What is the Law?

The law affects nearly every aspect of our lives every day. We have laws to deal with crimes like robbery and murder. And we have laws that govern activities like driving a car, getting a job, and getting married. Laws give us rules of conduct that protect everyone’s rights.

The rule of law, freedom under the law, democratic principles, and respect for others form the foundations of Canada’s legal heritage. Every Canadian should understand the law, and the ideas and principles behind it.

Laws also balance individual rights with our obligations as members of society. For example, when a law gives a person a legal right to drive, it also makes it a duty for a driver to know how to drive and to follow the rules of the road.

Why do we need laws?

Laws are rules made by the government that forbid certain actions and are enforced by the courts. Laws apply to everyone equally. If you break a law, you may have to pay a fine, pay for the damage you have done, or go to jail.

The law provides a way to resolve disputes peacefully.

Imagine the chaos – and the danger – if there were no laws. The strongest people would be in control and people would live in fear. Drivers could choose which side of the street to drive on and no one could stop them. Imagine trying to buy and sell goods if no one had to keep promises. Or trying to hold onto your personal property or even to keep yourself safe if there were no laws against robbery or assault.

Our laws also recognize and protect basic individual rights and freedoms, such as liberty and equality.

Even in a well-ordered society, people disagree, and conflicts arise. The law provides a way to resolve disputes peacefully. If two people claim the same piece of property, rather than fight they turn to the law. The courts can decide who the real owner is and how to protect the owner’s rights.

Laws help to ensure a safe and peaceful society. The Canadian legal system respects individual rights and ensures that our society is orderly. It applies the same law to everybody. This includes the police, governments and public officials. All of them must carry out their duties according to the law.

What other goals do laws achieve?

In Canada, laws also carry out social policies. Laws allow systems to be put in place for governments to provide, for example,

1. benefits when workers are injured on the job;

2. insurance when workers are unemployed;

3. health care; and

4. loans to students.

Public Law and Private Law

Laws can be divided into public law and private law.

Public law sets the rules for the relationship between the individual and society. If someone breaks a criminal law, it is seen as a wrong against society. It includes

1. criminal law, which deals with crimes and their punishments

2. constitutional law, which defines the relationship between various branches of government, as well as between federal and provincial governments; it also limits the exercise of governmental power over individuals through the protection of human rights and fundamental freedoms

3. administrative law, which deals with the actions and operations of government

If someone runs away from a store with unpaid goods, that’s theft. It violates public law because it affects other people. If you back up your car into somebody’s fence, you could be violating their right to enjoy their property. That falls under private law.

Private law sets the rules between individuals. It is also called civil law. Private law settles disputes among groups of people and compensates victims, as in the example of the fence. A civil case is an action that settles private disputes.

What does each level of government do?

Federal: ensuring what chemicals goes in what products, medical drugs

Provincial: electricity

Municipal: clean water,

What Else Contributes to Legal Development

Changing laws

Government legal experts are constantly examining our laws and looking for ways to improve them. Law reform committees also review laws and recommend changes. Lawyers bring questions of law to court to create change. Social action groups seek changes to laws that they consider unfair to members of Canadian society. Industry groups and other stakeholders meet with government decision makers in an effort to present their opinions on the direction of public policy. Legislators in the federal, provincial, and territorial governments respond by introducing new laws or changing old ones. Ultimately, though, it is the people of Canada who elect the lawmakers. We as Canadians need to decide what we want from the law and then make sure it reflects those wishes. Everyone has the right to work toward changing the law.

1. Legal Developments Constitution Act, 1982 One key individual who has shaped Canadian law was former Prime Minister Pierre Trudeau. In 1982,he patriated (This means brought under Canadian control.) the Constitution. The Constitution Act, 1982 included the responsibilities of the different levels of government; federal, provincial and municipal, the amending formula (These are the rules for making changes to our Constitution.) and the Charter of Rights and Freedoms. He built upon the legal traditions of the British system of government and upon the work of another former Prime Minister John Diefenbaker to create a document that was unique to Canada. TASK: Take a few moments to view The Charter of Rights and Freedoms for an introduction to the Constitution and the Charter. As you watch, consider the legal significance of this legal change. Ask yourself: Why is the Constitution and the Charter so important to our legal system? Fill in the graphic organizer. Remember to record 5 key details.

