Common law as discursive problem solving (Sept 8th)

Four characteristics criminal law

1.Criminal law is discursive (isn’t just a set of fixed rules, criminal law is about the dicussions and narratives that define what counts as a crime, it’s created, explained and argued through conversations)

2.Criminal law is rooted in history

3.Criminal law is political

4.Criminal law is based on the liberal principles

What are 3 elements of criminal law being discursive

1.  Made up of a series of specific cases or stories about a social problem between people 

2.  Resolve that conflict between those people with more talking 

Since it’s discursive, it also gives us a window into the politics of the day and who has power

R. v. Dudley and Stephens (1884)

John Henry Watt buys a mignotte boat in England but lives in Australia, he wants to transport it there so he hired Captain Dudley, Ableboded seamen Stephens, seaman Brooks and cabin boy Parker 

• Dudley doesn’t fix up the boat because he wanted to keep more money, they end up shipwrecked and are now in a lifeboat with no water or food, they start to drink their own urine and talk about cannibalism but Parker gets really sick.

• They talk about eating Parker to survive, Dudley and Stephens kill Parker but Brooks disagrees

• They all eat him and get rescued 5 days later

• Dudley and Stephens are charged with murder 

Legal Issue: Is there a defence of necessity?

Finding: convict and are sentenced to death by hanging 

Decision: D and S convicted of murder

Reasoning: There is a defense of necessity 

How does R v. Dudley and Stephens demonstrate how politics and power play out

Second Industrial Revolution – lots of conflict between elite factory owners and new working class
- Elites don’t want to encourage working class or give the workers any power that could be used against elites – court convicts D&S and sentences them to hang
- Workers protest – Government commutes sentence to 6 mo. Imprisonment to appease
protestors/make conflict go away

Doctrine of precedence

 judges/courts decided disputes by referring to decisions in past disputes that were similar to establish rules for future disputes 

Doctrine of Stare Decisis

lower courts have to follow the decisions of higher courts 

How is criminal law rooted in history 

Britain was an island of independent kings and principalities
- William the Conqueror defeated Harold and the other English kings, giving him the
monopoly over the use of force (MOUF)
- William the Conqueror used the common law to legitimize that MOUF by [doing what?]
sending out itinerant judges to resolve all disputes – this meant old authorities were no
longer able to govern, people had to wait for judges to give out “King’s justice”
- Over time, to ensure the King’s justice was perceived as fair and gave people certainty,
two doctrines developed

1700s common law influenced by liberal thinking (see 4. below)
- When British first came to Canada, negotiated with indigenous peoples nation to nation
leading to treaty rights
- Common law brought to Canada by English settlers
2

- With colonization, used the common law as a way to assert control over indigenous
territory and (conquered) French territory
- 1867 – Confederation – criminal law a federal power – state building
- 1892 – Parliament created Criminal Code of Canada but it’s made up of rules developed
in the common law caselaw
- 1892-1955 – both Parliament and courts create new crimes
- 1955 – role of courts
o Can’t create new crimes
o Can create new defences
o Interpret crimes created by Parl
*still a common law jurisdiction even though we have a statutory Code

How is criminal law political?

Criminal law legitimizes state’s MOUF/violence as authority/ the state has the legal right to use force or violence (police arresting someone, prisons taking away freedom)

How is criminal law based on the liberal principles

1. People are rational (they think about costs and benefits before acting) and mostly self-interested (they want to do what benefits themselves).
   
   2. If there were no laws, people could hurt or steal from each other to get what they want. That would reduce everyone’s freedom and safety.
   
   3. To avoid this, people agree to let the state (government) be the only one allowed to use force (like punishing criminals). This keeps others from harming you, so you have more freedom to live your life.
   
   4. But when the state punishes, it also takes away freedom or property — so it should only punish people who are truly responsible for their actions (who actually committed the act and intended to do it).
   
   5. Because the state has so much power, the law must set strict limits on when and how the state can use force — especially against accused people, since they risk losing their freedom unfairly.
   
   6. In the end, criminal law’s main job is to protect individuals: both from other people’s harm and from the government’s abuse of power.