Foundations of Law: Rule of Law and Sources

• Study notes on the foundations of law are detailed below

Rule of Law

• A core tenet ensuring universal accountability, even for government officials.
• Requires laws to be clear, public, and impartially applied to foster trust in the legal framework.
• Ensures justice through independent and impartial courts, promising equitable trials and outcomes.
• Guarantees equality before the law, treating every individual the same, irrespective of status.
• Consistent law enforcement prevents arbitrary actions and supports stability.
• Affirms universal access to legal safeguards, regardless of individual situations.

Primary Sources of Law

• Constitutional Law: The supreme legal authority, defining governmental structure and individual entitlements.
• Statutory Law: Enacted laws by legislative bodies, exemplified by the Criminal Code of Canada.
• Common Law: Judge-made law based on precedent, guided by stare decisis, compelling courts to respect prior rulings.

Secondary Sources of Law

• Secondary sources interpret and clarify primary sources, providing analysis and context.
• Examples include legal textbooks, offering summaries of laws, and judicial interpretations, clarifying legal standards.
• Law reform reports propose legal changes based on societal needs and shifts in law.
• Academic articles promote legal scholarship and discussion, influencing legal evolution.

Historical & Religious Influences on Law

• Shaped by ancient legal systems, including Greek, Roman, and English law.

Ancient Legal Systems

• Greek Law: Popularized democracy and jury trials, promoting citizen involvement in legal processes.
• Roman Law: Notable for codification through the Justinian Code and the concept of 'innocent until proven guilty'.
• English Law: Advanced common law based on precedent, evidenced by the Magna Carta (1215), which limited royal authority and established due process.
• French Law: Introduced a civil law system (Napoleonic Code) predicated on written laws, influencing legal systems globally.

Common Law vs. Statute Law

• Highlights key differences between them.

Key Differences

• Common Law: Derived from judicial decisions, functioning under stare decisis, using past rulings to inform future cases.
• Statute Law: Officially written laws passed by legislatures, superseding common law when contradictions occur.

Judicial & Legal Principles

• Focuses on key principles of judicial and lawyer independence

Judicial Independence and Impartiality

• Judicial Independence: Shields judges from political pressures to ensure fair, unbiased rulings and public confidence.
• Judicial Impartiality: Mandates judges to apply laws fairly, ensuring equal treatment for all parties.

Lawyer Independence

• Advocates for lawyers representing clients without external coercion, essential for preserving legal integrity.

Legal Theories

• Positive Law vs. Natural Law, Marx, and theories by legal realists

Positive Law vs. Natural Law

• Positive Law: Argues laws are human creations that must be followed, irrespective of moral considerations.
• Natural Law: Suggests laws should reflect morality and ethics, endorsing challenges to unjust laws.

Marx and Critical Legal Theory

• The theory states law favors the ruling class, controlling the lower class, and is evident in unequal penalties for crime.

Legal Realism vs. Legal Formalism

• Legal Realism: Considers social, economic, and political factors when applying law, acknowledging its societal effects.
• Legal Formalism: Supports strict adherence to the literal interpretation of the law, limiting external influences.

Key Legal Doctrines

• Important doctrines are: Obiter Dictum, Stare Decisis, and Ratio Decidendi.

Important Doctrines

• Obiter Dictum: Non-binding judicial comments that offer insight into the court's rationale.
• Stare Decisis: Upholds the practice of following precedents to maintain legal consistency and predictability.
• Ratio Decidendi: Binding legal reasoning used in court decisions is essential for legal precedent.

International Law

• Key concepts relate to the sovereignty of nations, customs, conventions and treaties

Key Concepts

• Sovereignty: A nation's right to self-governance without external intervention, fundamental to international law.
• Customs & Conventions: Customs are unwritten state practices, while conventions are formal and non-binding agreements.
• Treaties: Binding agreements between countries, requiring ratification and subject to conditions or invalidation.

Principles of Armed Conflict

• Centers of the principles of distinction, proportionality, necessity and humanity

Distinction

• Requires that conflict avoid targeting civilians.

Proportionality

• Ensures force does not exceed the threat.

Necessity

• Limits military actions to those achieving legitimate goals.

Humanity

• Aims to minimize unnecessary suffering in war.

The Canadian Charter of Rights & Freedoms

• Outlines key sections

Key Sections

• Section 2: Guarantees freedoms of religion, expression, press, assembly, and association.
• Sections 7-15: Detail legal rights, including life, liberty, security, and equality.
• Section 33: The Notwithstanding Clause allows governments to override certain rights conditionally.

Majoritarian vs. Minority Rights

• A comparison of majoritarian and minority rights

Majoritarian Rights

• Reflect the majority's desires.

Minority Rights

• Protect at-risk groups like Indigenous peoples, safeguarding their entitlements.

The Oakes Test

• To assess the reasonableness of Charter limitations.

Pressing and substantial objective

• This evaluates the law's purpose

Rational connection

• If the law is logically connected to its goal

Minimal impairment

• If the law limits rights as little as possible

Proportionality

• This balances law's benefits against its drawbacks.

Charter Remedies

• Damages, reading in, and invalidity

Types of Remedies

• Damages: Payments for Charter rights violations.
• Reading in: Courts add provisions to laws to align with the Charter.
• Invalidity: Courts declare laws unconstitutional if they breach Charter rights.

Procedural vs. Substantive Justice

• Shows the key differences and similarities between both elements of justice

Procedural Fairness

• Upholds fair legal processes, including the right to a fair trial.

Substantive Fairness

• This focuses on the fairness of the law itself.