2. The History of the Vote Women in contemporary Canada enjoy the same rights and freedoms as men. This has not always been true. In the past, women were unwelcome in the workplace and in public roles such as judges and senators; women were unable to own property or make decisions regarding money independently. A great deal of progress has been made over the course of the twentieth century. One of most important developments was winning the right to vote because of the power that democratic rights convey. Voters choose the representatives to sit in Parliament and those Members of Parliament are responsible to make laws for the country. Those laws apply to all citizens; including women. With the right to vote, women now had a voice in the shaping of the laws of the nation. One woman who was fundamental to this achievement was Nellie McClung. TASK: Please watch the video History of the Vote. As you watch, consider the interrelationships that existed between law, politics and the international conflict of the time. Ask yourself: How was the Military Service Act of 1917 related to the development of voting rights for women? Fill in the graphic organizer.

3. Automobile Safety TASK: Have a peek at 100 Years of the Car. What changes do you notice in the cars? What do you think prompted those changes? Take a few moments to review the timeline below to see a few of the changes in laws that regulate automobiles. These changes were created by our elected representatives and passed into law through the provincial legislatures or through the federal House of Commons. Notice that regulation in this area is a shared responsibility between the federal and provincial levels of government. As you look at the timeline consider change and continuity. Ask yourself: What laws have changed over time and what purpose do they serve? Which laws have stayed the same? How might laws regulating cars change in the future? Fill in the graphic organizer. Automobile Timeline 1903 Ontario first licenses motor vehicles in the province. What purpose might this serve? 1908 PEI legislators ban cars because of noise and pollution. Within a decade this ban has been removed. 1921 Introduction of impaired driving to the Criminal Code (This is a book published annually that describes all criminal offences and their respective penalties.) There have been many adaptations to this area of law including the severity of the punishments. Lobby groups such as MADD (Mother’s Against Drunk Driving) have been influential in educating the public and advocating for strict laws. 1920s British Columbia and the Atlantic provinces switch to driving on the right by the end of the decade. What reasons can you suggest for the fact that some countries drive on the right while other nations drive on the left? 1939 Canada introduces the first four lane highway. 1949 The Trans-Canada Highway Act of 1949 articulates the sharing of costs between the federal and provincial levels of government. This nation-wide project is fully completed in 1971. 1951 First carmaker to introduce seatbelts. This new safety feature will not become law for another 25 years. Why did this change take so long? 1971 Canada introduces the first federal regulations on exhaust emissions. 1976 Ontario is the first province to pass a law making seat belts mandatory. All provinces and territories have similar laws by 1988. 1990 Canada Motor Vehicle Safety Standard requires cars to have daytime running lights. 1999 Canadian Environmental Protection Act - The federal department; Environment Canada, has legal authority to regulate emissions from on-road vehicles. This used to be under the control of Transport Canada. 2015 Distracted Driving law in Ontario increases f

5. ines and demerit points. Provinces across the nation are addressing this challenge through new legislation.

