Nature & Origins of Law

Nature & Origins of Law

• Law is a system for resolving disputes between individuals and the state.
• Conflict is a universal feature of human society
• Law governs a person's conduct and is enforced by police, individuals, courts, or tribunals.
• Sanctions like jail and monetary damages are imposed for non-compliance.
• Courts interpret and apply the law, representing the values of the jurisdiction it governs
• Law strives for predictability while remaining flexible to changing societal needs

Predictability vs. Flexibility

• Uniform application of law, allowing everyone to understand the law.
• Flexibility achieved through judicial interpretation and legislative changes.
• Statutes and rules replace aspects of common law.

Purpose of Law

• Protect people, property, and goods
• Uphold public morals
• Regulate business activities
• Protect those in power
• Resolve conflicts

Origins of Law

• Current laws originate from various sources, demonstrating ongoing development.

Sources of Law

• Civil Code (Quebec)
• Common Law (Case Law) - All of Canada, except Quebec
• Constitution
• Statute Law
• Custom
• Legal Texts

Civil Code

• System of law found in Quebec and France.
• All rules are codified (written down).
• Contrasts with common law.

Common Law

• Also known as case law or judge-made law.
• Based on precedent.
• Judges develop legal principles, adopted in subsequent cases.
• If facts fit precedent, it's applied; if not, the principle may be extended.
• Strength of precedent depends on factors including jurisdiction, number of cases establishing the principle, court status; new case vs old, nature and subject matter, number of judges involved, unanimous or dissent judges; presence of counsel; and stage of proceedings.
• Predictability and flexibility. Stare decisis (stand by things decided); similar cases should yield similar results; cases with different facts may allow judges discretion.
• Ratio decidendi - principle on which a case is decided.
• Obiter dictum - judge's incidental comments, not establishing precedent.
• Judges can distinguish a case to avoid applying precedent when facts differ.

The Constitution

• Fundamental law, the power of other laws stems from it.
• Constitution Act, 1867 (Canada).
• "Higher law," used to judge other laws
• Division of powers
• Charter of Rights & Freedoms. Core freedoms; legal rights (life, liberty, security, unreasonable search & seizure, arbitrary detention, reason for detention, counsel); equality rights (age, religion, race, color, nationality, sex, disability).
• Government regulates businesses through legislation. Unconstitutional legislation is invalid.

Statute Law

• Legislation created by federal, provincial, and municipal governments.
• Doctrine of paramountcy - federal law prevails when in conflict with provincial law.
• Overrides existing common law on the same point
• Regulations.
• Codification, changing common law, updating laws to match the modern world.

Custom & Legal Texts

• Laws originating from custom, e.g. law of merchant, postal acceptance rule.
• Well-known legal authorities' interpretations impacting laws and principles.

Division of Law

• Substantive law - specifies rights and duties (e.g., right to vote, property).
• Procedural law - protecting rights and enforcing duties, e.g. appeal rights, arbitration processes.

Precedent

• Established in legal cases; used by courts to resolve following similar cases.
• Key factors affecting the strength of precedent: jurisdiction, court position, number of cases, type and nature of case and judges involved, presence or absence of lawyers, stage of the legal process.

Example Questions & Answers (selected)

• Illustrative case studies regarding the application and interpretation of existing laws.
• Focuses on specific case issues like snow shoveling disputes and business contracts.