CRIM 135 Lecture 3: Sources of Law - Lecture Notes

CRIM 135 Lecture 3 Sources of Law - Law is not fixed, constantly evolves - This fact challenges many theories of law (recall: natural law) - Changes in Law - Prohibition on drugs - Medically assisted dying - The Charter: contributes to change law in Canada - Death penalty prohi...

CRIM 135 Lecture 3 Sources of Law - Law is not fixed, constantly evolves - This fact challenges many theories of law (recall: natural law) - Changes in Law - Prohibition on drugs - Medically assisted dying - The Charter: contributes to change law in Canada - Death penalty prohibition - Purpose of criminal law is not just punishment but restorative/ rehabilitative, and because of human rights law - Early Sources - Magna Carta (1215) - First shift from (full) monarchy to more democratic rule - Not democracy---power still in the hands of powerful barons - Feudal system until 1666 - Early law in Canada - Colonial law overlapping with Indigenous law (legal pluralism?) - Canadian Legal Foundations - Royal Proclamation (1763) - Quebec Act (1774) - Constitution Act (1791) - British North America Act (1867) - Charter of Rights and Freedoms (1982) - Background Factors - Fear of American Expansion, railroad, etc. - Regional Diversity - Canada becomes a federation with provinces - Division of powers in Constitution - Canadian Legal Context - Settler Law - All classification imperfect - Domestic law and International law - Important interactions and overlaps - E.g. cruel and unusual punishment in the *Charter*, plus torture in various international human rights instruments - Substantive law and Procedural law - Procedural law can also be Substantive - Public law and Private law - Whose interests are at play: Private persons or the public? - Public: constitutional law, criminal law, administrative law, taxation law - Private: contract law, torts, real estate, corporate law, property, family law, trusts, patent law, etc. - Some overlaps (e.g. some private law matters to public interest, and public interest law matters to private interests) - Major Influences - British Law - French Law - U.S. Law - Western Philosophy - Judaism and Christianity - Technology - New areas of expertise - Both Public and Private Law - Legal Pluralism - Multiple and different forms of law can co-exist - Two systems co-exist within a political/ legal order - E.g. common law and civil law in Canada - Can also be because a colonial power 'super-imposed' a legal order on others - Law existed before colonialism - E.g. Indigenous Law - Sources of Law - FOUR Main Sources - Legislation - Passed by our elected officials - Case Law (precedence) - Common Law - Customary Law - Authoritative publications (e.g. books) - "Written and Unwritten" Law - Statutes and Legislations - The laws made by legislatures and parliament - The Monarchy's representative has to sign off on it (The King's Representative: Governor General) - Case Law - Jurisprudence - Canada is a common law country - For judges, statutes and past cases are key - Have to respect PRECEDENCE - Hierarchy of courts - SCC at the top: apex court - Case Law Terms: - *Ratio decidendi*---the reason for a case - *Obiter dicta*---legal statements in a judgement not directly relevant - Parties---people involved in the case - Plaintiff---person bringing the case - Defendant---person against whom the case is brought - Majority---the judges that form the majority of the decision - Dissent---those who disagree - Treaties - 'Agreements' between Indigenous peoples and settler governments - Define rights and obligations - Historic and modern treaties - Historic treaties---generally abusive - Indigenous leaders had no real way of verifying what they were signing - Assumed oral agreement surrounding the paper treaty was just as important because Indigenous peoples have an oral tradition - Custom/ Customary Law - The 'original' law---behaviours and practices over time - Varies culturally too - In Canada, less so, as law was already made concretely law - E.g. unwritten conventions in the *Constitution* (SCC, *Reference re Secession of Quebec, 1998*) - Expertise and Authority - Books, articles, etc. - Works of experts---scholars, academics, thinkers, etc. - E.g. Blackstone - Expert Witnesses - E.g. psychologists, medical doctors, or forensic scientists - INCREASED COMPLEXITY OF LAW MEANS INCREASED RELIANCE ON EXPERTS - Indigenous Sources of Law - Fundamentally different from Canadian legal traditions - Not homogenous - Concerned with community safety, fairness, and accountability (same human concerns as Canadian law) - 5 Sources of Indigenous Law - Sacred Law - From the Creator, creation stories, etc. - Deliberative Law - "processes of persuasion, deliberation, council, and discussion"---e.g. talking circles - Custom - "practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them"---marriages, family relations - Positive Law - Rules, regulations, teachings - Put forward by elders, other community leaders - Natural Law - Relationship with the physical world - Nature - Human interaction and how we treat each other (Napolean) - NOT WATERTIGHT BUT INTERACT WITH EACH OTHER