Law 203 - Sept.docx

**Sept 9** **Law:** The set of rules and regulations governing a society. Definitions of law tend to centre around: - Formal rules of conduct - Involvement of politics - Balancing individual and collective interests - Establishing social order - Limiting the arbitrary use of power (...

**Sept 9** **Law:** The set of rules and regulations governing a society. Definitions of law tend to centre around: - Formal rules of conduct - Involvement of politics - Balancing individual and collective interests - Establishing social order - Limiting the arbitrary use of power (the rule of law) (Diff definitions) - "Law is a set of rules that are generally obeyed and enforced within a society" - "Law allows border social life to continue" **[Law and Politics ]** - Law is shaped by politics and politics is shaped by laws - Laws can reify or challenge existing power relations in society - Law shapes a country's political problems - Law can prevent the state's abuse of power **Justice:** Reflects the idea of legal fairness, legal equality, legal rights, and punishing legal wrongs. "To give each person their due" - derived from the Roman term "Justicia" - **Distributive Justice**: The fair allocation of resources within society **[Contending Theoretical Perspectives on Law]** **Natural law:** Posits the idea that there is universal, absolute law. Either emanating from God or separate from the divine. - Positivism: A 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", like positivism. 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]** **Feminist theory of law:** - Understands law from a gendered perspective - Identifies and problematizes the gendered nature of law and legal study **First wave of feminist thought** - Issues of legal rights and representation. **Second wave of feminist thought** - Women's reproductive rights. **Third wave of feminist thought** - Understanding the system of law as an underlying patriarchal structure. **[Applying Theoretical Perspectives: Carter v. Canada]** - Supreme court of Canada was asked to review the criminalization of physician assisted suicide in 2014 (this was considered illegal at the time). K. Carter suffered from a degenerative spinal disease. Trudeau's government allowed for medically assisted suicide to be passed as a law. - A natural legalist thinker may think that life is sacred, therefore this law is an illegitimate law 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 I]** - 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]** - A 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. Statute law: Law created by legislature Case Law: Law established by judicial decisions, involves judicial precedents, case law results in 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 medial 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 is transformed into Canadian legal form Constitutions: The foundational (constitution) charter and supreme laws that form the basis of a legal system and political society, Constitutions constitute. Constitutions tend to: - 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: the particular features of constitutions - Some constitutions are short, others are long - Some constitutions are written/codified,\ others are unwritten/uncodified\ Most constitutions are designed to be\ difficult to change\ Most constitutions have particular\ amendment processes\ Many constitutions specify judicial review\ Many constitutions 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: the division of government powers in a system between branches of government: executive, legislative, judicial. Federalism: A political system with multiple levels of government, each with a degree of autonomy with specified jurisdiction Unitarism: A 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\ 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\ Sections 25 -- 34: relate to the application of the Charter\ -Section 32: applies to both federal and provincial governments\ 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. - Know the highlighted sections of the Charter from the PDFs for midterm Example questions: "The \_\_\_\_ is canada's final court of appeal" (supreme court) "\_\_\_ is an example of public law" (contract, or court, or criminal law)