LAWS1001 Intro to Legal Studies !

Max weber definition of law

law is externally guaranteed by the probability that coercion brings about conformity or avenges violation

System of law

Law is a formal system including rules, enforcement, and authority

Social control aspect

Law defines boundaries of relationships by government and people

Allocating authority aspect

Law needs to provide authority to enforce the rules

Dispute settlement aspect

Law settles everyday disputes

Law evolutionary stages

Primitive, transitional, modern

Cheyenne example

Borrowing horse as dispute resolution

Quebec (Bouchard)

Open secularism

Who adopted common law

British

Common law

System of law based on precedent

Who adopted civil law

French

Civil law

System of law based on reasoning/interpretation

1763 Royal Proclamation

Protection of indigenous rights

Quebec Act 1774

Preserves French civil law

Act of Union 1840

Rep gov introduced

What was the Constitution Act originally called

British North America Act

Constitution Act 1867

Recognizes Canada as a country

Statute of Westminster 1931

British court law not applying in Canada

Patriation of Constitution 1982

changes to constitution and creates formal Canadian laws

Constitution

Supreme law of Canada for rights

Legislation

Relates to public and private law in all of Canada

Regulations

Binding rules only if you apply

Royal prerogative

Authority of British Crown

What is Canada’s legal system

Bijural system (common and civil)

Why is Law necessary

People authorize the state to exercise authority over them

Types of constitutions

Unwritten, written, hybrid

Unwritten constitution

Few written documents, flexible but less certain

Written constitution

All rules in one document, strict but more certain

Hybrid constitution

Includes documents but also unwritten principles

3 elements for constitutional convention

Practice, acknowledged by parties affected, supported by reason

Roles in Canada through constitution

Defines relationship between executive, legislature and judiciary

Executive role in constitution

section 9 of constitution: crown vs government

Legislature role in constitution

section 17 of constitution

Judicicary role in constitution

section 101 of constitution

representative democracy in constitution

section 37 of constitution

responsible government in constitution

preamble section of constitution

parliamentary supremacy in constitution

also in preamble section of constitution

constitutional supremacy in constitution

section 52 of constitution

judicial independence in constitution

sections 96 and 11 in constitution

section 91 of constitution

powers of federal government

section 92 of constitution

powers of provincial government

Natural Law Theory

The link between law and morality, provides justification for obeying law

Critiques of natural law theory

morality is too subjective

Legal positivism

Law as a system of commands, focus on what law is

Critique of legal positivism

Ignores concept of justice

Legal liberalism

Individual agency, law should act neutrally to be equal

Critique of legal liberalism

Law is not always neutral

Latimer’s defence of necessity

Compliance with law is impossible and harm caused cannot be disproportionate to harm avoided

Legal realism

Judges decide law from personal interpretation

feminist legal theory

Legal structures create and reinforce patriarchy

Conflict theory

Law promotes interest of ruling class and creates inequality

Legislative process

first reading, second reading, hearings, report, third reading

2 ways judges make law

interpretation and changing common law

Process of rights

application, infringement, justification, remedies, override

3 problems with charter

Charter rights are not absolute, subject to override, broad language

Hak v Quebec

Quebec prohibits religious symbols, seen as violating rights, court dismisses claims because of section 33

Section 33 of Charter

Notwithstanding clause