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CRM23001The common law is discursiveProblem solving through text and talkThe law is made up of series of stories that problems have been happened in the pastWere going to for a structured process where everybody will discuss their side of the storyWhen we look at this body of lawthe record of these stories its a collection of social problemWhen we look at these laws it gives us a window onto our values in the society Its al about morality good right and values As we work through them we articulate describe and talk about what the society means to us2 A historical creationOur decision is open to argumentOur starting point is that there are 2 sides to a story and each person has to the right to say their own right of the story Were going to fight about it and figure whos right EXAMnot going to ask what is law going to make an argument3 Steeped in liberal principles that define relationship between citizen and state through due processAll conflict relates to context 6 liberal principlesIN THE COURSE PACK summary of each page1066 Norman Conguestthe point of this is that the king now controls that category After this the king who wants to be the king of England has to find a way to assert control over territory and legitimizing the Kings authority All the kings send out itinerant traveling judges These judges go out to all different parts of the island Then resolute disputes by dispensing kings justice The key point is to say that we defeated you and we are now the government In order to organize it and made it easier for these judges to formulate the lawsdoctrine of precedence In order to be fair there has to be a certain amount of certainty Also when developing a body of law it cant be arbitrary because if it is people wont buy it The doctrine of precedence is a process where you decide disputes by referring to decisions you made in the past where the dispute is similar and you use each case to develop case rules to apply to similar cases in the future Over a particulate time it was felt that there has to be some way of organizing it So they developed the doctrine of stare desisissays that lower courts are bound by decisions of higher courts John henry Want needs to get the boat down to Australia He hires a guy called Dudley to bring the boat and he hires 3 people Stephenson mate Brooks able seaman and Parker cabin boy On its way to Sidney the boat sinks All 4 of the people on board the other things they have on the life boat is 2 tins of turnip no water Day 4 they catch a turtle By day 8 they become desperate and drink their own pee They dont do anything about it Day 14 Parker gets sick The others dont do anything about it till day 19 Practically dead so they want to do it and eat him They put in a vote Dudley and Stephenson agree but not brooks The 2 kill him but all 3 eat him 5 days later on day 24 they are rescued They made no effort to hide that they killed one of them Dudley kept some bones to bring back to England Dudley and Stephenson are charged with murder They agreed that they called but they think they did cause they had to Defense of necessity The court decides that in certain circumstance you do break the law but with a good reason If you dont do it something bad will happen right away necessityclearimminent peril danger is about to happenno legal alternative availableThe criminal isnt looking at the practically of it it is looking at the morality of it It is wrong to eat people its badimmortal They murdered him theres some blame on them because you dont kill people its wrong Although there is a defense of necessity their decision is to convict them The press if we allow them to get away with this then what is going to stop the minors in the factors etc to do this Once they were convicted all hell broke loose There was more violence because of this particular decision They were in jail for a period of time but they werent hung commute to 6 monthsBecause were trying to result things based on stories it is important to see the common law as a fixed body of rules and regulations it is preferable to view it as a living tradition of dispute resolution Because law is a special practice and society is in a constant state of agitated movement law is always an organic and handson practice that is never the complete or finished article it is always situated inside and within not outside and beyond the society in which it arises In CanadaPrivilege lawproperty rights marriageQuebeccivil lawrest of Canadacommon lawPublic matterConstitutionalCriminal law relp citizen and stateCommon lawoThe common law has never been put in codeoIn 1890scodifying the criminal law put in booko1892criminal code of Canada collection of criminal rulesoIt defines what murder isoUp to 1955 judges can still create new crimes and defenses In that time judges sat down and revised that criminal code Judges can no longer create new crimes on exception of contempt of court Judges however can still create new defenses oLegal reasoningeven though we have a criminal code the common law remains flexible oTheres a flexibility in the common law becauseNew defensesTest chartsDistinguish a case on its factsOverturn their previous decisions ASSIGNMENTThe common law is1Discursive2Historical 3Steeped in liberal principles that define the relationship between the citizens through the principles of due processliberism focuses on individualsIts the way the system thinks about the criminal justice 6 principles1Society is made up of individualsit is a collectionaggregate of individualsVery clearly defined roles where you are born to and stay thereIndividuals should be able to change their own livesEach individual is uniqueGroups shouldnt be treated differently gaysThey are individuals who are rational2Rational individuals weight the costs and benefits of their action and only act when the costs out weight the benefitsIf you break in my house and get caught the benefit is that you get the money and the stuff you stole Drunk drivingdriving to court drunk Rational decision Theres an impulse and addiction 3Individuals and society agree to obey the law to protect themselves from transgressors because its rational to do soIf I live in a society where I can break in a house and take a tv they can break in my house and take it back I will give up a little of my freedom but in exchange you will protect me from transgressorsIf I weight the costs and benefit I will end up with more freedom in the long run4Role of law Criminal justice system is to maximize individual freedomWhole point of cjs is protection5When the cjs punishes the transgressors it takes away the T liberty or propertyIt creates a problem for us because the whole point of the law is to maximize the freedom6Because individual freedom is so important the cjs should only punish individuals who made a rational decision to act blameworthinessEx when somebody doesnt necessarily mean to do somethingan accidentThe criminal law is all about constraining the power of the state The only group within society that can break in my house and drag me to prison The cjs is designed to contrain1 Executive power state government cops armyEspecially governments use of violenceRule of law everyone individual gvmt has to obey the same rules2 Judicial power
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