intro to justice & law 2

Defined:
- Described as a “vast body of judicial decisions that has developed over time.”
- Judges use past decisions to resolve present disputes, establishing rules for future controversies.

Dates back to the 11th century in England.
It consisted of customary rules that judges adopted in an effort to develop a ‘common’ law for resolving disputes that arose throughout the country.

Considered the supreme law of the land.
Functions to stipulate the ‘rules of the game.’
Defines the relationship between citizens and the state.
Canadian Charter of Rights and Freedoms plays a critical role:
- Divides powers between federal and provincial governments.

Statutes are legislative products created by elected legislatures or Parliament.
Examples: Criminal Code of Canada is highlighted as a key piece of legislation.
Court systems must follow and interpret these enactments.
Legislative Supremacy: Statutes take precedence over common law rules.

Pros:
- Codification: Reduces conflicts as legislation is clearly written.
- Speed: Statutory law is amended more quickly than common law, which often requires a dispute to revisit a legal issue.
- Flexibility: Legislation can cover broader issues beyond narrow specifics of common law precedents.
Cons:
- Legislation can be written broadly, necessitating court interpretation.

Primarily used by English-speaking nations and former British colonies, including the UK, USA, Canada, New Zealand, and Australia.
Common law is characterized by British inheritance—organic and flexible in nature.

In Medieval England (pre-1066), legal systems varied significantly between towns.
Kings appointed judges to create a “common” law to promote consistency in dispute resolutions.
Mechanism for Consistency: Use of legal precedents helped establish a uniform legal understanding among various jurisdictions.

Precedent:
- Known as stare decisis (standing by a decision), it is central to common law reasoning.
- Like cases must be treated alike; courts are bound to follow established precedents but this is not absolute.

Benefits:
- Provides predictability and stability in legal outcomes.
- Protects citizens by providing an established framework for legal claims.
Drawbacks:
- Rigid adherence may lead to unworkable precedents.
- Example: The Cattle Trespass Case (Fleming v Atkinson, 1959) where a motorist was held liable for cows on a public road, later deemed an “irrational legal anomaly” by the Supreme Court of Canada (SCC), reflecting the limitations of precedent.
- Justice Judson remarks on the virtue of common law's flexibility: “that one of the virtues of the common law system is its flexibility, that it is capable of changing with the times and adapting its principles to new conditions.”

Emphasizes the significance of great cases in the development of common law.
A case becomes great when it gets designated as such due to its impact.
Judges and lawyers have pivotal roles in this designation and in shaping their implications for future cases.
Great cases are characterized by “doctrinal stickiness,” requiring future cases to reconcile with established principles.

In this landmark case, Dudley, Stephens, and Parker were shipwrecked, leading Dudley and Stephens to kill Parker in order to survive.
Upon rescue, they were charged with murder.
Their legal defense centered around the “defense of necessity,” arguing that their otherwise illegal action was justified by the emergency of survival and greater evil prevented.
The necessity defense was ultimately rejected, but Queen commuted their sentence, showing the enduring relevance of the case.

What is Justice?:
- The question of justice is one of the oldest in human inquiry, seen throughout the history of political philosophy from ancient Greece to the present day.
Justice can be considered in multiple contexts:
- As an individual ethical consideration.
- In the context of political community or the best state.
- Through legal systems: adjudicating disputes among individuals or between individuals and the state.

Focuses on maintaining and restoring equality among individuals within voluntary and involuntary transactions.
Most applicable areas include private law (contracts/torts).
Concerned with equality relating to individual entitlements.
Often illustrated by the line analogy: “Justice is making someone whole.”
Critique of Corrective Justice:
- It does not address or care about power disparities or privilege among people, which can lead to incomplete understandings of justice.

Concentrates on equity among individuals and society as a whole.
Formal equality alone is insufficient; state intervention is often necessary to ensure equitable distribution of benefits.
Aims to address disparities in citizens' abilities to exercise rights (voting, speech) and to provide social benefits according to need (income, healthcare, housing).
Additionally seeks to remedy inequities among different groups (gender, race, income).
Critique of Social Justice:
- There is often a limiting principle; it can erode individual freedoms.
- Concerns exist that “the cure might be worse than the disease,” highlighting potential negative consequences of overly broad interventions.

Focuses on fostering dialogue between perpetrators and victims, emphasizing the consequences of crime.
Can be looked at both macro/global and micro/local levels:
- Macro: Aims for healing among peoples, states, and societies, especially regarding war crimes and genocides.
- Micro: Addresses the causes of crime, with the victims’ experiences at the forefront, using moments in the criminal justice system as educational opportunities.
Critique of Restorative Justice:
- Traditional views on justice (retribution) argue against restorative practices.
- Dialogues may prolong existing conflicts at the macro level and potentially retraumatize victims at the micro level.

Centers on the integrity of legal proceedings and ensuring fair trials free from bias.
Encompasses principles of the Rule of Law which include:
- Like treated alike, equality before the law, and that government officials are not immune.
- Requires laws to be promulgated and not retroactive; applied by fair, impartial judges.
Critique of Procedural Fairness:
- Definitions within the Rule of Law are often contestable.
- The question arises: “Fair trial according to whom?” which can set a low bar for the concept of justice.
- Simply equating procedural fairness to “getting your day in court” does not fully capture the essence of achieving justice.