Canadian and International Law
Law and Change
Factors affecting Change
Necessary Conditions for Change-
Change occurs when societal values shift, new technologies emerge, or justice demands adaptation. Conditions include public awareness, political will, and effective legal frameworks to implement change.
Rule of Law (3 tenants)
Supremacy of the Law: All individuals and institutions are accountable under the law.
Equality Before the Law: Everyone is treated equally in the legal system, regardless of status.
Fairness in the Law: Laws must be clear, public, and fairly enforced.
Democratic Government( vs authoritarian gov’t)
Democratic Government: Power is decentralized, laws are created through a process of public participation, and rights are protected.
Authoritarian Government: Power is concentrated, laws often suppress dissent, and civil rights are limited.
Independent Judicial System
A key feature of a functioning democracy, where courts operate without political interference, ensuring impartiality and upholding the rule of law.
Changes through Individual Action
Individuals like Sue Rodriguez or Henry Morgentaler have driven legal change by challenging existing laws in court.
Changes through Collective Action: Lobby groups, Royal Commissions,
Lobby groups and Royal Commissions are powerful tools for legal reform, providing platforms for public opinion and expert consultation on pressing issues.
Lobby Groups:
Organized groups aiming to influence government policy.
Advocate on specific issues (e.g., environment, business, civil rights).
Methods: lobbying politicians, public campaigns, research.
Goal: ensure their interests are considered in policy making
Royal Commission:
Government-appointed inquiry into complex/controversial issues.
Led by experts with broad investigative powers.
Gathers evidence, holds hearings, and makes recommendations.
Can lead to major policy/legal reforms, but implementation is optional.
Understanding law through Cases: R v Marshall, Sue Rodriguez, Morgentaler, Lavalee
R v Marshall:
A landmark case concerning Indigenous fishing rights in Canada.
Donald Marshall Jr., a Mi'kmaq man, was charged for fishing eels without a license.
The Supreme Court ruled in his favor, affirming treaty rights from the 18th century, allowing Indigenous peoples to fish for a "moderate livelihood" without following all regulatory rules.
Sue Rodriguez:
Sue Rodriguez challenged Canada's criminal code prohibiting assisted suicide.
She suffered from ALS and wanted the right to choose when to end her life.
Though the Supreme Court ruled against her, this case sparked public debate and eventually led to changes in Canada’s assisted dying laws (Medical Assistance in Dying, MAID).
Morgentaler:
Dr. Henry Morgentaler challenged the criminal restrictions on abortion in Canada.
The Supreme Court ruled in 1988 that the existing abortion law violated women's rights under the Canadian Charter of Rights and Freedoms.
This decision effectively decriminalized abortion, allowing women greater control over reproductive rights.
Lavallee:
R v Lavallee dealt with the defense of a battered woman who killed her abusive partner.
The Supreme Court accepted expert evidence on "battered woman syndrome," recognizing the psychological impact of prolonged abuse.
This case expanded the legal understanding of self-defense, especially in domestic violence cases.
Primary and Secondary Sources of Law
Jurisprudence:
Jurisprudence is the philosophy or science of law.
Juris =“of right” or “of law”
Prudens = skilled or learned in law
Primary Sources of Law:
Primary sources are those that have influenced our ideas and values about law over hundreds and even thousands of years.
Religion
Some societies are governed by laws derived from religious principles.
Costumes
Long-standing practices often become such a fundamental part of society that they become formally enshrined as laws
Conventions
Conventions are rules which, while not legally enforced by courts, are nevertheless such of compelling political force that they are often followed by legislators
Social and political philosophy
Secondary Sources of Law:
Secondary sources include the laws and cases that were codified in response to these cultural, religious and philosophical values.
The Constitution:
The Constitution is at the top of legal authority.
Statutes:
Otherwise known as Acts, statutes are laws enacted by the elected representatives of the public at either the federal or provincial level.
