Law Notes PDF

Articulated within the law and legal system -​ Adherence to precedent -​ Separation of judicial and legislative functions of government -​ Adherence to procedural formalities Key Functions -​ Facilitate mechanisms for social interaction -​ Mediate and regulate interactions -​...

Articulated within the law and legal system -​ Adherence to precedent -​ Separation of judicial and legislative functions of government -​ Adherence to procedural formalities Key Functions -​ Facilitate mechanisms for social interaction -​ Mediate and regulate interactions -​ Prohibit harmful interactions Nullification -​ Legal and moral arguments can favour nullification +​ Rule of law is more mythical than real +​ Moral obligation to disobey unjust laws +​ Democratic domination Civil Disobedience -​ Nullification is likened to acts of civil disobedience that challenge state oppression and systemic injustices Liberal Legalism -​ Adherence to precedent -​ Separation of judicial and legislative functions of government -​ Adherence to procedural formalities Limitations of Traditional Legal Education Legal Positivism -​ Idea behind positivism as a legal philosophy is that legal systems are posited -​ Created by human acts and imposed on people -​ Have no natural or metaphysical existence -​ Focuses on understanding the nature of the legal system as opposed to speculating about morality -​ Law exists independent of its impacts or questions of morality Menkel-Meadow -​ Asks us to engage with the nature of the task of studying and practising the law -​ Asserts law must be studied and practise with reference to ‘extra-legal knowledge’ -​ Law must be engaged from a perspective of interdisciplinarity -​ Encourages engaging with nature of studying and practicing law -​ Law is too complex for single perspective -​ No single view can capture law’s full relationship with society +​ Shires - local jurisdiction Indigenous Traditions -​ Presettler importance +​ Indigenous legal decisions shaped governance before settlers arrived -​ Distinctive practices +​ Many indigenous nations in Canada had diverse legal traditions +​ Blood feud: legal principle allowing reciprocal injury for crimes against a family member Internal Aids to Statutory Interpretation -​ Statutory direction +​ Statutes will contain sections intended to assist the courts in sections intended to assist the court in interpreting a statute -​ Grammatical rules of construction +​ Focus on the context of words used in a statute Status, Identity, Citizenship, and Legitimate Inequality -​ Economic equality and citizenship +​ Can involve cultural and social aspects  +​ Defining equality solely in economic terms can ignore cultural and societal factors -​ Exclusions and unjust end +​ Citizenship is tied to a single culture +​ Historically social policy focussed upon providing social rights to male citizens +​ Limited recognition for rights of women or marginalised groups -​ Culture vs legal citizenship +​ Expressed through shared cultural values +​ Relationship with cultural citizenship may take precedence over their legal citizenship +​ Creates tension between legal and cultural forms Neoliberalism and Social Citizenship -​ Citizenship should not automatically grant a set of rights -​ Emphasize that people should work for their rights -​ If a person is given something for nothing, they will continue to do nothing Universal Welfare Vs Individual Aspiration -​ Welfare state aims to provide universal support -​ Argue that if citizens are immediately given the same set of rights, they will lack incentive to work hard State Interference Vs Individualism -​ Reducing state support will encourage competition and personal responsibility -​ State funded services could create permanent underclass Mohawk Debate -​ Some argue preserving cultural integrity is essential some see it as exclusionary -​ Focus on community survival vs broader national rights Multiplicity of Solitudes -​ Differentiated citizenship could increase social divisions -​ Two solitudes in Canada could grow, complicating integration of diverse groups Canada’s Approach to Rights -​ International human rights approach +​ Protects individuals from intrusive state action +​ Ensures dignity and equal societal participation +​ Requires balancing the rights of individuals with the collective social interest +​ Emphasises that society that society should be free from discrimination +​ Recognizes that there groups in society that may need special protection -​ Emphasise idea that people should be free from an intrusive state and treated with dignity -​ Have necessary means for full and equal participation in society Factors Key to Common Law -​ Nature of the decision being made and the process followed in making it -​ Nature of the relevant statutory scheme -​ Importance of the decision to those affected by it -​ Legitimate expectations of the claimant -​ Choice of procedures made by the decision-makers and any relevant institutional constraints Constitutionalization of Equality -​ Focus on women's role in equality struggles Substantive Equality -​ Equality of opportunity and result over treating similarly situated individuals the same Impact on Legal Fields 1.​ Tort law +​ Greater inclusion of women’s experiences in legal frameworks