Rules vs. Laws: Functions and Philosophy

Rules vs. Laws

• Rules are principles dictating conduct and limitations.
• Laws are rules enacted by the government.

Rule of Law

• Government enactment of law is open and transparent.
• Laws are clear, known, and equally applied.
• Laws govern actions of government, individuals, and their relationships.

Five Functions of Law

• Establishes rules of conduct
• Provides a system of enforcement
• Protects rights and freedoms
• Protects society
• Resolves disputes

Philosophy of Law: Plato

• Justice favors the stronger and rewards law-abiding citizens.
• Justice promotes the well-being of others

Philosophy of Law: St. Thomas Aquinas

• Laws should protect and aid society.
• Four mottos:
  • Law is reasonable.
  • Law contributes to the common good.
  • Law must be made by competent authority.
  • Law must be promulgated.

Philosophy of Law: Hobbes

• Citizens should surrender liberty for self-preservation.
• State of nature is the worst situation for humanity.
• Social contract involves:
  • Agreement to establish a society, surrendering rights against each other.
  • Agreement to authorize a person or group to enforce the contract.

Philosophy of Law: Hume

• Natural law is man-made, not divinely ordained.

Philosophy of Law: Locke

• Individuals possess natural rights: life, liberty, and property.

Locke vs. Hobbes

• Locke: Social contract invests power to protect citizens' human rights.
• Hobbes: Humans use reason to leave the state of nature and submit to absolute monarchy.

Historical Roots of Law: Code of Hammurabi

• King Hammurabi of Babylon reigned from 1792-1750 B.C.E.
• One of the earliest known written codes, discovered in Susa, Iran, in 1901.
  • Retribution: Justice based on vengeance ("eye for an eye").
  • Restitution: Offender compensates the victim.

Historical Roots of Law: Mosaic Law (Hebrew Law)

• The Ten Commandments are found in the Book of Exodus.
• Biblical law significantly influenced our legal system

Historical Roots of Law: Greek Law

• Draco's Law (621 B.C.E.) featured harsh penalties, including death for many offenses.
• Solon's Law (594 B.C.E.) replaced Draco's laws focusing on fairness and balance
• Criminal and civil law emerged

Historical Roots of Law: Roman Law

• Codified, with legal advisors in use across the empire.
• The Twelve Tablets (450 B.C.E.) were early Roman codes written on wood and bronze.
• Two principles:
  • Law must be recorded (written).
  • Justice cannot be solely based on judges' interpretations.

Historical Roots of Law: Justinian's Code

• Created in 529 C.E. after the Roman Empire split.
• Influenced Western civilizations, particularly France.

Historical Roots of Law: Napoleonic Code (French Code)

• Established after the French Revolution by Napoleon Bonaparte.
• Regulated civil matters, including property, wills, contracts, and family law.

Early British Law: Trial by Ordeal

• Torture was used to determine guilt or innocence when a judge couldn't reach a verdict.
• God was believed to be the judge.
• Guilt often resulted in the death penalty.

Early British Law: Trial by Oath Helping

• Friends of the accused swore on the Bible to attest to their innocence.
• Agreement from friends resulted in acquittal.

Early British Law: Trial by Combat

• Guilt or innocence was determined through a duel.
• Stronger individuals were sometimes hired to fight on behalf of others.

Feudal System and Common Law

• Assizes: Courts held by traveling judges ensured fairness across regions.
• Circuit judges: Traveling judges.
• Case law: Deciding cases based on recorded decisions of similar past cases.
• Common law: Relies on case law and applies universally.
• Feudal law: Land granted to vassals in exchange for loyalty and service.
• Stare decisis: Judges adhere to precedents.
• Rule of precedent: Applying past decisions to similar current cases.

Magna Carta

• Established basic rights in England.
• Established the principle that no one, including the King, is above the law.

Habeas Corpus

• Guarantees a court appearance within a reasonable time for anyone arrested or detained.
• Prevents arrest or detention without valid reason.

Aboriginal Law

• Rights, duties, and responsibilities of Indigenous groups.
• Passed down through traditions and storytelling.
• Great Binding Law: Caring for the land ensures the land cares for us.

Chapter 1 Vocabulary

• Adversarial system: Two opposing parties present evidence to an impartial judge/jury.
• Code of Li k’vei: Chinese laws written around 350 BCE.
• Codified: Systematically arranged and recorded.
• Divine Right: Monarchs derive power from God and are accountable only to God.
• Great Laws of Manu: Indian laws compiled between 1280 and 880 BCE, previously oral.
• Quebec Civil Code: Legal system in Quebec for private matters.
• Ten Commandments: Laws given to Moses.

Sources of Law in Canada: Common Law

• Unwritten laws of England that are universal
• Referred to as "judge-made laws."
• Judges can create new precedents by distinguishing cases.

Sources of Law in Canada: Statute Law

• Laws passed by the government in the form of acts.
• Become law after formal process in Parliament or provincial legislatures.
• Each level of government enacts legislation within its jurisdiction.
  • Jurisdiction: The area or scope of authority.

Sources of Law in Canada: Federal Government

• Enacts laws within its power, including:
  • Criminal law
  • Federal prisons
  • Employment insurance
  • Banking and currency
  • Marriage and divorce
  • Postal services

Sources of Law in Canada: Provincial Government

• Enacts laws involving provincial matters:
  • Hospitals/healthcare
  • Police forces
  • Highways
  • Education

Sources of Law in Canada: Municipal Government

• Laws are called bylaws
• Regulates local issues:
  • Parking enforcement
  • Zoning
  • Property lines
  • Waste collection
  • Building permits

Sources of Law in Canada: Constitutional Law

• Divides federal and provincial law-making powers.
• Structures our federal government.
• Overrides all other laws.
• Laws violating the Constitution can be struck down as "unconstitutional."

