Chapters 2 and 3 Law Test Review Sheet

• Primary Sources of Canadian Law

Primary Sources of Canadian Law: Influence of Religion and Morality

Canada’s laws reflect its Judeo-Christian heritage, primarily derived from the Old Testament of the Christian Bible, whose first five books form the Jewish Torah. When Christian missionaries and colonists arrived in Canada during the 16th and 17th centuries, they brought their religious beliefs with them.

Beyond religious influences, Canada’s legal system is also shaped by moral philosophy and ethics. Laws reflect a strong moral sense that certain actions, such as murder, are inherently wrong—not only because religion forbids them but because human reason dictates so. As society's moral values evolve, laws may be revised to reflect these changes.

Historical Influences on Canadian Law

1. Greek Influences
   
   

   • The Greeks were the first Europeans to practice democratic ideals in their political and legal systems.

   • They had a limited democracy, where only native-born men over 18 could participate; women, foreigners, and slaves were excluded.

   • Citizens were expected to take an active role in politics, including voting, holding public office, and serving in the military.

   • Criminal trials were conducted by juries of fellow citizens, without judges or lawyers. Defendants represented themselves, and juries acted as judges.

2. Roman Influences
   
   

   • In 449 B.C.E., the Romans codified their laws in the Law of the Twelve Tables, covering aspects of daily life such as marriage, court cases, and property rights.

   • As laws became more complex, Rome introduced legal specialists (lawyers) to assist citizens.

   • By the 6th century B.C., Emperor Justinian compiled and organized Roman laws into the Code of Justinian, which became the legal standard across the empire.

   • Canada has adopted key aspects of the Roman legal system, including the use of legal codes and professional lawyers.

3. Indigenous Influences

• The framers of both the U.S. Constitution and the Charter of the United Nations referred to the Iroquois Great Binding Law in drawing up their own legal documents.

• In Canada today, under the terms of the Indian Act, most Indigenous peoples have the authority to make and enforce the equivalent of municipal bylaws on their reserves.

• Some have negotiated rights of self-government with the federal government in Ottawa.

4. British Influences

• Britain has had a greater influence on the government and laws of Canada than any other country.

• Such fundamental rights as:

  • Trial by a jury of one’s fellow citizens (adopted from Greek law).

  • Presumption of innocence and rule of law (adopted from Roman law).

• These rights are entrenched in the Constitution in the Canadian Charter of Rights and Freedoms.

5. Medieval England’s Justice System

• No standard way of deciding a person’s guilt or innocence.

• Systems of adjudication varied from place to place and were influenced by local custom and superstition.

• Methods included:

  • Trial by ordeal.

  • Trial by combat.

Legal Reforms

• 11th century: William the Conqueror

  • Gave authority to judge local disputes to barons or landholders.

  • Eliminated some superstitious customs but still had inconsistencies in judgment.

• 12th century: King Henry II

  • Trained circuit judges who traveled and held assizes (travelling courts).

  • Judges noted similarities in cases, allowing for consistent rulings.

  • They began writing down their decisions → Became case law (common law).

  • Established the jury system.

• King John (Henry’s son)

  • Forced to sign the Magna Carta by rebellious barons.

  • Magna Carta:

    • Recognized rule of law.

    • Guaranteed the right of the accused to be considered innocent until proven guilty.

6. French Influences

• Quebec was settled by people from France → Brought the French Civil Law.

• 1774: Quebec Act

  • Established British criminal law and a British colonial government in Quebec.

  • Retained French civil law.

• 1804: Napoleonic Code (French Civil Code)

  • Became the foundation of the Civil Code of Quebec.

  • In this system:

    • Precedents are not as important in deciding cases as in a common law system.

    • Judges refer to the Code and scholarly interpretations.

7. Influence of Customs and Conventions

• Custom: A long-established way of doing something that, over time, has acquired the force of law.

• Convention: A way of doing something that has been accepted for so long that it amounts to an unwritten rule.