4. Mega Sports and Human Rights

Sporting events are often cause for celebration; they can unify a population, highlight the positive aspects of a particular region or nation, boost the economy and showcase the talent of the athletes. Unfortunately, the preparations for some sporting events can cause major disruptions and hardships for those living in the host country. Take a few minutes to look at sports from a legal perspective. The rights of people can be threatened or violated in a number of ways. These violations have occurred in the past but human rights concerns are a contemporary issue. Take a moment to read the article below. Ask yourself: What are the rights violations identified by the author? What is the impact of that violation? Fill in the graphic organizer. TASK: Please watch The Exclusion Games. What do you see? What questions do you ask? What is the ‘big idea’ presented? Clearly the video has a particular perspective on the issue of the Olympics. Having an opinion or taking a stand on a specific issue is an important part of being an engaged citizen. It is however, always important to ask questions about your sources. Is there a bias in my source? Is the point of view supported with evidence? What else do I need to know in order to draw my own conclusions? Mega-Sporting Events: Five Main Abuses When athletes break the rules in Olympic competitions, they are harshly sanctioned. When host countries flout (disregard) the rules, they have largely got away with it. Former IOC (International Olympic Committee) President Jacques Rogge often insisted that the Olympics are a “force for good” but refused to criticize blatant violations of the Olympic Charter by Olympic hosts. Human Rights Watch has extensively documented how mega-sporting events can bring mega-violations when Games are awarded to governments who fail to respect human rights. No country has a perfect human rights record, but increasingly it is the more abusive states that most want to burnish (polish) their international reputation and need the patriotic boost gained by hosting world media and leaders for a global sport extravaganza. Over a decade of research, Human Rights Watch has documented five signature types of serious human rights violations that are typically tied to mega-sporting events. The first is forced evictions without due process or compensation due to massive new infrastructure construction. Before 2008, thousands of citizens in Beijing were forcibly evicted from their homes with little due process in terms of consultation or adequate compensation. Residents who protested the demolition of their homes were arrested. Fair compensation and due process were serious problems in Sochi as well. As massive stadiums are constructed for opening ceremonies, soccer games, or swimming and other events, the bulk of the work is often done by abused and exploited migrant workers, who face hazardous working conditions, long hours, and being cheated of pay. Major infrastructure construction often also leads to environmental and other complaints.The silencing of civil society and rights activists has been a signature abuse ahead of both the Beijing and Russian Olympics. Instead of the promised human rights improvements, the period leading up to the Beijing Games was marred by jailings and house arrests of activists who criticized the Olympics (including Sakharov Prize winner Hu Jia), and a three-year jail sentence for an environmental activist in Russia. In Beijing, citizens like 59-year-old Ji Sizun—who attempted to use the “Olympic protest zones” officially set up by the Chinese government to supposedly allow peaceful protest—were arrested. In Sochi, members of the feminist punk group Pussy Riot who staged a small protest during the Winter Games in February 2014 were visibly tackled and beaten by Cossacks while the police did nothing. The Olympic Charter expressly guarantees press freedom—the sale of media rights is a major source of revenue for the International Olympic Committee. But both the Beijing and Sochi Olympics were marred by threats, intimidation, and arrests of journalists. When 25,000 journalists arrived in China to cover the Beijing Olympics, they were surprised to find Internet news blocked—until the IOC forced China to cease web censorship for the duration of the Games. News that China's milk supply was poisoned nationwide with melamine was censored until after the Games closed, and at least six babies died as a result of this tragic poisoning (and the media blackout about it). In the lead-up to the Sochi Games, Russian police harassed, detained, and threatened to imprison two journalists from a Norwegian television station, before sarcastically saying, “Welcome to Sochi” when the journalists’ ordeal was over. So egregious was their treatment that Russian authorities issued a rare apology. Mega-sporting events are supposed to be moments to celebrate diversity and human achievement. But too often they are settings that expose ugly discrimination. Until just days before the launch of the London 2012 Olympics, Saudi Arabia was still planning to send a male-only national team, as in all past Olympics, and also to the 2014 Asian Games. Extreme pressure—brought about in part by Human Rights Watch’s “Let Them Play” campaign—finally led to two Saudi women being allowed to compete in 2012. But back in Saudi Arabia, as documented by Human Rights Watch’s 2012 report “Steps of the Devil,” the country still bans sport for all girls in state schools and has no women’s sports federations, a clear violation of the Olympic Charter’s non-discrimination clause. In June 2013, Russian President Vladimir Putin signed into law an anti-LGBT “propaganda” bill. The law uses the pretext of protecting children to ban spreading information about equality, tolerance, and other issues affecting the LGBT community and demonized LGBT people and activists in the public eye. This has helped spark a surge in harassment and violent attacks against LGBT people, and the IOC raised no concerns about how this could be compatible with a commitment to non-discrimination. In some parts of the world, women cannot even attend a sporting event as a spectator. Equal access to sporting events for women has become a serious concern, with the Fédération Internationale de Football Association, the international governing body for soccer known as FIFA, allowing a ban on women spectators for football matches since the 1980s in Iran. In 2012, Iranian officials extended the ban to volleyball matches. Law student Ghoncheh Ghavami was arrested in June 2014 and jailed for months in Iran’s notorious Evin prison after she and others protested a ban on women entering a stadium to watch a World League match. In November, the International Federation for Volleyball (known as FIVB) called on the Iranian government to release Ghavami, and affirmed its commitment to “inclusivity and the right of women to participate in sport on an equal basis” at the organization’s World Congress. The FIVB flagged that Iran’s policy could limit its ability to host international tournaments in the future. Ghavami was released on bail in late November, but not before a revolutionary court convicted her of “propaganda against the state” and sentenced her to one year in prison. She was appealing the decision at time of writing.In November 2014, the Asian Volleyball Confederation announced that it had selected Iran to co-host the 2015 Asian Men’s Volleyball Championships. Ghavami’s conviction and Iran’s continuing ban on women spectators attending men’s sporting events should prompt international sporting groups to pull all major tournaments from offending countries until women are guaranteed the right to attend matches as spectators without the prospect of arrest and jailing

