Nature and Origins of the Law

class 2

nature or origins of the law

a universal feature of human society is conflict

law is a system for _____

resolving disputes amongst individuals and disputes between the individual and the state

law is …

a rule of set of rules governing a oersib’s conduct

who enforces the law

the police, individuals themselves, specially appointed administrative tribunals

predictability vs flexibility

need the law to be predictable which creates a peace keeping function, need laws to be flexible in order to keep up with social changes in morals in order for them to be reflected in our laws

how is flexibility achived

1. judicial interpretation of the laws

2. parliament passing statues to replace existing common law of statute law.

purpose of the law

protection of people property and goods, upholding public morals, regulate businesses, protect the ruling class, resolve conflict

sources of law

civil code (operated in Quebec and France where the laws are all codified), common law (all of canada, case law/judge made law, based on a system of precedence, judges develop principles of law which are used in cases), the constitution (highest source of law which all other laws draw their power from, charter of rights and freedoms aka freedoms, legal rights and equality rights), statute law (legislation made by federal, provincial and municipal governments, overrides all common law on the same point aka flexibility, regulations), Custom (originally all laws were based on customs), Legal texts (well know people are quoted in the courts for their interpretation of the law)

Stare Decisis

A doctrine, meaning something that we have to apply and follow. I

if the facts fit, the principle is applied. If not, the principle may be extended

common law: strength of precedent depends on several factors

jurisdiction, number of cases stating the principle, level of court, new case vs old case, nature and subject matter of case, unanimous or dissent, stage of proceedings

Ratio decidendi

the principle that the case was decided upon

Obiter dictum

a judges expression of opinions, not essential to the decision and not establishing precedent

why have stature law when we have case law

codification, change in existing common law, update the law when its evolution is too gradual to keep up with the modern world

divisions of the law

substantive (cases and statues specifying a persons rights and duties such as the right to vote, to own property, contract, etc) and procedural law (the process by which rights are protected and duties enforced such as the right to appeal rights and arbitration