LWSO 203 Lecture Notes PDF

Topic 1: Introducing Law and Perspectives on Law Society- an ordered web of ties and patterned relationships - Includes institutions - Governed by law Institutions- anything that guides patterned human behaviour - Formal institutions- have legal consequences when rules are not followed...

Topic 1: Introducing Law and Perspectives on Law Society- an ordered web of ties and patterned relationships - Includes institutions - Governed by law Institutions- anything that guides patterned human behaviour - Formal institutions- have legal consequences when rules are not followed eg. universities, law - Informal institutions- guides human behaviour through unwritten rules eg. society, culture Organizations- collection of agents working together totowards common goal Institutions vs Organizations All organizations are a type of institution because all organizations guide human behaviour in some way but not all institutions are organizations ie, not all society have a goal they are actively working towards. Law- a set of rules and regulations that govern society i)formal rules of conduct (binding and enforceable) ii)the involvement of politics iii)balancing individual and collective interests iv)establishing social order v)limiting the arbitrary use of power Politics- Practices and processes of power relations Power - Ideological- teaches people how/what to think Structural- power of position Instrumental- power of having things Law vs Politics Politics shape law and law can shape politics => politics (government agents) can decide what law is passed, conversely, those law can determine who has the power (politics) Laws can reify or challenge existing power relations in society Law can prevent state’s abuses of power Law can shape a country’s political institutions Law can adjudicate countries political problems The “Rule of law” is in the centre of most modern states =>evryone is treated impartially and equally under the law; there are systems in place to achieve this equality Justice- derived from the roman term justicia- “to give each their due” - Reflects i) legal fairness ii) legal equality iii) legal rights iv) punishing legal wrongs Distributive justice- concept that addresses equal distribution of resources; there are many different distributive justice theories but some overall examples include social security and progressive taxation. Restorative Justice- an approach to justice that focuses on repairing the harm caused by criminal behavior through inclusive and cooperative processes involving all affected parties—victims, offenders, and the community. Rather than focusing solely on punishment, restorative justice seeks to address the needs of the victim, encourage accountability from the offender, and promote healing for both the individual and the community. The goal is to restore relationships, make amends, and reintegrate the offender into society. Traditional Theories on Law Natural Law: there is a universal, absolute law. These principles are considered to be self-evident, objective truths about right and wrong. MORALITY Lex injusta non est lex- An unjust law is no law at all => authority is illegitimate unless it is good and right. A part of the Canadian Charter of Rights and Freedoms eg. fundamental rights recognizes inalienable rights which aligns with the concept of higher morality,  Additionally, Section 7 of the Charter, which protects life, liberty, and security of the person, embodies natural law ideals of inalienable human rights Positivism: A theory of law that views law “as is” rather than “as it should”. Follows man-made laws and argues that what is right=what is lawful. Law is posited= man made Laws validity comes from the validity of the sovereign state. Rooted in British practice of Parlimentary supremacy => focusing on formal rules and regulations established by legitimate authorities 11. They emphasize the importance of written law and its validity based on the authority of the sovereign or state Legal Realism: understands that law and legal outcomes as part of political, economic and social contexts. Realist analysis of law is like ‘grand-style judging’ (Boyd, 2019) Like positivism, focuses on law ‘as is’ rather than ‘as it ought to be’ Unlike positivism, focuses on the human influences of law higher courts review and make decisions in lower courts, =>Legal realists, on the other hand, challenge this perspective by considering the practical application and effects of law in society 15. They argue that law is shaped by social, political, and economic factors, not just formal rules Marxism: informed by the idea of historical materialism (mode of production and economic relationships, fundamentally shape societal structures, culture, and history.) There are many different Marxist approaches to law Tends to view law as an institution of capitalism and an instrument to protect to economic elite class=> law is monopolized by the bourgeoisie to keep proletariat in check Contemporary Theories on Law Critical Legal Theorist: critical of the rationales, purposes and assumptions of law and legal theories Views power as embedded within legal systems Considers the political, social and economic context of law Arose as a challenge to positivism Often influenced by Marxist ideas Feminism: understands law from a gendered perspective Identifies and problematizes the gendered nature of law and legal study