Magna Carta

It has been called democracy's birth certificate, but 800 years later, most of Magna Carta is as outdated as the Latin it is written in, with rules on how to repay debts owed to Jewish moneylenders and what widths to make dyed cloth. Still, the charter remains a powerful symbol of justice triumphing over tyranny, especially in our time, when the concepts of freedom and fairness are in constant flux.

King John of England's acceptance of Magna Carta, or Great Charter, marked the first time an English monarch had ever consented to written limits on power drafted by his subjects. It laid the foundation for the common-law system in the English-speaking world and informs the Canadian Charter of Rights and Freedoms (1982), the U.S. Bill of Rights (1791) and the United Nations' Universal Declaration of Human Rights (1948).

Arbitrary rule

The succession of kings who ruled England after the 1066 Norman Conquest allowed the nobility a degree of autonomy and protection from arbitrary punishment. John's father, Henry II, and brother, Richard I (the Lionheart), spent a lot of time overseas defending their French lands and fighting the Crusades. Their absences increased the independence of the English nobility. John, however, who was king 1199-1216 and spent much of his reign in England, imposed new taxes to fund continental wars and ignored the many accepted rights of the barons. He is portrayed as selfish and cruel in countless Robin Hood movies.

The Barons Rebel

In 1215, after King Philip II of France imposed a humiliating peace treaty on England, a weakened King John again demanded more money from the barons. The usual response would be for the barons to back a rival to the throne. But since John's eldest son, the future Henry III, was only eight years old and could not replace John within the Royal Family, the barons decided to codify their privileges in a charter. John was finally compelled to affix his seal to Magna Carta on June 15, 1215, at Runnymede, west of London.

The Great Charter

Magna Carta, known as the Great Charter, was written in medieval Latin and contains four key principles that serve as the foundation for the English-speaking world's legal system:

• Nobody is above the law: The basis of equal justice at all levels of society.

• Habeas Corpus: Freedom from unlawful detention without cause or evidence.

• Trial by jury: Rules to settle disputes between barons and the Crown established trial by a jury of one's peers.

• Women's rights: A widow could not be forced to marry and give up her property – a major first step for women.

The Great Charter also contained clauses guaranteeing the freedom of the church and the city of London, which remain active statutes in Britain.

Magna Carta abandoned

Within months of King John agreeing to the Great Charter at Runnymede, both sides abandoned it. John appealed to Pope Innocent III to release him from the terms, and the barons returned to their traditional method of dealing with monarchs they did not like – supporting a rival claimant to the throne. The barons sent a delegation to the future King Louis VIII of France inviting him to invade England and claim the throne.

After King John

John's death in 1216 allowed Magna Carta to survive and develop. The barons withdrew their support for Louis's invasion and rallied around John's son, Henry III. The new king's lengthy time as a child-monarch allowed the barons to assume a greater role in governance and refine Magna Carta's codified ideas.

