Canadian Law and The Legal System Radings.docx

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Law and Society
LWSO 203
Marywyatt Sindlinger

Canadian Law and The Legal System Chapter One – Introduction Law means a body of requirements commonly rules and norms that apply to behavior Legal system means an institutional structure within which law is applied.  Many difficulties distinguishing between the two and getting a clear picture of what is meant by “law” Two types of law: rules imposed aimed to regulate people’s behavior and universal laws (law of gravity/nature)  Not all rules are laws; Law has a special kind of enforcement to distinguish it from other kinds of rules  Phlip S. James - “Rules for the guidance of human conduct which are imposed upon, and enforced among, the members of a given state”  A state answers to no one outside its territory for actions within  Law is a body of rules that is tied to the state and prescribed by human beings within each state Understanding law – Jurisprudence 1. Legal Positivism  Existence of law depends on the facts of its making  John Austin – “law is the command of the sovereign”. He claimed if a law could not be traced back to a sovereign, a political superior, it was not a law.  Thomas Hobbes – people need a strong sovereign with absolute powers in order for there to be peace and order.  Jeremy Bentham – rejected natural rights and believed only rules that have been scientifically studied and empirically determined could be called laws.  Problem with legal positivism – does not fully explain where the sovereign came from.  Grundorm – doesn’t depend on another law for its authority but is the foundational principle  H.L.A Hart – primary and secondary rules 2. Natural Law Theory  Law and morality (law must comply with moral teachings)  First view: law comes directly from God  Second view: law comes from human’s conscious reflection of right thinking and rationalization/reasoning  John Locke: people possessed “natural rights” derived from natural law, which governed them in a state of nature. 3. Historical Jurisprudence: The Volksgeist  Graham Sumner - Law develops from social customs developed by groups in the struggle of their survival  Rejected ideas of universal or absolute truth in law  Savigny – law evolves from people’s lived experiences; it is a product of people’s particular history and was “embedded in a web of cultural assumptions” dependent on the spirit of its particular people – the Volksgeist 4. Legal Realism  Skeptical about neutrality of the law  Law is not applied mechanically, nor can it be. In every case, judges inject their personal beliefs and values, consciously or not. 5. Critical Approaches  Socialists, feminists, race theorists  Investigate the role of law in perpetuating discrimination and and prejudice towards racialized minorities and gays and lesbians  Law is a reflection of a particular ideology  Hegemony – the power relations of certain groups of people over others which are so deeply embedded in our law that they appear natural and strongly resistant to change. Chapter Two – Historical Development of Canada’s Political and Legal Systems  No legal system was established from a blank sheet. Either the law or the system had to start with a complicated machine of set of rules that were already firmly driving our public and private affairs and even their thoughts about it. Canada’s Aboriginal Political and Legal Systems Even though some nations were nomadic, most were well established in certain areas to which they returned to regularly and repeatedly according to the seasons. There were no written laws; only traditions of oral teachings. There was no s
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