A. Definition of terms
1. Four models of lawmaking:
Rationalistic proposes that laws (criminal law) are created as
rational means of protecting the members of society from social
harm. Crimes are considered socially injurious.
Most simplistic and widely accepted theory.
Based on value judgments, preferences & other considerations.
Functionalist – concerns mainly with how laws emerge.
Laws are a special kind of “reinstitutionalized custom”,
lawmaking is the restatement of some customs so that they can be
enforced by legal institutions.
Laws are passed because they can be enforced by legal institutions.
Conflict Perspective – values diversity, unequal access to
economic goods, and the resulting structural cleavages of a society
as the basic determinant of laws.
Argue that the interest groups more closely tied to the interests of
the elite group would probably win the conflict.
Moral Entrepreneur Theory – attributes the precipitation of key
events to the presence of an enterprising individual/group.
E.g. law prohibiting mixedrace marriages – as a project creating a
white settler colony with political power in the hands of white
1876 Indian Act – employed to govern marriage and sexual
relations between white settlers and First Nation ppl.
White Women’s labor law – protecting white womanhood
and keeping the races pure from Oriental
(Japanese/Chinese men) in Saskatchewan.
The passing of the law may symbolize the supremacy of the groups
that support it.
The creation of a law is a statement that some illegal behavior is
2. 3 stages of legal policy:
Cabinet Stage – policy originating from Throne Speech, the
Budget, International/Federal/Provincial agreements, Ministerial
Sponsoring departments prepare Memorandum ▯Memorandum
seeks approval & authorization for Department of Justice to begin
drafting legislation ▯sponsor department hosts an
interdepartmental consultation ▯Memorandum is revised ▯
submitted to appropriate Cabinet policy committee to be reviewed
and prepare report ▯Cabinet approves Memorandum, legislative
drafters of Dept. of Justice prepare a bill in English & French ▯bill
is reviewed & approved by sponsoring minister & Govt. House
Leader ▯Govt. House Leader seeks authority from Cabinet to 2
approve the bill for introduction in Parliament ▯Bills introduced in
House of Commons ▯Appears on the Notice Paper & Order Paper,
wait for introduction by appropriate minister – no notice is
required for bill in Senate
Intro & First reading – assigned number ▯Second reading –
debated ▯committee consideration ▯report stage – the bill is
considered by the House, further amendments can be
proposed/debated ▯3 reading – debated final time ▯Passage &
Royal Assenrd– if its originated in the House of Commons and
passed at 3 reading, it is sent to the Senate;
if its originated in Senate and has been passed by both chambers,
it’s presented for Royal Assent.
Coming into Force Stage
A bill becomes an Act when it receives Royal Assent, but
legislation is not automatically in effect.
Laws come into force in several ways – receives Royal Assent, on
a day/days specified in the Act, or on a day/days set by the
Governor in Council.
3. Differences between Classical Liberal Theories:
Hobbes – Human beings are inclined towards disorder, rivalry,
discord and chaos.
Social Contract – all individuals cede their natural rights for the
sake of protection
Order & civility are the effect of subjection to the sovereign.
The sovereign is not subject to legal limitation
o Creator of the law can’t be limited by the law (can be altered
by their will).
o Rejected separation of powers – would only generate
conflict within the divided sovereign handicapping its
ability to preserve social order.
Locke – Humans are guided by reason & governed by natural laws
(reflection of moral order).
Must not harm others in their enjoyment of health, liberty and
Free to pursue our own vision of the good.
Govt. to serve the people – limited delegation of power, for limited
purposes, revocable if govt. failed to meet its obligations.
“Wherever law ends, tyranny begins”
Separation of powers between the legislature and the executive –
no independent judiciary/process of judicial review.
Legislation is established by majority votes (only property holders)
Emphasis on the consensual nature of govt.
Montesquieu – Liberty is NOT the right of doing what one
pleases, rather it’s a right of doing whatever the law permits. 3
Liberty exists only if ppl are free from tyranny, to prevent tyranny
(abuse of power, arbitrary control, etc) power should be a check to
Separation of institutional powers:
o Independent judiciary – the point of most direct confrontation
between govt, law and individual
o Serve as a best barrier against lawyer govt actions.
o Judiciary: the preserve of rule of law
o Judges & juries should be drawn from the ppl to sit for a
o Ensured a complementary connection between culture & the
4. Dispute Categories:
Private Disputes – Initiated by private parties against other private
PublicInitiated dispute – Initiated by the government against a
Public defendant – Initiated by a private party against the
e.g. publicinitiated dispute with a public defendant – between
federal and provincial governments.
5. Key Tenets of Legal Liberalism:
Rule of Law – Government should be bound by known principles
of law without distinction in their applications to particular
Legal reasoning should be sharply distinguished from moral &
political deliberation & choice.
Fair, impartial application of law and justice.
Formalism – Legal rules form a consistent and complete whole
from which the answer to any legal question can be logically
deduced simply by discovering the applicable rule & applying it to
the facts of the case.
Judicial reasoning can yield determinate legal results.
