Unit 1 - Law

What is the difference between rules and laws?

• Rules are not created or enforced by the government and they apply to specific people in specific places

• Laws are a set of rules created by and enforced by the government and they apply to everyone equally

What is the rule of the law?

• Is the government of law and not of people

• ‘Rule of Person’ - monarchy, tyranny, theocracy

• States that society is governed by law, no person or government is above the law, and no one in our society has the right to exercise unrestricted power to take away our rights except in accordance with the law

What is the Hammurabi law code?

• one of the earliest known sets of of recorded laws

• written by King Hammurabi of Babylon

• laws were based on retribution (eye for an eye) and restitution

• made people pay for their actions

• influenced the structure of Canadian law

What is the Mosaic law code?

• biblical or hebrew law found in the book of exodus

• based on Christian and Jewish faith and the 10 commandments

• punishment was severe

• based on concepts like justice, equity, and the rule of the law

What is the Greek law code?

• first form of democracy was born in Greece

• citizen involvement was fundamental

• citizens could vote and had to perform jury duty

• led to present day juries and sentences

• created the idea of democracy

What is the Roman law code?

• laws must be recorded and cannot be left up to judges alone

• based on codified law (twelve tables)

• promoted public persecution of crimes, victim compensation and protected the lower class from abuse of the upper class

• this is where lawyers were first seen

• reflected the patriarchal society

• lead to creation of modern day lawyers

What is the Justinian law code?

• justice comes from Justinian

• formed basis of civil law

• can be found in the laws of European countries, especially France

What is the Napoleonic law code?

• aka the French Civil code

• created to unify the country after the French Revolution

• represented compromise between Germanic law and Justinian code

• really popular because the law made it accessible to public

• regulated civil matters

• influenced civil law systems of countries in continental Europe

• useful in the French Republic

What is the difference between retribution and restitution?

• retribution: an eye for an eye and is intended to punish the person for the crime they committed

• restitution: is compensation and is intended for the person who committed the crime to compensate their victims for the harm done

What is habeas corpus?

• it is latin for “you must have the body”

• designed to prevent unlawful arrest by ensuring that anyone detained is charged before a court within a reasonable amount of time

What is Early British law?

• developed when the Romans conquered Great Britain

What is trial by ordeal?

• required a person to undergo torture to determine guilt or innocence

• used only when the death penalty was the sentence

• many types: trial by hot iron, hot water, cold water etc.

What is trial by oath helping?

• requiring friends of the accused to swear on the Bible that he or she was innocent

What is trial by combat?

• determining innocence by having the parties fight a duel

What is the adversarial system?

• the judicial process whereby evidence is presented by two opposing parties to an impartial judge or jury

What is the feudal system?

• a system of land ownership

• divided Britain into parcels of land

• each parcel was controlled by a nobleman and everything within belonged to the nobleman

• resulted in great discrepancies - no rules of evidence and no thought of the rights of the accused

What is divine right?

• ties in with the feudal system

• the concept that monarchs and their successors derived their power to rule from God and were accountable only to God

What is common law?

• law developed in English court that relies on case law and is common to all people

What is assizes?

• travelling courts

What are circuit judges?

• judges of travelling courts

What is case law?

• a method of deciding cases based on recorded decisions of similar cases

What is stare decisis?

• a latin phrase meaning “to stand by the decision”

What is the rule of precedent?

• applying a previous decision to a case that has similar circumstances

What is constitutional law?

• the body of law that determines the structure of the federal government

• divides law making powers between the federal and provincial government

• limits the powers of government by setting out certain basic laws, principles, and standards that all other law must adhere to

• overrides all other laws

• any law not in accordance with the constitution will be struck down by the courts as unconstitutional

What is statute law?

• these laws are passed by elected representatives

• acts are passed into law in Parliament or provincial legislatures

• many laws today are statutes (common law decisions that have been codified)

• statutes override common law

• common law only prevails when no stature law exists

• when a judge interprets and applies a statute law the decision sets precedence

What is common law?

• common to all and constantly evolving

• aka case law because its sources include decisions made in previous cases

• lawyers also look for favourable precedents to argue the outcome of cases

• rule of precedent doesn’t always apply

• a case may be sufficiently different warranting a different decision (distinguishing a case)

What is international law?

• governs the conduct of independent nations in their relationships with one another

• international treaties or agreements are binding

• some organizations have international legal status (develop laws and act as a court to settle disputes-UN and ICJ)

• The ICJ: has two roles, settle legal disputes, given advisory opinions on legal questions

• international law power is limited

• there is no international police to enforce an international system of law

What is domestic law?

• law made and enforced within a nations borders

• each country creates its own law

• once out of Canada the laws won’t protect us

What is procedural law?

• methods of enforcing rights, duties, and responsibilities found in substantive law

• “how the trial is conducted”

• ensures that all citizens are treated fairly

What is substantive law?