In 1217, the Charter of the Forest (Carta de Foresta), which ended the arbitrary "evil customs" in forest law mentioned in Magna Carta, was ratified. Then, after Henry III came of age in 1227, he finally agreed to accept Magna Carta in exchange for taxes on the clergy and on land.

The original four

In the lead-up to Magna Carta's 800th anniversary, four surviving original copies from 1215 have been brought together for the first time at The British Library in London. The library announced on Monday that 1,215 people have won the opportunity to visit the display out of a pool of more than 40,000 people from around the world who entered a public ballot.

It is believed that King John had his clerks make between 13 and more than 30 copies for distribution across his kingdom. Hundreds more were later produced throughout the medieval era. Today, only four copies from that first group survive: Two are kept at the British Library, one at Lincoln Cathedral in eastern England and one at Salisbury Cathedral in south-west England.

In 2010, while a 1215 copy from the British Library was on display at the Manitoba Legislature, the Queen unveiled a stone from Runnymede that became the cornerstone of the new Canadian Museum for Human Rights.

A 1225 copy of Magna Carta from Durham Cathedral will tour Canada in 2016 to mark the anniversary. It will stop at the Canadian Museum of History in Ottawa (June 11-July 26), the Canadian Museum for Human Rights in Winnipeg (Aug. 15-Sept. 18), Fort York National Historic Site in Toronto (Oct. 4-Nov. 7) and the Legislative Assembly of Alberta's visitor centre in Edmonton (Nov. 23-Dec. 29).

Where our Legal System comes from

• Law – “the system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties” –

• Concept of Law - The characteristic qualities, values, virtues and ideas comprising the law.  These characteristic qualities give meaning and significance to the system and laws of a society.

• E.g. fairness, equality, authority, etc.

Good laws

1. Laws should be fair – they should be approximately the same for ALL members of the society.

2. Laws should be publicized and understood by all the members of society. The members should be aware of the penalties involved if they break the law and should know what their rights are and what recourse they have if their rights are violated.

3. Laws should not be capable of being changed to suit the whim of the times or a specific group in the society.

4. Adequate deterrents or punishments must be provided.

5. Laws must be recorded in some permanent form. (i.e. Criminal Code)

6. Laws must be enforceable

Needs for laws

• Laws as an instrument of society: Ideally law’s objectives should embody the broader collective goals and values of a society i.e. election laws

• Law as a mechanism for resolving disputes: In our society we rely on courts of law to settle human conflicts.  Our courts regulate the limits of our personal relationships.

• Law protects our person, property and rights: Laws are impotent without mechanisms to enforce them.  Police are created under the law to protect public safety and the protection of property

• Law provides order in society: Laws create predictability and stability in society.  People know that certain obligations will be enforced by law.

Laws vs Rules

• Laws are mandatory, but rules may be optional

• Laws entail a formal system of procedures for enforcement

• Laws impose a system of punishment and remedies

Jurisprudence

Jurisprudence is the philosophy or science of law. Juris =“of right” or “of law” Prudens = skilled or learned in law Jurisprudence ensures that changes to our laws are made with careful consideration and are informed by the insights of the legal writers, law-makers and scholars of the past. This is a way of thinking about the law, and the search for coherent, fair, and principled lawmaking Law evolves…it is not carved in stone.

Rule of Law

• Magna Carta 1215 – King John had to sign it

• Three components:

  • General recognition of the law is necessary for an orderly society

  • The law applies to everyone equally

  • A person’s legal rights will not be taken away except in accordance with the law
    
    

Sources of Law

• Primary sources are those that have influenced our ideas and values about law over hundreds and even thousands of years.

• Secondary sources include the laws and cases that were codified in response to these cultural, religious and philosophical values.

Primary Sources

Religion: Some societies are governed by laws derived from religious principles. Religious influence is perhaps stronger in some constitutional monarchies, such as England, where the monarch is also the head of a state church

Customs: Long-standing practices often become such a fundamental part of society that they become formally enshrined as laws i.e. Adverse possession

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 i.e. that party with the most seats in the House of Commons forms the government

Social and Political Philosophy: Philosophical traditions have influenced the laws of Western societies just as Communist ideologies have influenced China and the former Soviet Union.