Internally coherent/logical, can be understood and predicted,
abides by its own universal system.
Neutrality – Legal principles & law are not based on any
particular group’s conception of “moral” or “good”.
Culturally neutral, universally recognized as true
Abstraction – Law should operate at a high level of abstraction
that excludes consideration of the social context.
Fair because it’s not attached to/have allegiance to a particular
culture/set of norms – form not content. 4
Individual Rights/Freedom – Classical liberal theories focus on
the appropriate role of law & government in the lives of citizens.
Focus on individual freedom as the desirable outcome of a system
Individuality & Freedom/liberty.
Facilitate the security & satisfaction of its citizens – minimal
6. What is judicial activism?
This is philosophy of judicial decision making whereby judges
allow their personal views about public policy, among other
factors, to guide their decisions. Adherents of this philosophy tend
to find constitutional violations and are willing to ignore
precedents. Essentially this is an excuse for judges to change the
law and curb instances and factors to their personal philosophy.
Activism also suggests that judges have the last word, meaning
that if the judge is bestowed the impartial decision based on
evidence than it shouldn’t be bad
It can be good in the sense that judges administer the law in a way
they see fit in a peculiar situation
7. What are the types of alternative dispute resolutions ( ADR) available in
8. What is the difference between substantitive vs. formal equality?
Formal Equality: This is a belief under the federalist’s paper
modern rule of law. This equality suggests that people are allequal
and should be treated the same regardless of their different
circumstances and characteristics.
Substantive Equality: Equality requires treating people differently
to account for the inequality of their situations, thus forcing
peoples circumstances to be taken more seriously.
Classical legal thought: equality must have some sort of meaning
behind it, groups need to have specific qualities in order to receive
certain equality. (ex. Minority groups)
9. What is litigation and why has there been an increase?
The process of taking legal action
Canada surpasses the U.S in level of regulations imposed through
the law 5
Litigation accelerated since the advent of the charter of rights and
Increase in supply of lawyers can increase demand for legal
More lawyers = more litigation
Litigation is good because it can introduce progressive reforms and
remove regulations that interfere with justice
Litigation can also get out of control
Three factors that explain litigation:
Social development (increased complexity, reliance on
Subjective cost benefit calculations on part of disputants
Legislatures and courts have created more legally actionable
rights and remedies
10. How do courts contribute to dispute settlements?
Provide guarantees of compliance ( ex. Divorce)
Opportunity to learn about each other’s cases as mediators
Resolve certain issues
Authoritatively resolsves disputes
• Financial risk is perhaps largest deterrent. In Canada,
defendant recovers cost*
11. What are the requirements for a dispute to reach courts (Justicability vs.
Justicability refers to the fact that claims must be triable in the
courts in questions. This specifically refers to the idea that there are
specific courts responsible for certain types of legal issues.
Significance behind justicability is that it suggests that
there is a specific type of court or location of resolution
that combats specific legal issues.
Also suggests that some courts do not have the jurisdiction
of dealing with particular types of cases, suggesting that
some cases must be addressed and dealt with at a different
E.g. Family courts are competent to hear cases on child
custody, support payments, adoption etc. but not on murder 6
Standing a plaintiff’s ability to demonstrate to the court the
sufficient connection between their legal issue and how it harms
their rights as a member to society
Only a person with standing are allowed to bring a dispute
Plaintiff must have a “ genuine interest” in the matter
before the courts
Party has to demonstrate to the court sufficient connection
to the issue and show harm
Considered a form of dispute settlement in the sense that a
persons belief or standing would create a dispute necessary
to be brought to court for settlement
E.g . Belief that all school children should be excuse from
religious teachings, shows a genuine interest in the harm it
would cause to citizens if not fixed
12. Think about its critics aka: what are the key tenants of legal realism vs.
critical legal studies?
Legal Realism: legal reasoning is apolitical, neutral, determinant,
Politically progressive, identified with growing
administration, response to classical legal thought by young
Sought to base interpretation on reality
o Holmes was very skeptical of the model of law
being the application of rules
o We get fairly consistent decisions because we all
share basic ideological predispostions
o Law is a prediction of what courts will decide
Thought rules should be more specific and laws should be
interpreted in such a sense that they have a clear and
Judicial temperament, social class, values, and cultural
conditions influence laws.
Therefore it is impossible to predict laws final outcome
Proposed a functionalist approach to legal interpretation in
the sense that since law is not a set of ideal standards and is
instead a function of society.
Law should be used to promote human improvement
Law should evolve as society evolves
Law not a set of ideal standards but rather a function of law 7
Members of society had to recognize their responsibilities
to one another through social norms, peoples rights should
be respected in order to promote the common good.