First-wave feminist thought -focuses on women’s sufferage and legal rights Second-wave feminist thought- gender equality and reproductive rights  Third-wave feminist thought -diversity and bodily autonomy Normative claim- subjective claims Empirical claim- claims based on evidence Case1. Carter v. Canada -criminalization of physician assisted death -Carter suffered from immobilizing spine disease -Bill C14 medical assisted death (2016) Natural law theorist=>An illegitimate law as it conflicts with morality, only God or a supreme being can decide when an individual dies, its a sin to take away people’s lives. Life is sacred. Legal positivist=> Yes, as long as it is allowed by the law and lawful legislative process is followed. No reference to morality. Legal realist => Depending but the decision would focus on the outcome and contextual factors eg. economy at that time. Legal realists consider contextual factors such as public opinion and health benefits when assessing laws. Marxist=> Depends if suicide helps the economy eg. effects on labour, resources, production. Critical Legal Theorist=> Looks at power, positions in society (privileges), class gender, social (social bias) and economical context. Feminist=> Yes, People, especially women have rights to their own body. Looking at gender statistics of diseases which might require assisted death. Case 2. The Cannabis Act Natural law theorist=> Becsause it is a drug, it could interfere with the natural way of thinking. Legal positivist=> Yes, because it is legal but legal process must be followed. Legal realist=> Based on Public opinion. May apply harm reduction, May also look at health benefits of Cannabis. Law as the outcome? Marxist=> Drugs are used to pacify proletariat. Decision must be anchored around socio economic status. Marxists believe that drugs are utilized to pacify the working class, maintaining control over the proletariat. Critical Legal Theorist=> Looks at who this law is targeting. Law for what and for who? -> who does the law give advantage/ disadvantage to? Feminist=> Cannabis can be used as an ailment. Cannabis can also affect women’s lives negatively eg. connection between drugs and DV Topic 2: The Historical and Institutional Context of canadian Law An Early History of Law 4000 years ie, Hammurabi, Mohhamad, Confucious 15th-16th century Europe->Feudal Law 1215-> Magna Carta -addressed some of the abuses under feudalism -limited authority of monarchy 1648 Peace of Westphalia: A series of treaties which ended the wars in holy roman empire and between Spain and Dutch. It gave sovereignty to states and ended religious wars Legal History of Canada The Royal Proclamation of 1763 - Britain won control of French territories in North America. “Canada” becomes a colony of Britain. Quebec Act 1774 - Passed by the British Parliament to address the governance of the French-speaking population of Quebec. Implemented French civil law in Quebec to affirm French identity. The Constitution Act 1791 - Divided Canada into Upper and Lower Canada. Introduced parliamentary government for both regions as to avoid tensions between French and English settlers. Act of Union 1840 - United Canada The British North American Act 1867 (also called section 91) - Created the Dominion of Canada; - The legal basis of Canada, It established a federal system, dividing powers between the federal government and provincial governments.(Division of Powers) The Criminal Code 1892 It consolidated and standardized criminal laws across Canada, Statute of Westminer 1931 - Canada becomes self governing Dominion - “Crown split” The constitution Act 1982 - Patriated the Constitution (making Canada responsible for their own Constitution), making it separate from Britains - Included the Canadian Charter of Rights and Freedoms - Included amending formulas -To amend parts of the Constitution using the 7/50 formula, the following is required: 1. Approval from the federal Parliament (House of Commons and Senate).  2. Approval from at least 7 provinces, representing at least 50% of the total population of Canada. - Types of Canadinan Law Public Law: Area of law concerned with public interest eg. Constitution law, criminal law, taxation Private Law: Area of law concerned with legal disputes between individuals eg. tort law, contracts, family law Substantive law: area of law that governs society; anything but procedural law Procedural law: the area of law governing the rules of law and the procedures of the legal system I,e Sentencing Sources of Canadian Law Principal sources: Legislation/statute law- created by a legislature Case Law/ Judicial decisions- established by Judicial decisions Subsidiary sources: Customs- derived from customary practice Book of authority- authoritative texts on legal principles by scholars Indigenous Law 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 laws are transformed into Canadian legal form On-reserve jurisdiction emanates from federal delegation -Indian Act of 1876 -First Nations Land Management Act  Topic 3: Constitutions and The Constitution of Canada Constitutions- The foundational charter and supreme laws which form the basis of legal systems and political society =>foundational charter- outlines the given rights and freedoms by a sovereign state Constitutions tend to: *express founding principles and shared values * establish political system *establish fundamental laws in society *give power to certain actors/institutions eg. government *limit the power of government *outline basic rights and obligations of citizens *highlight a particular history *contains aspirations Constitutional design- the particular features of constitutions ->some are written, while others are not ->some are short, some are long ->most of them are difficult to change ->an amendment process must be followed ->many specify judicial review=> If a law or action is found to violate the constitution, the court can declare it invalid or unconstitutional. ->many omit political structures and legal processes Diffusion of powers: essential for power check and balances Horizontal diffusion- This refers to the separation of powers across different branches of government: the executive, legislative, and judicial branches (including judicial review). This ensures that no single branch has all the authority and that they can check and balance each other. Legislative-include MPs (lower house), Senate (upper house) and govt gen; create bills that turn into laws Excecutive- include the PM, his cabinet and govt general; enforce laws Judicial- include supreme court withn 9 justices, provincial court, and military court Vertical diffusion- This refers to federalism, where power is divided between different levels of government, such as national (federal) and subnational (provincial or state) governments. Each level has a degree of autonomy with specified jurisdiction. =>provincial states are responsible for roads, hospitals while federal is responsible for criminal laws, money, fishing, international trade, immigration Unitarism- a political system in which all the governing power is concentrated in a central authority, rather than being shared or distributed across multiple levels of government, like in federal systems. In a unitary state, the central government has the ultimate authority and can delegate powers to local governments, but these powers can be taken back at any time. Local or regional governments, if they exist, operate under the central government's control and do not have constitutionally guaranteed powers. Asymmetrical decentralization-refers to a system where different regions or subnational units within a country are granted varying degrees of political or administrative power, rather than having a uniform level of authority across all regions. In this arrangement, some regions may have more autonomy or control over certain matters, such as education, health, or taxation, while others may have less. The British North America Act 1867- established Canada as a federal state; established Canadian Federalism Section 91- outlines federal power- makes federal government responsible for criminal laws Section 92-outlines provincial power Section 36- sets out equalization payments between provinces Pre Charter- Canadian bill of rights 1960 The Constitution Act of 1982- Patriated Canada, Quebec never signed -includes the charter of rights and freedoms -includes amending formula Section 38- “7/50” rule Section 41- Unanimous consent rule Section 43- regional amendments (changes to specific provinces) Sections of Charter of rights and freedoms Section 1- limitations clause, rights and freedoms are not without limits Section 2- fundamental freedoms Section 3,5,6- basic rights of canadians Sections 7-14- legal rights of canadians Section 15- equality rights of canadians Section 16-23- minority language rights 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 government) Section 33: Notwithstanding clause; Section 33(3) limits the clause to 5 years -gives federal and provincial governments the power to temporarily override certain rights and freedoms guaranteed by the Charter. This clause allows legislatures to pass laws that may violate specific Charter rights for a limited time. Meech Lake accord- quebec is special and can veto stuff, they also have more say in senatorial positions, affirms french identity Charlottetown accord- tried to be like meech lake accord but included more diversity and opinions from indigenous people -not implemen ted as 54% of people voted against it  Topic 4: Canada’s Court System Canadian Court Systems are central to: 1) Dispute resolution 2) Dispencing justice 3) Enforcing contracts 4) Answering legal questions 5) Enforcing the constitution 6) Creating case law 7) Setting directions in society towards social control Structure of Canada’s court system Characteristics of Canada’s court system Alternative dispute resolution in Canada 10/30: International Torts Intentional tort: torts that occur as a result of intentional physical or mental harm to someone -there are different standards between international tort and negligence -strict liability Defences in intentional tort law include: Consent -can be explicit and implicit Self defense (section 34 cc) and defense of property Legal authority- eg. a police officer discolates someone’s neck while arresting a person Negligence 1 =the failure of an individual or organization to meet a standard of reasonable care, resulting in the injury of someone Duty of Care= a legal obligation in a specific context ->the degree/level of care a reasobale person would apply in a specific context is called standard of care Reasonable person- someone who would not be expected to be negligent under specified circumstances Eg. Owner putting up a high enough fence for a pet to not jump over Causation-links