Secondary Sources

The Constitution: The Constitution is at the top of legal authority. No law shall be inconsistent with the Constitution. Statutes: Otherwise known as Acts, statutes are laws enacted by the elected representatives of the public at either the federal or provincial level. Regulations: Subordinate legislation, known as regulations and orders-in-council, are separate legal documents made under the authority of a statute, often containing much of the detail omitted from the statute. Court Decisions: Common law is at the base of legal hierarchy. This judge-made law depends on an internal hierarchy of its own. Decisions of some courts take precedence over those of others.

Lawmaking in Canada

3 Levels of government in Canada? Federal (s.91 BNA Act) Statutes & regulations

Provincial (s.92 BNA Act) Statutes & regulations

Municipal (s. 92.8 BNA Act) By-laws & regulations **Examples of responsibilities for each?

CML & CVL

• These are both influences on our Canadian legal system

• They are not the same thing as Criminal and Civil law, but rather how both systems work
  
  

Law vs. Justice

Law:

• is a set of rules

• impartially applied

• meant to regulate human behaviour and resolve disputes.

Justice:

• has more to do with how the law is applied, rather than the substance of the law.

• Justice is often linked to the concept of fairness and equality.

Law vs. Equity

Law is a ‘thing’ that can be seen, read, identified.

Justice is a ‘concept’ and is much more difficult to identify.

Law is basically a set of rules that define what is right and what is wrong, while justice__also__ takes into consideration the__circumstances__ that surround the situation.

The idea of justice is also often linked to our own set of values and morals.

Can you think of times when the law was followed, but justice was not served?

Principles of Justice

• Throughout history there have been many significant ideas, events and theories that have shaped our justice system.

• Impartiality, rule of law, equality, fairness and the right to be presumed innocent are fundamental principles that are important to our legal system.

What truths serve as a basis for our legal system?

People should be treated equally under the law.

• Law should not be influenced by power or wealth.

• Our courts should be fair and unbiased.

• Judges should be impartial and treat all people with respect.

• The legal system in Canada is based upon these key ideas that are often called the principles of fundamental justice.

• Our laws, court processes and all members of the justice community should respect and uphold the principles of justice.

• protection of these principles can result in legal change

Principles of Justice

#1 Rule of Law

The book Law in Action, Understanding Canadian Law explains the rule of law by dividing it into three parts:

“Firstly, the Rule of Law means that individuals must recognize and accept that law is necessary to regulate society.

Secondly, it means that the law applies equally to everyone, including people in power, such as heads of state, police officers, judges and politicians.

Finally, the Rule of Law means that no one in our society has the authority to exercise unrestricted power to take away our rights except in accordance with the law.”

#2 Impartiality:

A decision in a court of law should be based on objective criteria. Bias or prejudice should not play a role in a trial. Judges must demonstrate respect for all of the people involved in a case and must demonstrate respect for the law in their personal lives.

#3 Equality:

government and individuals are subject to the same laws and that all are entitled to equal protection of the law.

#4 Innocent until Proven Guilty:

• all people accused of breaking a law are considered innocent until they have been proven guilty in a court of law.

• sometime called the ‘presumption of innocence'.

#5 Fairness:

• refers to the process or procedures within the judicial system.

• A person should know the evidence the crown intends to present in order to prepare a defence to the charges.

• An accused should be able to understand court proceedings in order go to trial.

• The idea of fairness also means that bias or prejudice should not play a role in the creation of laws, the arrest procedures or the court processes.

Equality vs. Equity

Equality giving people the same things

Equity gives people what they need

Legal Philosophers

Natural Law Theory (closely linked to ‘divine law’)

• The theory that human laws are derived from eternal and unchangeable principles that regulate the natural world.

• Morality and law are closely connected.

• Humans are naturally good, no force is necessary as they will naturally do the moral and just thing. Ie: A mother will care for her newborn; a society will care for those in need. Through our natural intelligence, we know murder is wrong.