Legal realists are committed to liberalism because they see
it as a tool for human improve and the improvement of legal
Instead of seeing law as determined by rules and principles
they see it as a social, historical and political context of
Critical Legal Scholars: A group united by the opposition to
intellectual and political dominance of the liberal establishment
Starts with a criticism of liberalism
• Influenced by Marxism, its roots are in legal
• Judicial decision making is heavily
conditioned and shaped by a pervasive ideology
( system of beliefs that appear natural)
• Assumes people are economiccallly and
• Assumes law is neutral
Believed that society focused too much on the
“individual” that it created a society of selfish
individuals and self interested elite groups taking
care of themselves only
• Suggestion that liberalism created dominant
Because society focuses on protecting these
dominant groups our society has been blinded in
regards of legal consciousness
Law is seen as politics, it neither operates as a
historical vacuum nor doesn’t exist independently or
ideologically in society. Law is not a sacred dictate
despite people treating it like that
Doctrines of jurisprudence are constantly being
reinvented because all of them are fiction
o These doctrines want to text the law and see
if it reflects beliefs, needs and values of
society. Therefore the law helps society
function in more of a revolution intention
o They believe that the idea of liberalism is a
lie because it presumes that people are
economically and socially independent, as ell
as liberalism assumes there is neutrality in
They find this to be a lie because individuals are not
autonomous: we live in one society not on different
They are skeptical and relative in terms of moral
truth and neutrality because they don’t see these as
possible aspects of society.
• Law is politics; not necessarily a good thing
REALISM VS. CRITICAL LEGAL STUDIES
CLS starts with a criticism of liberalism
o Liberalism assumes people are economically and socially independent
o Assumes neutrality
o CLS says this a lie
Legal realists are firmly committed to liberalism
o Law can be used as a tool for human improvement
o Equality through intuitional access
o Improve legal system by assisting lawyers and students to understand how the
law really works “ in practice”
Instead of seeing law as determined by rules and principles
o LR : legal doctrine as a façade masking the real source of law ( social and
o CLS : yes but this isn’t restricted to law – the indeterminancy is found in all
social practices ( eg. In the economoy, in government, and in labour markets)
o Need a multifaceted critique of society
Instead of sub ordinating factual judicial decisions to rules
o LR : sunordinate rules to facts
o CLS : good starting point, but facts aren’t objective ideologically biased
CLS a ths the rule – skepticism of legal realism to leftist policies
o Neutrality and objectivity are after the fact justifications of the status quo
Critical Legal Studies is skeptical and relativist
o Skeptical that there is any moral truth or neutral perspective from which we
could make valid legal rules
o Relativis because in a complex world were going to get radically inconsistent
schemes of value which cannot be resolved
Critical Legal Studies on law
o Social struggle is consistent
o Law is simply the tergletion of the prevailing social order at some particular times
o Traditional legal theory obscures underlying social struggles by trying to convince
us that the present social order is natural
o understanding underlying social realities and how they are reflected in law is
necessary before real social change can occur
CLS critique on rights 9
o No guarantee that a rights discourse works in favour of historically & social
o Dangerous to rely on rights claims in a judicial arena instead of a political one
o Diminishes their attention to other arenas of political action namely legislatures
and the streets
o Rights claims tend to be fought out legally on an individual level
o Reinforces individualism
o Rights based strategies (legal) tend to mask the underlying social conditions of
B. Essay Questions
1. Should “legal resolutions/dispute settlements” more accurately be described as
dispute process instead?
Law only settles the legal components of disputes – can’t resolve
underlying causes of conflicts
Two requirements for a dispute to reach courts:
i. Justiciability – the claim must be triable in the court
Family courts to hear cases on child custody, support
payments, adoptions, etc
ii. Standing – only persons with standing are allowed to bring
dispute to court.
A plaintiff must have a “genuine interest” in the matter before
Party has to demonstrate to the court sufficient connection to
the issue & also show harm.
Court contribute to dispute settlement by establishing norms, provide
guarantees of compliance, opportunity to learn about each other’s
cases, act as mediator, resolve certain issues & authoritatively resolve
Law will not concern itself with trifles/trivial matters. Resort to court
services in disputes is voluntary for plaintiffs, whereas defendant’s
participation is involuntary. In Canada, defendant recovers the cost for
3 stages of disputes:
i. Grievance/preconflict stage – monadic, involve only one
Situations that an individual/group perceives to be unjust &
considers grounds for resentment/complaint.
Situation could be real/imaginary.
ii. Conflict stage – Dyadic, involves only 2 parties.
iii. Dispute stage – triadic, involves the participation of a third
party. Conflict made public. 10
Methods of dispute resolution : dueling, feuding, shaming, re
intergrative shaming (seen as a method of resolving disputes through
the healing of wounds in some cultures – Aboriginals), seek
supernatural agencies (witchcraft to punish wrongdoers), lumping it
(inaction, to not make a claim/complaint. Ignoring the issues while
continuing the relationship), & avoidance (limiting the relationship
with other disputants sufficiently so that the dispute no longer remains
Primary Resolution Process/Alternative Dispute Resolution (ADR):
i. Negotiations – when disputants seek to resolve their
disagreement without the help of neutral 3 parties.
Twoparty arrangements – debate & bargaining.
In industrialized countries (Canada), lumping behavior,
avoidance & negotiation are the most frequent responses to
ii. Mediation – interposes a disinterested & noncoercive 3 party