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Questions and Answers
What is one primary function of law in society?
Which perspective views law as an instrument to protect the economic elite class?
What does distributive justice primarily address?
How does the critical legal theory differ from legal positivism?
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Which of the following best defines positivism in the context of law?
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What is a characteristic of feminist theory of law?
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Which statement best captures the relationship between law and politics?
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What aspect of law does legal realism emphasize?
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What was the significance of the Magna Carta in 1215?
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What does public law encompass?
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Which act in 1982 patriated the Canadian constitution?
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What role do committees play in the legislative process in Canada?
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In the context of Canadian law, what is the primary focus of substantive law?
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What is a characteristic of the legislative process in Canada?
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Which of the following acts created the United Province of Canada in 1840?
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What does the executive branch do in the context of law?
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What political system is characterized by multiple levels of government with a degree of autonomy?
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Which Act established Canada as a federal state?
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What is case law primarily based on?
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Which section of the Constitution Act outlines federal powers and jurisdiction?
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Which of the following acts was introduced in Canada to regulate narcotics?
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What is the purpose of the 'Notwithstanding clause' in the Canadian Charter of Rights and Freedoms?
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Which of the following events occurred in Quebec's reaction to the Constitution Act, 1982?
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What does constitutional design refer to?
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What is one characteristic of most constitutions?
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What does Section 24 of the Canadian Charter empower the courts to do?
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What was the outcome of R. v. Drybones regarding indigenous rights?
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How does Canadian law generally treat indigenous legal orders?
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Which section of the Canadian Charter addresses fundamental freedoms?
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What is a function of constitutions in a political society?
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What is the separation of powers?
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Which of the following is NOT a purpose of constitutions?
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Study Notes
Defining Law
- Defined as a set of rules and regulations governing a society
- Formal rules of conduct
- Involves politics
- Balances individual and collective interests
- Establishes social order
- Limits arbitrary use of power (rule of law)
Law and Politics
- Law is shaped by politics and politics is shaped by law
- Laws can reify or challenge existing power relations
- Law shapes a country's political problems
- Law can prevent the state's abuse of power
Justice
- Reflects the idea of legal fairness, equality, legal rights, and punishing legal wrongs
- To give each person their due - derived from the Roman term "Justicia"
- Distributive Justice: fair allocation of resources within society
Contending Theoretical Perspectives on Law
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Natural Law
- Posits that there is universal, absolute law, emanating from God or separate from the divine
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Positivism
- Theory of law that views law "as is" rather than "as it should be"
- Law is human-made
- Law's validity comes from the validity of the sovereign (the state)
- Rooted in the British practice of parliamentary supremacy
-
Legal Realism
- Understands law and legal outcomes as part of political, economic, and social contexts
- Focuses on law "as is" rather than "as it should be"
- Unlike positivism, it focuses on the influences of law
- **Critical Legal Theory **
- Critical of the rationales, purposes, and assumptions of law and legal theories
- Views power as embedded within legal systems
- Arose as a challenge to positivism
- Often influenced by Marxist ideas
Marxism
- Informed by the idea of historical materialism
- Tends to view law as an institution of capitalism and an instrument to protect the economic elite class
Feminism
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Feminist theory of law:
- Understands law from a gendered perspective
- Identifies and problematizes the gendered nature of law and legal study
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First wave of feminist thought
- Issues of legal rights and representation
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Second wave of feminist thought
- Women's reproductive rights
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Third wave of feminist thought
- Understanding the system of law as an underlying patriarchal structure
Carter v. Canada
- Supreme Court of Canada was asked to review the criminalization of physician-assisted suicide in 2014 (illegal at the time)
- K. Carter suffered from a degenerative spinal disease
- Trudeau's government allowed for medically assisted suicide legislation
- A natural legalist thinker may believe that life is sacred, therefore this law is illegitimate, as it inflicts the notion of morality