between breach of obligation and injury outside of the incident ->remoteness needs to be demonstrated for the tort law to be applicable Negligence 2 More v. Bauer Nike Hockey Inc. (2011) - Plaintiff claimed that the standard of care is insufficient - Court claimed that the company met the duty of care (through label warnings) and standard of care Buchman v. Ortho Pharmaceutical (Canada) Ltd. (1986) - woman suffered a stroke due to oral contraception pills - Duty of care Mustapha v. Culligan of Canada Ltd (2008) - Plaintiff sued for psychological injury as a consequence of seeing a fly from an unopened and unconsumed Culligan water bottle. - Plaintiff claimed a depressive disorder as a causation from the incident - Foreseability was not established Denfences to Negligence Contributory negligence- When the other person gets hurt Accident- Voluntary assumption of risk- When I get hurt Participation in a criminal Act King v. Redlich (1984)- Voluntary assumption risk - Plaintiff was hit in the head with a hockey puck while playing recreational hockey which resulted in serious brain injury - The charge was dropped because he wasn’t wearing a helmet Voluntary assumption of risk vs Contributory Negligence Punitive Damages= damages awarded in tort law beyond what is necessary to compensate the injured -criticized for potentially duplicating sanctions with criminal law (double punishment) Whiten v. Pilot Insurance Co - 11/18-Monday Topic 8: Administrative Law Administrative- law regulating the relationship between the government and the public; a principal form of public law -> administration is treated like court in terms of fairness and equality -includes law delegating bureaucracy and various government-appointed administrative bodies ->authority is governed by legislation to the t, they cannot make decisions by themselves (cannot step out of constitutional outlines) -governed internally (provincial cannot appoint bureaucratic powers on federal level) -powers are delegated/differed to cover niche area *no overarching legislation defining administrative law- not included in the constitution Eg. Canadian Human Rights Tribunal, Canadian Human Rights Commission, Delegation- the transfer of federal or provincial duties/authorities/powers to non-elected administrative bodies Inter-delegation- when federal government delegates Administrative Bodies and Judicial Review Judicial Review: When a court determines whether a decision made by an administrative body was made intra or ultra vires Saumur v. City of Quebec - Granted chief of police power over - Illegal delegation of authority 11/29 Friday Topic 10- International Society Components of International Society ll Balance of Power: the tendency of states to internally or externally balance of power of other states -includes nuclear weapons and security alliances Power of Imbalances: major asymmetrical material (military and economic) capabilities and international influence -divided into great power, middle power and small power states -includes Global North and Global South International civil society: includes international non-governmental organizations (INGOs) eg.Doctors without borders, Red Cross, Amnesty Int. ->important “whistleblowers” How do we assure balance post ww2? -economic connections i.e trade systems and trade wars -mutually assured destruction through nuclear weapons The United Nations -A central component of international society -Intergovernmental (not supranational) ->can’t tell nations what to do, just a coordination mechanism, holds space for nations to hold agreements, engage in diplomacy, discuss international problems eg.human rights, sustainability -> does not make laws, or police ->can’t change a nation’s law ->not a government -cannot kick out nations ->most of the time, UN membership dictates which nations are sovereign -microcosm of international relations Why is it -League of nations did not have universalism The Charter of the United Nations Signed in 1945 by 51 states A legally-binding treaty and a foundation of international law A basis of the post-World War ll int barter Created the United Nations Codified basic principles of international society i.e. legal sovereign equality amongst states, the prohibition on the use of force, self-defense,respect for human rights *no use of force allowed unless otherwise allowed by United Nations security council *can use violence only for self-defense not revenge ->collective self defense ->coalition of the willing Violations eg. Russia attack on Ukraine * After lecture qs: -how can UN implement orders without police->yt - 12/06 Topic 11:International Law Customary International law- implied consent, Soft law- non legally binding, most of UN laws Hard law- legally binding The Law of State Jurisdiction -reach of legal Prescriptive jurisdiction principles Territoriality (includes land, air and territorial sea) Nationality Universality Passive personality (victims are nationals) Special state interests (i.e.production of counterfeit currency) Enforcement jurisdiction principles Territoriality -Concurrent jurisdiction is common Enforcement-multilateral through sanctions (needs to be legal) or unilateral Final exam -Thursday, december 12 9am-11am -60 mc questions -30 repeats -less cases (tort law, morgan, tribones, family law and administrative law) -extra questions from court systems -10q from criminal law -8-10q int society/int law