THE ORIGINS OF LAW

Where do our Laws Come From?

“Law” can best be described as a legal iceburg – a small portion is visible and easily described, but a large portion is submerged and needs exploration.

THE LEGAL ICEBURGThe

Charter

Statutes (Written Law)

Case/Common Law

Traditions/Common Law

Jurisprudence: the philosophy/science of law.

The study of how the concepts, principles and institutions of law are

integrated

Law reflects the values that society holds in common, therefore, it can be very complex and confusing.

Thinking and asking about the law is part of the study of JURISPRUDENCE.

Jurisprudence defined: the science or philosophy of law; the study of the structure of the legal system.

Why study jurisprudence?

The study of jurisprudence ensures that changes to our laws are made with careful consideration and are informed by the insights of legal writers, law-makers, and scholars of the past.

SOURCES OF LAW

Where do our laws come from?Primary vs. Secondary Sources

To gain a better understanding of the law, one must examine both its practical and theoretical roots, which involves asking questions about the nature of law in our society. For example: What is the origin of our

laws that deal with crime? Why does Canada make

certain acts illegal, while other countries do not?

How do the economic, political, religious and cultural characteristics of a country affect its laws?

NEED TO KNOW: Jurisprudence Primary sources of law

Customs Conventions Religion Social and political

philosophies Secondary sources

The constitution Ultra vires Intra vires Judicial independence Parliamentary supremacy

Statute law Case law

Precedent Stare decisis Uniformity Impartiality

Canadian law is derived from many sources, which can be placed into 2 different categories:

1. PRIMARY SOURCES and,2. SECONDARY SOURCES

PRIMARY SOURCES

Those that have influenced our ideas and values about law over time; the original sources of law, including:Customs and conventions,Religion;Social and political influences.

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CUSTOMS: Unwritten laws that may become

established by long practice. For example, “squatters’ rights”.

CONVENTIONS: A way of doing something that has

been accepted for so long that it amounts to an unwritten rule.

For example, it is a convention in Canada for the prime minister to request the monarch to appoint only Canadian citizens to serve as governor general.

RELIG

ION

Religion has helped shape our law;

The primary source of our religious heritage is the Old Testament. For example:Moses and the Ten

Commandments - we have laws against murder and perjury.

The phrase “supremacy of God” is included in the beginning of the Charter of Rights and Freedoms.

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Many of our laws reflect social movements and political philosophies. For example, after the

Holocaust and the US civil rights movement in the 1950s and 60s, Canada passed the Human Rights Act in 1977;

after the Great Depression, legislation was passed that introduced social security and employment insurance.

SECONDARY SOURCES Current laws that enshrine a society’s

values in written rules and regulations that have been formulated by legislators and judges (written down and legally binding), including:The Constitution;Statute Law; and,Case/Common Law

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STIT

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N The most important

source of law; if any law or statute conflicts with it, the law or statute must be revised or repealed;

It sets the distribution of power between the different levels of government.

If a government does not have the authority to make a law because the law is outside its jurisdiction, it is said to be ULTRA VIRES, or outside its power;

If the courts determine the legislation is within the authority of the government, it is said to be INTRA VIRES, or within their power.

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In Canada, our constitution embodies the values and principles that Canadian law has derived from primary sources, such as religion, philosophy, and tradition.

The BNA Act inherited many principles of law from Britain, including JUDICIAL INDEPENDENCE, the

principle that judges function independently of the government, and

PARLIAMENTARY SUPREMACY, the principle that Parliament has the supreme power of making Canadian laws.

STATU

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Any law passed by federal or provincial governments (i.e. The Criminal Code).

Judges interpret the law through the cases referred to them. They do this by:

Focusing on the problem or mischief the statute was intended to correct;

Looking at the statute's wording itself;

By using legal dictionaries and scholarly articles.

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Also known as common law; Law is based on judicial

decisions; Case law involves a judge using

precedent, or decisions from previous cases with similar facts, when rendering his/her decision on a case. This is the RULE OF PRECEDENT, or the concept of STARE DECISIS.

Assumes that cases should be decided in the same way if the MATERIAL FACTS (the important facts of the case) are the same.

Judges rely on precedent when there is UNIFORMITY (like cases must be decided alike) and IMPARTIALITY (judges cannot permit their feelings for those involved in the case to enter into their judgments).

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Precedent can be over-turned: lower court decisions

can be over-turned by Appeal Courts,

the Supreme Court can even over-turn its previous decisions, BUT

judicial decisions from the highest court are binding on all lower courts, unless the government decides to make new laws.

This is important because it recognizes that decisions made in the past may not be appropriate today because societal values and laws are always changing.

Whenever judges make a decision, they must explain the reason for their verdict – the RATIO DECIDENDI – or reason for deciding.

Lawyers compare and contrast the ratio decidendi of cases and try to find similarities or differences that will support their argument.

Judges may also look to books and articles about the law written by professors, judges, and lawyers.

COMMON LAW• Case law –

judicial decisions, i.e. R. v. Askov

SUBSTANTIVE LAW• Statutes – e.g.:

the Criminal Code, Highway Traffic Act, Municipal Bylaws

CONSTITUTIONAL LAW• Canada Act,

1982• BNA Act, 1867• Charter of

Rights and Freedoms

CANADIAN LEGAL HIERARCHY

HIGHEST

LOWEST

Constitutional law trumps all other law!

ASSIGNMENT:Read pages 45 to 62 of the text and complete the following:

Landmark Case, questions 1 and 2 (p. 48) on page 48-49. Confirm Your Understanding p. 53 q. 7, 8. Create your own notes/organizer to explain the influence

the following have had on the development of Canadian Law: Babylon Greece Romans Aboriginals British French

Complete Confirm Your Understanding questions 4, 5 and 6 on page 62 of the text. For question 5 you should indicate the advantages and disadvantages of each system.