8. Influence of Social and Political Policy

• Social movements and political philosophies have also influenced Canada’s laws.

• Examples:

  • Public reaction to the horrors of the Holocaust (WWII) and the U.S. Civil Rights Movement (1950s–1960s) helped lead to the Canadian Human Rights Act (1977).

  • The Co-operative Commonwealth Federation (CCF) Party (forged during the Great Depression, 1930s) had a direct impact on:

    • Social security.

    • Employment insurance.

    • Workers’ compensation benefits.

• Secondary Sources of Canadian Law

• Secondary sources of law consist of laws and reported cases that have been written down by lawmakers.

• These sources enshrine a society’s values, beliefs, and principles in written rules and regulations.

• In Canada, lawmakers include Members of Parliament and judges who render legal decisions.

• The three secondary sources of law in Canada:

  • The Constitution

  • Statute Law

  • Case Law

Hierarchy of Secondary Sources of Law

• These sources form a pyramid, with the Constitution at the top and case law at the bottom.

• The Constitution is the most important source. If a statute conflicts with it, the statute must be revised or repealed.

• Statute law takes precedence over case law, except when courts find a statute unconstitutional.

The Constitution

• Embodies the values and principles derived from primary sources such as philosophy, religion, and tradition.

• Constitutional law: Deals with the distribution of government powers and sets out key legal principles.

• The written Constitution consists of several documents, most linked to Britain’s legal traditions.

Key Constitutional Documents

• British North America Act (Constitution Act, 1867)

• Judicial Independence: Judges function independently of the government. Their decisions reflect legal interpretation rather than government policy.

• Parliamentary Supremacy: Parliament has the supreme power to make Canadian laws.

Amendments to the Constitution

• Over time, Canada’s Constitution was amended by acts of the British Parliament.

• 1982: Patriation of the Constitution

  • Canada gained the right to amend its own Constitution.

  • This was entrenched in the Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms.

• Court decisions have also shaped constitutional law by clarifying various legal principles.

• If a law violates a Charter right, courts can strike down part or all of the law and direct Parliament to amend or repeal it.

• Case law

• Judges must provide written decisions explaining their rulings.

• These decisions form a body of case law.

• Stare decisis: A precedent must be followed if set by a higher court.

Exceptions to Precedent

• A precedent may not apply if:

  • It comes from another province.

  • The circumstances of the case are different.

  • Times have changed, making the precedent outdated.

• Judges can distinguish the precedent and explain why it does not apply.

Legal Research

• Lawyers and judges study case law from law reports and online legal databases due to the cost of printed reports.

• Statute law

Statute Law and Statutory Interpretation

• Statute Law: Any law passed by federal or provincial governments.

• Judges interpret laws through cases brought before them.

• They follow rules of statutory interpretation to clarify legal meanings.

• Categories of Law

Categories of Law

Substantive vs. Procedural Law

• Substantive Law: Identifies the rights and duties of individuals and governments.

• Procedural Law: Outlines the methods and procedures for enforcing substantive law.

Domestic vs. International Law

• Domestic Law: Governs activities within a country.

• International Law: Has jurisdiction over multiple countries.

Public vs. Private Law

• Public Law: Governs relationships between individuals and the government.
  
  

  • Constitutional Law: Sets rules on government powers and governance.

  • Administrative Law: Governs relations between individuals and government agencies.

  • Criminal Law: Prohibits and punishes actions harmful to individuals, property, and society.

• Private Law: Regulates disputes between individuals, businesses, or organizations.
  
  

  • The plaintiff sues the defendant.

  • The case is decided on the balance of probabilities, a lower standard than "beyond a reasonable doubt" in criminal law.

Subcategories of Private Law

• Family Law: Governs relationships within families.

• Contract Law: Regulates agreements to buy or provide goods/services.

• Tort Law: Covers civil wrongs and damages that do not arise from a contract.

• Estate Law: Regulates wills, probate, and property distribution after death.

• Property Law: Covers buying, selling, and renting land/buildings.