An Early History of Law
- The history reaches over 4000 years (Hammurabi, Confucius, Mohammad)
- Feudal law
- 1215 Magna Carta: The great charter, feudal era charter governing feudal rights, limited authority of the monarchy
A Legal History of Canada
- The Royal Proclamation of 1763: Transferred French territory to the British
- 1774 Quebec Act
- The Constitution Act of 1791: Divided Canada into upper and lower Canada
- Act of Union of 1840: Created the united province of Canada
- The British North American Act of 1867: The legal basis of Canada
- 1892: Criminal code
- 1931: Statute of Westminster (Canada becomes self-governing dominion)
- The Constitution Act of 1982: Patriated the constitution, included the Charter of Rights and Freedoms
Types of Canadian Law
- Public Law: area of law concerned with the public interest (criminal law, constitutional law)
- Private Law: The area of law concerned with legal disputes between individuals (Tort law -- basically means suing someone, family law, property law)
- Substantive Law: The area of law that govern society (criminal law)
- Procedural Law: The area of law governing the rules of law and the procedures of the legal system (sentencing)
- Legislature: Create and change law
- Executive: Executes laws/policies
- Judiciary: Implements law and dispenses justice
The Legislative Process
- Highly political process involving compromises and "horse trading"
- In some cases, results in legislative violence
- Committees play a large role in creating legislation
- In Canada, federal bills are introduced for a first reading, a second reading followed by debate, committee review and then a third reading, including review by the senate
Sources of Law
- Statute Law: Law created by legislature
- Case Law: Law established by judicial decisions; involves judicial precedents, case law results in a more dynamic legal system
- Custom: a source of law derived from customary practice
- Books of Authority: authoritative text on legal principles by scholars
Drugs and Laws in Canada
- 1908 An Act to prohibit the importation, manufacture and sale of opium for other than medical purposes
- 1911 Opium and Drug Act: Changes influenced by a book of authority
- 1961 Narcotic Control Act
- 1997 Controlled Drug and Substances Act
- 2012 Safe Streets and Communities Act
- 2017 Cannabis Act
Indigenous Laws in Canada
- Canadian law is resistant to indigenous legal orders
- There is limited space in Canadian law for indigenous law
- Where there is space, indigenous law is transformed into Canadian legal form
Constitutions
- Foundational (constitution) charter and supreme laws forming the basis of a legal system and political society
- Constitute.
- Express founding principles & shared values
- Establish the political system
- Establish fundamental laws of society
- Confer power to actors and/or institutions
- Limit the exercise of government power
- Outline the basic rights and obligations of citizens
- Highlight a particular history
- Contain aspirations
Constitutional Design
- Some constitutions are short, others are long
- Some constitutions are written/codified, others are unwritten/uncodified
- Designed to be difficult to change
- Have particular amendment processes
- Many specify judicial review
- Many omit important political structures and legal processes
Constitutions and the Diffusion of Power
- Most constitutions diffuse authority of the state: the division of powers, systems of checks and balances.
- Authority may be diffused horizontally or vertically
Separation of Powers
- Division of government powers in a system between branches of government: executive, legislative, judicial.
Federalism
- Political system with multiple levels of government, each with a degree of autonomy with specified jurisdiction
Unitarism
- Political system with no subnational governments possessing delegated authority/ jurisdiction
The Constitution of Canada
- 1764 Royal Proclamation: Transferred French territory to the UK
- 1867 British North America Act: Created the 'Dominion of Canada'
- 1931 Statute of Westminster: 'Crown split’
The Constitution Act, 1982
- Patriated the Constitution
- Includes judicial review
- Includes the Canadian Charter of Rights and Freedoms
Canadian Federalism
- The British North America Act, 1867 established Canada as a federal state
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Section 91: outlines federal powers and jurisdiction
- Section 91(27): gives federal government exclusive power to legislate on criminal law
- Section 92: outlines provincial powers/jurisdiction
- Section 36(2): sets out equalization payments between provinces
- Canada (Attorney General) v.PHS Community Services Society
The Canadian Charter of Rights and Freedoms I
-
Section 1: The 'limitations' clause
- 2-part test: I) sufficient importance & ii) proportionality
- I.e. Saskatchewan v.Whatcott (2013) 1 SCR 467
- Section 2: sets out fundamental freedoms of Canadians
- Sections 3, 5 & 6: set out basic rights of Canadians
- Sections 7 -- 14: sets out legal rights of Canadians
- Section 15: sets out equality rights of Canadians
- Sections 16 -- 23: concerns minority-language rights
The Canadian Charter of Rights and Freedoms II
- Section 24: power of the courts to exclude certain evidence
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Sections 25 -- 34: relate to the application of the Charter
- Section 32: applies to both federal and provincial governments
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Section 33: Notwithstanding clause
- Section 33(3) limits the clause to 5 years
- R.v.Morgentaler (conducted abortions at the time when it was illegal) (1988) 1 SCR 30
Quebec's Rejection of the Constitution Act, 1982
- Quebec never approved the Constitution Act, 1982
- 1987 Meech Lake Accord
- 1992 Charlottetown Accord
R.Vs Drybones 1970
- Indian act (illegal for indigenous people to be intoxicated outside of the reswerve but dybones was found intoxicated off the reserve.
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Description
This quiz explores key concepts related to law, including its definition, the interplay between law and politics, and various theories of justice. It examines how laws shape societal order and impact power dynamics. Test your understanding of the fundamental principles governing legal frameworks.