• Law should equal justice.

• Asserts that certain rights are inherent simply by virtue of being human (under positive theory, rights are granted by a human authority)

• Inherent rights - rights all people naturally and automatically have that cannot be taken away by anyone or thing.

  
  Positive Law Theory (grew out of a rebellion against the power of the Church)

• Introduced as part of the religious/political

upheaval in 16th-17th century Europe

• Law is a body of rules formulated by the state (the power), and that citizens are obliged to obey the law for the good of the state as a whole.

• No moral purpose, and not a matter of conscience

• Challengers of the law would face penalties

Positive Law Theory

• Law created by whoever has the power - it is human made law.

• Law is the opinion of whoever holds power.

• Law and justice are always the same thing

• Morality and law are not necessarily connected ie: even if a law is immoral, it’s still the law and must be followed

Socrates Greece, 469-399 BCE

Socrates:

• viewed living in a civil society as a two-way relationship - individuals gained benefits from living in an orderly, law-abiding society, but in turn, they had to accept some limitations on their rights and freedoms.

• citizens fulfilled their duties by obeying and upholding the law, these actions as the highest moral duty of citizens.

• obedience to the law applied even for flawed laws, an individual citizen even when the victim of unjust treatment, can never be justified in refusing to obey the laws of the state.

Plato Greece, 428 -348 BC

• purpose of law to be moral, the law acted as a moral guide for society.

• Not all people were equal and people should not be treated equally.

• justice depended on the particulars of each situation. Laws and legal judgments had to be flexible and take into consideration the particular circumstances of each case in order to reach just verdicts.

• if existing laws did not reflect eternal truths and virtues, he considered them unjust.

• it is just to disobey an unjust law.

Aristotle Greece, 384-322 BCE

Aristotle:

• law and justice rested on fundamental unchanging truths and morals.

• saw reason as the key to finding and understanding justice.

• laws would make people good and virtuous.

• law should be done with equity and not strict adherence to man made law.

• believed in man-made law, but that man should make laws based on reason-which comes from human nature.

• Humans are political creatures – cannot be “good” purely because of education. Rather they fit into 1/3 class of people:

• Those born good,

• Those who can be made good through education,

• Or those who are ruled by their passions (**majority  of people)

Aristotle and Rationalism

• Rationalism – process of using reason to analyze the natural world from observation (modern scientific method)

• Through rationalism, we can determine what is good/just vs. what is evil/unjust

• Only law (fear or punishment) can control people and convince them to follow reason/avoid evil

Purpose of law:

• Regulate human life in the state

• Ultimately, help citizens use their faculty of reason to reach their greatest potential (“good life”)

Cicero Italy, 106 - 43 BCE

• Roman lawyer at time of Julius Caesar

• established the principle: justice, right, equality, fairness, should underline law

• Law and justice are part man, part God

• State should represent collective will of citizens; not enact evil laws

• Permissible for citizen to withdraw support of a gov’t enacting evil laws (even if majority approves them)

St. Thomas Aquinas Italy, 1225-1274

Theorized that there are 4 types of laws:

● Eternal Law: laws outside of the universe; ones that God used to create the universe and keeps it in operation

● Natural Law: laws that humans are born knowing (care for children, self-preservation, do no harm to others, assist those in need)

● Divine Positive Laws: eternal law passed down in scripture; codified

● Human Positive Laws: codified laws made by humans, which are the product of reason (made by leaders for the common good and published for all to know)

• Humans are moral, and should live in a way that will unite them with God after death

• People did not have to obey a law that conflicted with Divine laws

• Law must be a product of human reason, be made for the common good,

Thomas Hobbes Britain,  1588 - 1679

• based his ideas of law, politics, and justice upon his view of human nature.

• he lived during a time of war and violence, therefore had a negative view of human nature. He viewed humans as brutish, savage, and self-interested.

• people needed strict limits, needed to be controlled and restrained.

• society needed strong laws set and enforced by the authorities.

• the ultimate goal of law was to maintain order.

John Locke Britain, 1632-1704

based his ideas on law, justice, and politics upon his notion of human nature.

