Chapter 2: Common Law, Civil Law, and Indigenous Legal Systems

Stare decisis

stand by decisions and not disturb the undisturbed”

Adversarial system

1.Two parties battle to win the case

2.Rules of evidence and procedure must be followed

3.Judge and jury are impartial arbitrators

Roles of the parties

•Each party controls their own case

•Decide how evidence is presented

•Known as ‘Party Control

Role of Judge

• The judge must keep the contest fair and impartial

• Decides on admissibility of evidence

• Decides on questions of law

• Ensures burden of proof is discharged

• Decide the case when there is no jury

• Sentence accused in criminal cases

Burden and Standard of Proof

• Burden lies with person bringing the case

• Criminal – prosecution

• Civil – plaintiff

• Standard is the strength of proof required

• Criminal – beyond reasonable doubt

• Civil – on the balance of probabilities

The need for legal representation

• Ensure parties are able to present their best case

• Familiar with rules of evidence and procedure

• Aware of people’s legal rights

• Assist in achieving a just outcome

Indigenous and Aboriginal Law

TRC, MMIWG & UNDRIP

Together, these three documents

– the TRC, the MMIWG Report, and UNDRIP

– speak directly to the rights of Indigenous Peoples to maintain, control, identify, and protect their cultural heritage

Look for leading cases

When searching for cases your object is to locate leading cases. Look for

1. Recent cases at the highest court possible for the jurisdiction

2. Cases that have been discussed extensively in the commentary

3. Cases that have been followed or considered in other cases

Ways of Avoiding Precedent

1. Reversing

2. Overruling

3. Distinguishing

4. Disapproving

Overruling a precedent

Superior court not bound by decisions of lower court

Can overrule decision of the lower court

A higher court in a different, later case overturns a principle laid down by a lower court.

Creates new ratio decidendi

Creates new precedent for future cases

Distinguishing a previous precedent

Facts of the current case may differ from the case that established the precedent

If so Judge can decide court is not bound by the previous decision

Bijural

term describing the Operation of two, legal systems in one jurisdiction, such as the common law and civil law systems in Canada

Common law

the English legal tradition, that relies on precedent rather than on codified rules; may also refer to rules as distinguished from equitable principles, or case law as opposed to legislation

Civil Law

A system of law based on codified rules; may also refer to private law

Indigenous law

law of Indigenous peoples within states, as distinct from states’ laws in relation to them

Feudalism

socio-political system in medieval Europe based on relationships of obligation and allegiance among king, nobles, and subjects

Chancery

Department of state established by English monarchs to assist with legal matters

Kings peace

a peace the English monarch was expected to uphold and protect

Writ

A formal written order issued by a court, commanding the party to whom it is addressed to perform or refrain from performing a specified act.

Court of Kings Quebec

English court that decides criminal matters

Court of Chancery

English court, separate from common law courts

Equity

Legal decisions by the judges in the court of chancery based on fairness and providing relief

Inns of Court

Lawyers in England and wales

Binding

Higher court decision that a lower court has to follow according to principle of stars decisis

ratio or ratio decidendi

reason for the decision made by a court, which establishes a legal precedent.

Distinguishable

A legal principle that allows a court to avoid following a precedent by identifying significant differences in the facts

persuasive

may influence a court's decision, often based on decisions from lower courts or courts in other jurisdictions.

Bill of rights (1689)

declared that the “pretended”

power of the Crown to legislate without the consent of Parliament was illegal.

civil code

authoritative legislative establishment of a country’s private law

Corpus Juris Civilis

a fundamental collection of laws compiled under the direction of Emperor Justinian I in the 6th century, serving as the basis for many modern legal systems.

What does “bijural nation” mean?

A nation that recognizes and incorporates multiple legal systems, such as common law and civil law, within its jurisdiction.

Why is it important to be aware of legal traditions other than our own? Give at least three reasons.

- fosters respect for cultural differences

- enhances conflict resolution by recognizing various legal perspectives

- and promotes better collaboration in international legal matters.

Explain how the common law developed in England.

through a series of judicial decisions and precedents established by judges over time, which created a body of law that was consistent across the kingdom.

What are the five main sources of Indigenous law?

• oral traditions

• customs

• treaties

• legislation

• court decisions.

English court of Chancery

A court that developed in England to address issues of equity and fairness, supplementing the rigid rules of common law by providing remedies beyond financial damages.

Main sources of Indigenous Law

1. Oral traditions

2. Customary law

3. Treaties

4. Legislation

5. Judicial decisions

Call to action 45

Proposes to strengthen indigenous legal traditions in Canada by encourage their recognition and incorporation

How did common law and civil law in Canada harmonize

• legal pluralism

• Unified legal codes

• Judicial training

What happened in SSC reasoning in Marshal and Bernard Cases

The Supreme Court in Canada reasoned indigenous people had rights to engage in their ancestral trading practices.

Orbiter dictum

Literally said things by the way and opinion of the judge

Reversing a precedent

A higher court in the same court overturns a principle provided by a lower court

Higher court in overturning a precedent

Later the case overture a principle laid down by a lower court

Distinguishing a previous precedent

Facts are different

Strengths of law making by courts

• Making a law quickly

• it’s independent

• flexible

• consistent and fair

• Develop areas of law