• defines the rights, duties and obligations of citizens and levels of government

• the right to own and protect property, to enter a legal contract, seek remedies if contract is broken

• “right to a fair trial”

What is public law?

• regulates relationships between government and its citizens

• public laws are subject to the charter of rights and freedoms

What is administrative law?

• law related to the relationship between people and government departments, boards and agencies

• affects everyday lives of Canadians

What is criminal law?

• identifies crimes and prescribes punishments

• all crimes are listed in the Criminal Code of Canada

• only the Crown attorney can lay a criminal charge

• only federal government can pass criminal legislation

• all provinces and territories have the authority to administer criminal law

What is private law?

• aka civil law

• legal relations between individuals and individuals/organizations (NOT THE GOVERNMENT)

• main purpose is to regulate conduct and compensate those who have been injured by the wrongful actions of others

• 6 sections: tort, contract, family etc.

What is tort law?

• demands large sums of money for harm, pain and suffering and financial loss due to careless actions of others

What is contract law?

• everyday transactions where people buy or provide goods and services

• if satisfied with purchase/service they pay

• if unsatisfied with purchase/service they can go to court

What is family law?

• marriage, property division when separating, custody/child support and divorce

What is wills and estate law?

• laws governing life from birth to death

• division of property

• legal and binding wills about how estate/assets are divided upon death

• will can be challenged under estate law

What is property law?

• regulates property ownership rights including the ownership and transfer of real estate

What is employment law?

• relationships between employer and employee

• both provincial and federal laws

• ex. minimum wage, safety rules, child protection

What is the structure of government? (basic formula*)

• executive: the prime minister and his cabinet that suggest laws

• legislative: the parliament made up of the House of Commons and the Senate that passes the law

• judicial: judges that are independent from the executive and legislative branch that make decisions on disputes, interpret laws and the constitution

• basic formula: laws are suggested by the executive branch, passed by the legislative branch and interpreted by the judicial branch

What is the purpose of government?

• an organized system of decision making to provide a sense of order and security

• make and carry out laws

• allow people to maintain their sense of individual freedom

• constitutional monarchy with representative democracy

• provide efficient and effective mechanisms for running the country

• protect individual rights and freedoms

• maintain infrastructure and deals with other countries

What is Canada’s constitution?

• sets of rules for government to follow in decision making

• contains written and unwritten parts

Where did Canada’s constitution come from?

• written parts:

  • Constitution Act, 1867 (formerly BNA Act)

  • Constitution Act, 1982

  • Charter of Rights and Freedoms

• unwritten parts:

  • courts interpretations of the constitution

  • traditions

  • British parliament

What does section 91 of the Canadian constitution grant?

• grants the federal government power over issues concerning Canada as a whole

• ex. trade, criminal law, citizenship

What does section 92 of the Canadian constitution grant?

• grants provinces authority to pass laws concerning education, property and civil rights etc.

• each is supreme in its area of jurisdiction

• provincial government can make laws so long as they don’t interfere with the federal government

How is a law enacted? How a bill is passed in Canada

• Ideas: created by royal commission, individual or interest groups, advisory boards, ministers initiatives

• Drafting: bill is crafted and distributed to parties

• First Reading: bill is introduced and given first reading, minster discuss purpose of bill, background information is given to opposition, bill is printed and distributed then a vote is held

• Second Reading: principle of bill is debated, minister may make a speech to open the debate, each member can only make one speech, bill may be referred to committee for revision and examination then a vote is held

• Third Reading: debate is restricted to contents of the bill, no amendment can be moved then a vote is held

• Royal Assent and Proclamation:

  • federal bill: steps are repeated in the senate and then sent to the governor general for royal assent and proclamation

  • provincial bill: given to lieutenant governor for royal assent and proclamation

Where can our jury system be traced back to? (example test question)

• Athens, Greece

What were the great laws of manu?

• Indian laws transferred through oral tradition

What is the code of Li K’vei?

• Chinese laws dealing with theft and robbery

Explain one of the main rights and freedoms in the Canadian Charter of Rights and Freedoms. (example test question)

• Fundamental: include freedom of conscience and religion, freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication, and freedom of peaceful assembly and association

• Democratic: These rights ensure that Canadians can participate in the democratic process. They include the right to vote in elections and to run for office.

• Mobility: These rights guarantee that Canadian citizens can move and reside anywhere within Canada, as well as the right to enter, remain in, and leave Canada.

• Legal Rights: These rights protect individuals in their interactions with the legal system. They include the right to be presumed innocent until proven guilty, the right to a fair trial, the right to be informed of the reasons for arrest or detention, and the right to legal representation.

• Equality: These rights ensure equal treatment under the law without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.

• Language: These rights protect the linguistic rights of English and French-speaking Canadians. They include the right to receive government services in either English or French, as well as the right to have court proceedings conducted in either language.