Classifications of Law: Domestic

• Applies to those living, working, or visiting a country.

Classifications of Law: Procedural

• Ensures fair treatment of citizens under the law.

Classifications of Law: Substantive

• Defines rights, duties, and obligations.
• Tells us what we can and cannot do.

Classifications of Law: Public

• Constitutional law: Sets out how the country is governed.
• Administrative law: Deals with government departments and powers.
• Criminal law: Deals with lawbreakers and consequences.

Classifications of Law: Private

• Tort law: Deals with civil wrongs causing harm or loss.
• Contract law: Govern agreements between parties.
• Family law: Addresses legal matters related to family relationships.
• Wills and Estates: Focuses on the distribution of property after death
• Property law: Governs ownership, use, and transfer of property.
• Employment law: Deals with employer-employee relationships.

Classifications of Law: Common and Civil

• Common: Body of law created from previous court decisions.
• Civil law: Hybrid system, a mix of French civil law and common law used in Quebec.

Classifications of Law: International

• Laws governing relations between countries
• Usually created by customs.

Chapter 2 Vocabulary

• Bylaws: Laws passed by municipal governments for local issues.
• Distinguishing a case: Identifying sufficient differences to warrant a different decision.
• English common law: Law originating from judges' decisions in previous cases.
• Private law: Law governing relationships between individuals and organizations.

Canada’s Constitution: British North American Act

• Passed by the British Parliament on July 1, 1867.
• Established Canada as an independent country.

Canada’s Constitution: Unitary vs. Federal System

• Unitary: One central government holds highest authority.
• Federal system: Government divided between central and regional levels.

Canada’s Constitution: Division of Powers

• Section 91: Federal government responsibilities.
• Section 92: Provincial government responsibilities.
• Section 93: Provincial government responsibility for education.
  • Division of Powers: Sharing authority between government levels.

Canada’s Constitution: Ultra Vires vs. Intra Vires

• Intra vires: Passing a law within a government's jurisdiction.
• Ultra vires: Latin term meaning "beyond the powers."

Patriating the Constitution: Statute of Westminster

• Allowed Canada to become more independent from Great Britain.
• Gave Canada the power to make its own laws.

Patriating the Constitution: Problems with the BNA Act

• Requiring British approval for constitutional changes
• Different perspectives within the Canadian Government.
• Confusion with the Division of Powers
• Shared cost agreements complexities
• No civil liberties.

Patriating the Constitution: Constitution Act, 1982

• Patriated Canada's Constitution, ending the need for British approval.
• Included the Charter of Rights and Freedoms and the BNA Act of 1867.
• Four key elements:
  • Equal access to essential services.
  • Clear focus on control and management of natural resources.
  • The Amending Formula.
  • The Charter of Rights and Freedoms.

Constitution Act, 1982: Principle of Equalization

• Ensures equal access to public services across all provinces
• Access regardless of a province's financial status.

Constitution Act, 1982: Natural Resources

• Granted provinces power over resources
• Examples: Natural gas, oil.

Constitution Act, 1982: The Amending Formula

• Process for changing the Constitution.
• Requires approval from Parliament and 7/10 provinces representing 50% of the population.

Constitution Act, 1982: The Charter of Rights and Freedoms

• Guarantees important rights and freedoms
• Rights and freedoms for all Canadians.
• Ensures equal and just treatment under the law.

Constitution Act, 1982: Constitutional Conflict: Meech Lake Accord

• Series of proposed constitutional amendments in 1987.
• Aimed to bring Quebec into the 1982 Constitution.
• Involved the federal government and the premiers.
• Disagreements arose due to Indigenous rights, regional concerns, Quebec's status, a lack of consultation, and Manitoba's veto.

Branches of Government: Executive

• Enforces and implements laws.
• Includes the PM, Cabinet, and Governor-General.
• Carries out policies, manages national defense, foreign relations, and public services.

Branches of Government: Legislative

• Makes, amends, and repeals laws.
• Parliament consists of the House of Commons and the Senate.
• Debates and votes on bills; represents public interests.

Branches of Government: Judiciary

• Interprets and applies laws, ensuring consistency with the Constitution.
• Protects individual rights.
• Consists of the Supreme Court of Canada, the highest court.

Enacting a Statute: Bills

• A bill is a proposed legislation.
• Steps to pass a bill:
  • Begins with an idea
  • Draft legislation
  • First Reading (introducing the bill)
  • Second reading (debating the idea)
  • Third reading (debate and vote)
  • The vote
  • Sent to the other chamber
  • Royal assent (becoming a law)

Enacting a Statute: Influence on Changes in Law

• Royal Commissions conduct unbiased investigations of national problems.
• Input from individuals, legal experts, or lobby groups
• Public opinions change, governments respond

Chapter 3 Vocabulary

• Canadian Charter of Rights and Freedoms: Section of the Constitution Act, 1982, outlining protected rights and freedoms.
• Civil liberties: Basic individual rights protected by law.
• Executive branch: Administrative branch responsible for government plans and policies.
• Government or public bill: Legislation proposed by a Cabinet minister.
• Legislative branch: Branch that makes, changes, and repeals laws.
• Lobby groups: Groups that try to influence legislators.
• Patriate: To bring legislative power under the authority of the country to which it applies.
• Private member’s bill: Legislation proposed by an MP not in the Cabinet.
• Residual powers: Federal responsibility to make laws in areas not assigned to provinces.
• Shared cost agreements: Agreements to share program costs between government levels.