intro to justice and law 1

Introduction to Justice & Law

  • Definition of Law:

    • Law is defined as rules that guide the regularity of behavior, encompassing natural laws like the Laws of Gravity and Evolution, as well as societal rules like the Rules of the Road.

    • The function of law is to make the universe intelligible, but law for human beings introduces complexities such as the concept of free will.

  • Development of Societal Law:

    • Origin of Law: Societal law develops over time and offers order, stemming from customs and leading to formal codification.

    • Law necessitates authority; it only exists where there is enforcement by an authoritative body.

  • Role of the State:

    • Law cannot be discussed without understanding the state, which is characterized by three key factors:

    1. Population: individuals residing within a territory.

    2. Territory: defined geographical boundaries.

    3. Sovereignty: supreme power or authority over the population.

Politics and Political Science

  • Definition of Politics:

    • Politics is viewed as the management of finite resources.

  • Scope of Political Science:

    1. Processes and Outcomes:

    • The field studies both processes (who engages in political actions and how) and outcomes (the laws instituted and their impact, including winners and losers).

    1. Justice:

    • The field examines questions of what justice means and evaluates the most just state, including the importance of courts and the law.

Canada's Judicial System

  • Overview of Judicial Structure:

    • Section 92 Courts:

    • Various divisions including:

      • Provincial Court: diverse functions including small claims, criminal division, family division, and juvenile division.

    • Canadian Constitution: Classifies courts into three types:

    1. Section 92 Courts: Provincially administered and appointed.

    2. Section 96 Courts: Provincially administered but federally appointed.

    3. Section 101 Courts: Federally administered and appointed.

  • Changes in Judicial Appointments:

    • Historical context:

    • Before the 1990s, most judges were appointed by the Attorney General or the Provincial Premier, fostering significant political patronage.

    • Post-1990s reform:

    • Judicial Appointment Committees were established, comprising judges, practicing lawyers, and representatives of the government, but political influence can still be observed.

Courts in a Liberal Democracy

  • Definition and Importance:

    • Distinction between Democracy and Liberal Democracy:

    • Commitment to self-government, which also upholds the rule of law and protection of minorities.

    • Courts are frequently engaged for adjudicating disputes, particularly regarding laws, rights, and questions of justice.

Judicial Process

  • Definition of Judicial Process:

    • The judicial process is fundamentally about dispute resolution, with courts serving as a coercive means of adjudicating disputes by applying legal frameworks to the facts at hand.

    • The acceptance of court rulings is founded on the premise of impartiality; however, it is important to note that courts cannot be completely divorced from political influences and the state.

The Law

Theories of Law

  1. Legal Positivism:

    • Definition: Law is described as whatever the government declares, formed by a body of rules.

    • Characteristics:

      1. Enacted and applied by public officials.

      2. Formulated following legitimate processes.

      3. Supported by state power.

    • Critique: This perspective may permit the existence of 'amoral' legal systems.

  2. Natural Law:

    • Definition: For a law to be considered valid, it must uphold moral principles.

    • Notable Thinkers: St. Augustine and Martin Luther King emphasized that an unjust law is no law at all.

    • Critical Question: Where does morality originate?

      • MLK suggests it forms from human personality.

  3. Law as Contestable:

    • The law can be viewed as contestable with multiple competing visions of justice, leading to differing standards and interpretations of 'the good.'

Categories of Law

International Law

  • Definition: Governs relationships and disputes that involve multiple nations or cross-border interactions.

    • Examples include treaties, which are legal agreements between states, and resolutions of disputes that arise between nations.

    • Post-World War II, international law has gained significance, notable in discussions like the Laws of Nations and War at Nuremberg.

Private Law

  • Definition: Rules governing relationships between individuals, groups, and corporate entities.

    • Types include:

    • Torts: Private wrongs committed against individuals’ person, property, or reputation.

      • Example: Case of Hadley v. Baxendale concerning contractual obligations.

    • Contracts: Binding legal agreements formed by mutual consent.

    • Family Law: Covers marriage, divorce, custody, and support payments.

    • Property Law: Concerns rights and obligations of ownership, including real property (land), personal property, and intellectual property.

      • Example: Case of Pierson v. Post discussing property rights.

Public Law

  • Definition: Rules governing relationships involving the state.

    • Areas include:

    • Constitutional Law: Governs the structure and function of government institutions.

    • Criminal Law: Laws defining offenses against the state.

    • Administrative Law: Regulations governing the activities of administrative agencies.

    • Tax Law: Governs taxation and related issues.

Systems of Law

Common Law

  • Context: Focuses on the legal systems of the UK, Canada, the US, and former British colonies.

    • Historical Landmark: Constitution Act, 1867 states “…will have a constitution similar in principle to that of the United Kingdom.”

Civil Law

  • Context: Primarily observed in Continental Europe, Asia, and partly in Scotland and Quebec.

Hierarchy of Laws

  1. Top Level - Constitutional Law:

    • Formed by a sovereign people and encompasses the fundamental legal framework.

  2. Middle Level - Statutory Law:

    • Created by legislatures, consisting of written laws enacted by elected bodies.

  3. Bottom Level - Common Law:

    • Developed by judges through judicial decisions and precedents established in court rulings.