• Feminist Jurisprudence

• The development of feminist jurisprudence is a product of the women’s liberation movement of the 1960s.

• Feminist theory argues that the law has been used as an instrument of oppression for women, similar to Marxism's view of oppression of workers by the capitalist ruling class.

• Feminist theorists challenge the idea that the law is objective and neutral, asserting that women have been treated differently under the law.

Three Forms of Unequal Treatment According to Feminist Scholars

• Explicitly discriminatory laws:
  
  

  • Women were not considered “persons” under the law until 1929.

  • The Women’s Franchise Act (right to vote) passed in 1918 for women over 21.

  • Women could not vote in Quebec provincial elections until 1940.

  • Until 1925, a man could file for divorce on grounds of adultery, but a woman could not unless she proved desertion in addition to adultery.

• Failure to address women’s distinct needs:
  
  

  • In Brooks v. Canada Safeway Ltd. (1989), the Supreme Court of Canada ruled that group insurance plans denying benefits to pregnant women were illegal.

• Systemic bias in legal institutions:
  
  

  • Legal institutions are biased against women attaining positions of power and prestige.

• Legal Philosophers

Socrates (470–399 BCE)

• Greek philosopher known for his method of dialectic, engaging people in discussions about justice, virtue, and knowledge.

• He believed in natural law, stating that law must guide people toward a moral life, as seen in his defiance of the Athenian government's order to trial generals in a way contrary to the law.

• Socrates' views emphasize that true justice is found in obeying the law aligned with eternal principles.

Plato (427–347 BCE)

• A student of Socrates, Plato believed in natural law and argued that justice exists when individuals and society work in harmony.

• In The Republic, he states that justice in individuals arises from reason, with their powers in balance. Similarly, the state's justice is found when each class performs its role without interfering with others.

• For Plato, law is a tool to achieve the good life, and he viewed it as closely related to morality.

Aristotle (384–322 BCE)

• A student of Plato, Aristotle saw humans as political animals, using reason to distinguish right from wrong.

• Aristotle believed that while education was important, law played a crucial role in regulating people’s behavior, especially those ruled by their passions.

• Law, for Aristotle, has a moral purpose, helping citizens live according to reason, which he considered the divine spark in humans.

St. Thomas Aquinas (1224–1274)

• A Christian philosopher who adapted Aristotle's ideas, Aquinas identified four kinds of law: eternal law, natural law, divine positive law, and human positive law.

• He argued that human law should align with natural law, and unjust laws that conflict with divine law are not truly laws.

• Aquinas believed that law is an ordinance of reason made for the common good, and humans are bound to obey just laws that align with God’s will.

Thomas Hobbes (1588–1679)

• In Leviathan, Hobbes argued that in the state of nature, life was "solitary, poor, nasty, brutish, and short."

• People formed governments and laws not to recognize natural rights, but to avoid perpetual conflict and ensure self-preservation.

• Hobbes believed that a sovereign ruler must have absolute power to enforce the law and prevent anarchy.

John Locke (1632–1704)

• Locke’s philosophy emphasized the protection of natural rights: life, liberty, and property.

• Locke believed that governments are formed through consent of the governed to protect these rights. If a government violates these rights, people are justified in rebelling.

• His ideas influenced the American Revolution and the Declaration of Independence, stressing that laws should not infringe on fundamental rights.

Jeremy Bentham (1748–1832)

• Bentham developed utilitarianism, where laws should be evaluated based on their ability to provide "the greatest happiness for the greatest number".

• He emphasized the utility of laws in promoting overall societal happiness.

John Austin (1790–1859)

• Austin followed Bentham’s utilitarianism but argued that law should be distinct from morality.

• He proposed that positive law is what must be followed, as it is an objective measure of societal rules, regardless of moral considerations.

Karl Marx (1818–1883)

• Marx viewed law as an instrument of class rule, with the ruling class using the law to protect its interests and control the working class.

Marxism argues that laws are tools of oppression in capitalist societies, serving the interests of the powerful rather than the people.