Introduction to Law and Canada's Legal System

Flashcards covering key concepts from an introductory law lecture focusing on Canada's legal system, including the nature of law, legal philosophies, institutions, federalism, and the Charter of Rights.

What is law?

Law is a subset of rules differentiated by formalities of documentation and enforcement.

What are physical laws?

Laws of nature in physics, chemistry, and biology (e.g., gravity).

What are normative laws?

Rules governing human conduct made and/or enforced by humans (e.g., laws against stealing).

What differentiates law from normative rules?

Laws are created by formal processes of enforcement and adjudication, often possessing sanctions for violations.

How are laws related to politics?

Laws are not value-neutral and stem from the political/philosophical values of the lawmaker.

What are the two parts of the legislature in Canada?

Legislative assembly (elected politicians) and the monarch (Queen Elizabeth II, governor general, or lieutenant governor).

What is jurisprudence?

Legal philosophy or case law that is a manifestation of politics or larger schools of thought.

What are the three main schools of jurisprudence?

Natural law, legal positivism, and legal realism.

What does the old school of natural law (classical conservatism) believe?

Law should be based on eternal fundamental truths inspired by God, perceived in history, customs, and scriptures.

What does deistic natural law believe?

Basic principles of justice are derived by rational people applying reason and logic to their perception of the world.

What is legal positivism?

Concerned only with "What is the law?" and aims to be value-neutral by identifying legal principles.

What are the two steps to the legal positivism process?

Locate the holder of power (sovereign) and identify/interpret the law as created by that authority.

What is Legal Realism concerned with?

Concerned with "Why is the law what it is?" – using positivist techniques (scientific method) to understand why laws are created.

What are the purposes of law in society?

Law provides consistency and guidelines to follow and regulates society to avoid conflict by providing order to relationships (economic and property allocation).

What is a liberal capitalist society?

Economic analogue of liberalism driven by profit and exchange in a market economy with private property.

What is Marxism?

Equality of condition: Private property and capitalism are tools of economic oppression that should be eradicated.

What is Jeremy Bentham's principle of utility?

The greatest happiness of the greatest number.

What is Social Engineering according to Roscoe Pound?

Scientific study of people's needs and values to make rational adjustments to improve society.

According to Roscoe Pound, what is the relationship between law and society?

Does the law influence societal development or reflect changing values?

According to Roscoe Pound, can scientific methods improve the quality of law-making?

Can scientific methods improve lawmaking, or are they neutral tools used by social groups?

According to Roscoe Pound, what is the potential danger of using scientific methods to improve society?

Could exposing society's ills with scientific methods destroy essential societal myths?

What institutions create law?

Courts, legislatures/parliaments, and delegate bodies.

What is Substantive Law?

The rights and duties a person has in society that may be enforced through the court process.

What is Procedural Law?

The process through which liabilities can be enforced by engaging the court.

What is Public Law?

Concerned with the conduct of government and relations between government and private persons.

What is Private Law?

Composes the rules governing laws between private persons when disputes arise.

What is Function of the Courts?

Mechanism for dispute settlement that creates legal principles.

Besides courts, what other institutes exist for dispute resolution that do not involve going to court?

Arbitrators, mediators, conciliation, and settlements.

What is Common Law?

Expositions of law as pronounced by courts of law based on previous principles (precedence).

What is Ratio Decidendi?

The narrowest and necessary legal principle upon which a decision was based.

What are the two types of cases in court?

Cases regarding legislation (statutes) and judge-made/common law.

What is judge-made/common law?

The law established by courts declaring the law in areas untouched by legislation.

What are judge-made/common laws subdivided into?

The common law and the law of equity.

How were common law courts organized?

Followed precedence; however, king retained authority invoked when common law courts could not uphold justice.

What did the Judicature Act create?

One set of courts simultaneously applying equity and common law principles.

What kind of laws do legislatures produce?

Statutes or acts.

What three institutions make up parliament?

Monarch, upper house, and elected assembly.

What is Subordinate Legislation?

Legislation made by a person or body other than the sovereign in parliament, due to powers conferred by statute or sub-delegation.

What are the various names for subordinate legislation?

Regulation, orders, rules, bylaws, or ordinances.

What is Ultra Vires?

Delegate bodies can only create legislation within the jurisdiction given by statutes.

What does delagatus non potest delagare mean?

Delegates can’t delegate their power.

Until the 20th century, what was the most significant institution for creating law?

The courts (judges).

In the early 20th century, what institution significantly increased its presence in law creation, reversing roles of law significance with courts?

Delegate bodies.

Why did legislatures win significance over court/judges?

Courts must wait for disputes to arise, whereas legislatures can proactively create laws.

What is a system by Black's Law dictionary definition?

A system is an arrangement of particulars into a whole based on a rationale or principle.

What are the two great legal systems in Europe?

Civil law and common law.

What is the essence of the civil law system?

The existence of the code.

What areas in North America observe civil law?

Louisiana and Quebec.

What is codification?

Collecting and arranging the laws of a country or state into a complete system of positive law that is scientifically ordered and promulgated by a legislative authority.

What is a critical weakness in the civil law system?

No doctrine of precedence.

