Sources of Law and Common Law Principles

Main Sources of Law

• Connections between sources of law and outcomes, socio-cultural, political, and economic implications
• A history of the present legal system, rooted in common law
• Circa 1100s, appointed judges managed conflicts. Decisions were based on local customs, traditions, and religious values
• Lack of written laws, decisions became precedents.
• Custom became the legitimacy to create law, as case quantities grew.
• Customary law, based on local experience made up a system of civil and criminal law.

Judicial Interpretations of Common Law (CL)

• No court hierarchy, decisions are not binding precedents.
• Cases are grouped by similarities in custom and experience to derive binding principles.
• Common use, not a formal structure. Determining if cases are sources of law or illustrations of local rules.

Traditional Sources of Law

• Includes customary law
• Local experience
• Shared understanding of experience within the socio-cultural context.
• Lack of uniformity due to morality reliance on the people.

Rise of Stare Decisis

• Canada's receptivity to the new paradigm shift of a rational legal system
• Increased recognition of human rationality and substantive law
• Judges' role is to apply existing law, not create it, based on the established norms.
• Distinguishing a case to fit the current situation and circumstances.
• Divorce of legal systems from customary practices.

The Constitution of Canada

• A major document that influenced criminal law.
• Outlines the rules of governance
• Division of power
• Scope and mechanisms of power. Describes rights of citizens, protects them from unjust actions.

The Charter of Rights and Freedoms

• Prediction about equality, freedom, and democracy enshrined in the constitution
• Outlines the rights of citizenship against unjust laws.
• Outlines fundamental freedoms.
• Basic principles ensure equality and protection from hate crimes and violence.
• Governments can and should be limited for the good of all.
• Authority is limited by laws.
• There is a need for a better constitutional system.

Judicial Review

• Power of the supreme court to review laws.
• Declaring laws unfair, unreasonable or unlawful laws
• Checking on the actions and laws of the administrative branch of government.
• Laws are based on the considerations of jurisdiction, fact, and procedural fairness.

Judicial Review and Judicial Discretion

• Ratio - legal doctrine where the current ruling case's information cannot be used due to the previous ruling cases not aligning with the current.
• Courts exercise discretion when hearing cases to prevent abuse or violation of the public's interest.
• Limitations on Charter rights, including Section 1 and 33.
• Section 1 - reasonable limits clause and freedom of expression.
• Section 33 - notwithstanding clause in particular situations allowing disregard for Charter protections.
• Issues with Section 33's overuse.

Parliamentary Sovereignty

• Laws passed by elected politicians must be followed by the courts.
• Judges interpret legislation based on the intent of the makers.
• Legal interpretation rules such as:
  • Arbitrary
  • Vague
  • overstretched
  • disproportionate
  • Meaning and character of words
  • Intended purpose of laws
  • Context of the law
  • Consequential outcomes of interpretation.

Parliamentary Sovereignty and Judicial Review

• Textualism and Intentionalism are critiqued and incomplete interpretations.
• Textualism: emphasizes literal meaning of words.
• Intentionalism: seeks legislator's original intent.
• Judicial review of laws to address inconsistencies, imbalances.

Emerging Sources of Law

• Includes Indigenous law/aboriginal law
• Non-domestic laws such as international law
• Legal pluralism
• Prior to Europeans, indigenous groups had complex and specific laws.
• Indigenous laws were influenced by specific tribes, languages, and traditions, which had legal structures similar to complex laws.

Theories of Social Order

• Guiding questions, how societies are organized or maintained due to rules and standards.
• Common values supporting the government, promoting respect for laws, social order and unity.
• Solidarity: agreement amongst people about fundamentals like not killing or harming someone.
• Consensus Model: social order from consensus among people.
• Pluralistic Model: conflict resolution between different groups in society, using the laws for fair and peaceful dispute resolution.

Two Models of Criminal Justice Process

• Crime control model: swift punishment of crime, emphasizes efficiency and social order over individuals' rights.
• Due process model: protection of individuals' rights, emphasizing fairness and minimizing errors.

Tort Law

• Civil actions for harm or injury to people (e.g., negligence, intentional torts).
• Intentional torts: actions that are deliberate and conscious.
• Negligence: inadvertent actions where a reasonable person would take better care.
• Elements to prove negligence: duty of care, breach of duty, causation and harm.
• Contributory negligence: both the person harmed and harm-doer are at fault.
• Damages: monetary compensation, including special damages (quantifiable) and general damages (not quantifiable).

Civil Litigation and Trial Process

• Steps in civil cases, aiming to settle issues without a trial if possible.
• Steps: early stage and pre-trial procedures (statements of claim, motions, discovery) are critical components.
• Alternative dispute resolutions (mediation, negotiation) are also considered.
• Trial and potential judgment.
• Involves the judge or jury hearing evidence to produce a verdict and award damages, if applicable.