Regulations:
separate legal documents made under the authority of a statute
Court Decisions:
This judge-made law depends on an internal hierarchy of its own. Decisions of some courts take precedence over those of others.
o Historical Influences:
Greek Influence:
The ancient Greeks introduced democracy and the concept of civic participation. Citizens were expected to engage in lawmaking and governance, laying the foundation for modern democratic legal systems.
Having a jury and people influence decisions within the law
Roman Influence:
Romans contributed to legal development through the codification of laws, such as the Twelve Tables, which were the first attempt to create a comprehensive set of written laws. They also introduced legal advisors (jurisconsults), shaping modern legal professions and the structure of legal advice.
Written laws, and the codification of laws, Justinian Code
English Influence:
England introduced the common law system, where laws are developed through judicial decisions and precedents. The jury system also originated in England, allowing ordinary citizens to participate in the legal process, influencing justice systems worldwide.
Common Law
French Influence:
The Napoleonic Code, implemented by Napoleon in the early 19th century, provided a clear and systematic body of civil law. It had a profound influence on civil law systems, including in Quebec, which follows French Civil Law traditions distinct from the rest of Canada’s common law system.
Civil Law
Consider
: juries, democracy, civic participation, codification, Twelve Tables. first
legal advisors, the Justinian and Napoleonic Codes, French Civil law (Quebec),
O under what circumstances would trial by
ordeal, combat, or oath helping be used?
Trial by Ordeal:
Used to determine guilt based on divine intervention.
A method used in medieval legal systems to determine guilt or innocence by subjecting the accused to dangerous or painful tasks, believed to be under divine judgment.
Common ordeals included carrying hot iron or being submerged in water.
If the person survived it was seen as a divine intervention.
If you wrongly accuse someone you could be killed
Trial by Combat:
Allowed the accused and accuser to settle disputes through a physical fight.
The belief was that God would grant victory to the rightful party.
Oath Helping:
Used in disputes where the accused could swear an oath of innocence, often supported by others.
"oath helpers" (friends or relatives) who would vouch for their credibility.
If enough respected individuals supported the accused’s oath, it could lead to an acquittal. It relied heavily on social standing and the belief that false oaths would bring divine retribution.
What replaced these in the law is the Jury
O describe the development of case law within feudal England
In Feudal England, legal disputes were initially settled by local customs.
Royal judges began traveling and recording decisions, creating a unified legal system.
Judges started following earlier rulings (precedents) to ensure consistency.
This practice, known as stare decisis, meant future cases had to align with past decisions unless compelling reasons dictated otherwise.
This development helped create the common law system, where judicial rulings became binding precedents, ensuring uniformity across the country.
O Students will explain the significance of the following events and historical figures:
King Henry II’s System of Assizes: Created traveling justices to administer law, forming the foundation of English common law.
Magna Carta (1215): Signed by King John, it established that even the monarch is subject to the law, a cornerstone of constitutional law.
O Customs and Conventions
Non-codified traditions and practices that influence legal systems, particularly in common law jurisdictions.
So like primary sources!
o Influence Social and political philosophy
Philosophical ideas about justice, governance, and rights shape legal development, as seen in the works of thinkers like Hobbes, Locke, and Rousseau.
o Hierarchy of Law –Const., statute, case/common law
Constitutional Law
Statute Law
Case/Common Law
o How a bill becomes a law
Introduction → Committee Review → Debates → Amendments → Approval by Parliament → Royal Assent.
Introduction:
A bill can be introduced in either the House of Commons or the Senate.
Second Reading (Debate on Principle):
The bill is read for the second time, and Members of Parliament (MPs) or Senators debate the general principles and purpose of the bill.
Committee Review:
The bill is sent to a parliamentary committee for a detailed examination.
Report Stage:
The committee reports its findings and any recommended changes back to the chamber (House or Senate).
Third Reading (Final Debate and Vote):
The bill is read for the third time, followed by a final debate on the bill in its entirety, including any changes made during the committee stage.
Senate Consideration:
If the bill started in the House of Commons, it is now sent to the Senate (or vice versa).
Royal Assent:
Once both the House of Commons and the Senate approve the bill, it is sent to the Governor General, who grants Royal Assent on behalf of the monarch.
