact that the state has the ability to do soThe problem is that if the negotiation of the use of force is lost domestically Assad losesUnless people are willing to accept that the state legitimately has the authority to do so people will not accept that use of force thus they go about trying to create it legitimately through negotiation eg the Taliban negotiating with the Allied Forces of the USIn the context of the common law Norman ConquestThe king is trying to assert his authority over the control of the state by sending out itinerant judges they are just roaming around they go around and resolve all the disputes see readings on Itinerant judgesContinentNapoleonic CodeCivilian EnglandCommon Law system Common law is not the cannon law system as the common law is developed and the judges roam around trying to settle disputes they are trying to pull authority away from other competing authority eg the Church its an ongoing negotiation where you have competing claimsone of the things the state has to do is to delegitimate some of these claimsHOGUES definition of Common Law Defines common law as independently imbedded in the states authority and has to do with our collective identity as a Nation State The common law is not local and it underlines that the criminal justice system in particular exists to consolidate the kings power and claiming legitimacy over competing clans this historical background leads to the English Common Law system and they deal with individual disputes which lead to decisionsthese itinerant judges work to resolve issues leading to the definitions of crimes and remedies that grow on a casebycase basisIn Europe they do the opposite but common law develops in the opposite waysindividual dispute comes up when they do eg the law in Canada around bigamy hasnt yet been enforcedThat sum of rules plus this process of lawmaking is the Common LawThese are discursive human decisionmaking but the bedrock of the common law is the way we make these rules on an adhoc basismeaning for this generally signifying a solution designed for a specific problem or task nongeneralizable and not intended to be able to be adapted to other purposes ie organizations designed for specific purposes and anything that falls out of those purposes are not accountedThe Common Law is defined1As a body of general rules 2That prescribe social conduct thou shall not kill commit adultery etc 3That are enforced by ordinary courts4And the rules that are enforced are developed by these courts in actual legal cases and 5This process is conducted in accordance with a defined set of procedural rules due processthe legal requirement that the state must respect all of the legal rights that are owed to a person balances the power of law of the land and protects the individual person from it if a government harms a person without following the exact course of the law this constitutes a dueprocess violation which offends against the rule of lawSee Hutchinsons readings In order for the Kings justice to be done and his power to be consolidated as common law developed there was a propensity to apply the same rulesYou do that because you want certaintyFor the citizens to rely on the law avoid being or looking arbitraryTreat different individuals with equality and be efficient you apply these rules in the way that it will look importantAs common law develops theres importance of certainty because it legitimizes the authorityDoctrine of Precedence As common law develops the doctrine of precedence grew it says that if you are deciding a future case when you are resolving disputes look back to past decisions and apply the rules you developed in the past and at the same time use the current case to develop rules to apply in the future eg if theres nonconsensual touching thats the crime of assault and one needs to be punished for thateach case becomes a precedent that you apply to the nextEach province has its own court system3 Levels of Court1Provincial Courts small claims court Judges make a bunch of rules and decisions2Superior Court above provincial courts Reserved for more serious cases3Appeal Court Can decide and review whats been done in Provincial courts and Supreme Court of CanadaEach court can develop its own rules Doctrine of Stare DecisisLower courts are bound by the decisions of higher courts
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