To ameliorate difficulties, what practical amendments are made to Civil law?

Frequent revisions to the code based on decided cases and a growing application of precedence by the courts.

What area of law does the common law system applies to?

Applies to court-created law and certain statutory laws.

What doctrine has been used by the Common Law system for 1000 years?

The doctrine of stare decisis (precedence).

What aspects had to evolve before Common Law could be effective?

Literacy, publishing precedent cases (law reports), and widespread distribution of these printings.

What are the two aspects of the doctrine of stare decisis?

Definitional/substantial and structural.

What is the definitional/substantial aspect of Stare Decisis?

The principle of law is found in the precedence called the ratio decidendi.

What is the structural aspect of Stare Decisis?

Every court is bound to follow any case decided by a court above it in the hierarchy of courts.

What's the order of the jurisdiction court.

Trial court, appellate court, appeal court, and final.

Prior to 1949, what court was a binding precedence for common law?

JCPC (the judicial committee of the Privy Council).

What justifies the doctrine of Stare Decisis?

Organization principle of the common law system: historical and modern.

According to Samuel Freedman, what produces the rigorous application of doctrine of stare decisis?

Cases must have certainty, consistency, and continuity.

What factors led to the acceptance of the doctrine of stare decisis in the 19th century?

Industrial revolution, intellectual rationality/positivism, commercial printing development.

How are the Civil and Common Law Systems growing in similarity?

Convergence is occurring because civil law uses presidencies and common law uses codes.

What's an ADR?

Alternative Dispute resolutions that make final decisions, giving an individual ability to dissolve a dispute.

What are the 5 roles of the court?

Arbitrator of the constitution, interpreter of legislation, protector of civil liberties, arbitrator of disputes between private persons, and arbitrator of public law disputes.

In civil disputes, what is the characteristic of the Adversary System?

It is generally up to the parties (not the court) to initiate and prosecute litigation, investigate, and present facts.

What are the two assumptions when using the Adversary System?

The factual proof and appropriate law is more likely to emerge, and that the moral force, legitimacy, and acceptability will be greatest.

Why does the Adversary system not always work?

People aren't of equal means, lying, & self-interests can create abuses of procedures.

How is the court system organized according to the constitution?

The provinces have jurisdiction over the administration of justice, and the federal government has the right to appoint judges.

What are the three tiers of court in Canada?

Courts of 1st instance, Court of appeal, and Supreme Court of Canada.

Who may sue?

All legal persons may sue when one has special interest/right to remedy.

What is a Class Action lawsuit?

One individual represents a group or class of individuals with the same issues.

What is procedural law in terms of trial lawsuit?

How to engage the law and how to move it along.

What is the first step to engaging a court?

Plaintiff issues a statement of claims served to the defendant.

What is the second step to engaging a court?

Defendant issues/files a statement of defense.

What occurs within Examination for Discovery?

Each side gets to ask the other side relevant questions to get all case information.

What happens in a Pre-trial conference?

A judge meets with the parties to discuss the case and try to achieve settlement.

What happens during a trial?

Plantiff presents their case first, and trials can take days, weeks, months, years etc.

What basis do lawyers charge on?

Hourly rate or contingency agreement.

What is a constitution?

It creates the organs and institutions of the country that both create and administer law.

What is the Constitutionalism/Rule of Law?

Constitutionalism limits government; actors have authority only as permitted by law, and attempts to move past this are illegal.

According to DesSmith, what are constitutions primarily about?

Political power, location, conferment, distribution, exercise and limitation of power among the organs of the state.

What are the 2 sources of the Constitution?

Authoritative sources and Persuasive sources.

What are Athortative sources?

Create constitutional rules enforceable in the courts.

What are Perausive sources?

Create rules not enforced by courts but create conventions (rules that influence actors but are not enforceable).

What is Entrenchment?

There are certain provisions that are beyond the normal control and can only be changed by an extraordinary process.

What does De Jure mean?

At law.

What does De Facto mean?

In fact.

What does Patriated mean?

Amendment process for entrenched parts of the constitution are wholly domestic.

What institutions create constitutional law in Canada in Authorative Sources?

Legislatures, courts, and royal prerogatives

What is significant about United Kingdom Parliment?

Creates statues of significance to Canada.

What is significant abou Canadian Parliment?

Creates statues/laws relevant to the constitution.

What is significant about Provincial legislature?

Create constitutional law.

What is significant about Canadian common law courts, since 1982?

Interpret constitutional statutes.

What are Royal preroatives?

Residue of the legal power residing in the crown passing to the crown's representatives (e.g., appointing the prime minister, dissolving the elected assembly).

What does Persuasive Sources consist of?

Learned authors writings, Parliaentary rules/privilege, and relevant judicial decision.

What is Federalism?

Method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent.

What is true federal authorities are in a federal system?

Has legal guarantee of autonomy in their jurisdiction, are coordinate.

To be truly Federal, what requirement/method is required?

Requires a final arbitrator of constitution which neither level of government can control or appoint, and A method of amendment that isnt in level control.

Why might people believe Canada if a Federal country?

We are subject to jurisdictions and statutes, Statutes are entrenched by Federal government, The existense of the amending formed