Once Royal Assent is given, the bill officially becomes law.
Case Law: explain the following terms and concepts associated with case law:
Precedent: refers to past legal decisions made by courts that serve as a guide for deciding future cases with similar facts or legal issues.
This ensures consistency and predictability in the law.
stare decisis: a legal doctrine that requires courts to follow precedents established by higher courts or their own past decisions.
This maintains stability in the legal system, meaning similar cases should be decided in similar ways.
ratio decidendi: the legal reasoning or principle that forms the basis of a court's decision. It is the binding element that lower courts must follow in future cases.
obiter dicta: additional comments or observations made by a judge in a decision that do not form part of the binding legal reasoning.
These statements are not essential to the outcome and are not legally binding, but they may influence future cases.
understand and be able to distinguish between the various categories into which law can be classified, including:
Substantive Law: Identifies the rights and duties of a person or level of government.
Procedural Law: Outlines the methods or procedures that must be followed in enforcing substantive laws
Domestic Law: Applies within the boundaries of a nation.
Can be enforced by the government and interpreted by domestic court authority. In Canada, this process is carried out within the democratic process.
International Law: Consists of agreements between nations, often through an international body such as the UN.
Difficult for all countries to agree on these laws. Even more difficult for these laws to be enforced, due to political factors
Public Law: This deals with crimes that affect the whole community.
These crimes are defined in public legislation and are often criminal and quite serious.
Public Law types:
Constitutional Law: Rights and structure of government.
Criminal Law: Offenses against the state.
Administrative Law: Regulates government agencies.
Private Law: This deals with issues between two or more people and consists of the laws broken that only affect those said people.
Private (Civil) Law types :
Contract Law: Agreements between parties
Property Law: Ownership and use of property.
Tort Law: Civil wrongs and damages.
Family Law: Issues related to family relationships.
Corporate Law: Governs business operations.xd
Philosophy of Law
understand the legal theories of such thinkers as:
Socrates:
Morality is an important part of natural law
Laws are meant to help people live the right way/ help people become better people
Plato:
Harmony between the individual and society are important components of morality and thus natural law
Human laws must be based on eternal laws based on the universe
Education is important
Aristotle
People are not all good, and education alone can not ensure that people will be good
Only laws can ensure the good behavior of people
Using reason humans can develop their greatest potential within the state
St. Thomas Aquinas
Natural law is law from god
The ruler is responsible for the care of the community
Laws are published so everyone knows it
Thomas Hobbes
All people are prone to violence and disorder under natural law
People form governments to ensure law and order through strong leadership
John Austin, and
People have natural rights to life, liberty and property
The law of state must protect these fundamental rights
If ruler violates these rules people are justified to riot against them and replace them
Jeremy Benthem
Laws can be judged based on their utility to society
Laws provide happiness
Marx
Focused on the failure of the legal system to treat society equally
Ruling class controlling the formation of laws is a mechanism to control the working class
Believed in feminine Jurisprudence
H.L.A. Hart: Believed in legal positivism
John Rawls: Theory of justice and fairness?
Noam Chomsky: Critical legal theory
O Concepts such as :
Feminist jurisprudence: Seeks to explain the way in which the law played a role in womens former subordinate status. Created to recognize and combat the legal system built by and for male individuals
Legal Formalism: An approach to the philosophy of law that emphasized the discovery of legal principles through logical analysis and the application of those principles to the facts of the case, essentially a positivist explanation of how the legal system functions.
Legal Realism: Tries to explain law through the real actions of individual lawmakers rather than through ideas about nature or government
Critical Legal Studies: The law is intertwined with social issues, stating that law has inherent social biases, and is created to keep those in power powerful and the weaker weak
Positive law: Laws need not be moral, and it gets its authority from the government rather than from fundamental universal principles
Natural law: Believes that our laws should be based on morality, ethics, and what's inherently correct and that we as humans are born with this knowledge, and are not forced to follow any law that conflicts with this inherent moral compass