• believed that reason and tolerance characterized human nature.

• felt that laws should set limits on the power of the state.

• sole purpose of law is to protect the individual’s rights against arbitrary acts of others who would interfere with their freedom.

• Locke argued that governments could be either legitimate or illegitimate.

• An illegitimate government would fail to protect the rights to life, liberty, health and property of its subjects. To deal with such a situation, Locke advocated the right of legitimate, justified rebellion.

• Locke’s ideas lead to the American and French revolutions and is the basis of our constitutional law (Charter of Rights and Freedoms).

Jeremy Bentham Britain, 1748 to 1832

Bentham:

• thought of the law as being practical and functional

• he saw law as nothing more than a means of social control.

• his ideas came to be called the theory of “utilitarianism”, or the notion that the value of something is based on its outcome. Law should do the greatest good for the greatest number of people-no matter the ethics.

• law served a functional purpose and did not deal so much with morals and values.

John Rawls American, 1921-2002

Rawls:

“Justice as fairness”

• his notion of justice rested on two principles: the liberty principle, and the difference principle.

• his “liberty principle” argued that all citizens should have the greatest degree of liberty, compatible with the concept of “liberty for all”.

• when rights and freedoms extend to the point where they interfere with the rights and freedoms of others, they must be limited (sounds like sections 1 and 7 of our Charter).

• “difference principle” stated that in order to achieve true justice, inequality is justified, if it is for the advantage of those who are less well off. 
  

H.L.A. Hart British, 20th century

Hart:

• argued that while laws are simply rules pronounced by the authorities, they have an “open texture” ie: they have limitations and are open to interpretation.

• law must consider varying circumstances and competing interests ie: individual rights vs protection of society (collective rights).

• law and justice are flexible and need to adapt to the particulars of each situation.
  

Modern Legal Theories

• Legal Realism – examines law in a realistic rather than theoretical fashion – belief that law is determined by what actually happens in the courts as judges interpret/apply law

• Different judges have different backgrounds, perspectives, and training – by that logic, their decisions could be different even though it’s the same case

• These decisions become case law – will have an impact on future court decisions

Legal Formalism

• In contrast to realism, Legal Formalism is a positivist approach in which the judge applies the laws as they are

• Laws are not interpreted, or applied as they could/should be, but only as they are written

Marxism

• Karl Marx (1818-1883) - Purpose of law to maximize the interests of the ruling class – Law = class rule

• Marxism – an economic/political theory that states that law is an instrument of oppression and control that the ruling class uses against the working class

• Is this concept still current? Does our legal system“favour” a social class?

Feminist Jurisprudence

Legal theory that law is an instrument of oppression by men against women

Similar to Marxism, but rather law is used by men to oppress women (result of the 60’s Women’s liberation movement)

Feminists argue that the law, historically, treats women differently than men:

• Women were not “persons” until 1929… Right to vote in 1918 (1940 in Quebec)… Men could file for divorce on grounds of adultery, but women could not (1925)

• 1989 – Brooks v. Canada Safeway Ltd. – Denying insurance benefits to pregnant women is illegal

• Lastly, legal institutions are systematically biased against allowing women to attain positions of power (First women to SCC…1982)

• Is all this still true? Thoughts…Other legal milestones for women? (Justine Blainey) – Is law still biased against women?

Critical Race Theory

• Derrick Bell, Alan Freeman, and Richard Delgado

• Arrived in 1980’s – Focuses on the relationship of law and power as a function of a racial hierarchy

• Proposes that laws favour “white privilege” and marginalize people of colour

• Would laws be different if they were made by people of colour, different sexual orientations, Aboriginal perspectives, etc…?

Critical Race Theory

• Bell & Freeman were frustrated by the slow pace of racial reform in the US

• Traditional approaches of combating racism were not as effective as they once were

• Can also include being marginalized by “race, sex, class, national origin, and sexual orientation, and how their combination plays out in various settings”

• End goal for CRT – “eliminate racial oppression as a broad goal of ending all forms of oppression”

• Laws should focus on equality, not oppression