Canadian Law: an Introduction

Week One: Lecture and notes to supplement your textbook

Goals of this lecture

•To descr ibe why i t is important to study the Canadian Legal System

•To review the role of law and the theor ies of law from Chapter One of the textbook

•To defi ne the important ideas and terms in the Canadian legal system

•To descr ibe the branches of government

Goals of this lecture

• Why study the Canadian Legal System?

• Review the role of law and the theories of law

• Defi ne important ideas and terms of the Canadian legal system

• Describe the branches of government

Why study the Canadian Legal System?

• Legal System based on British tradition

• All aspects of our lives are regulated by law

• Important role in our diverse society

Why is law so important in Canada?

• Because Canada is such a diverse nation with peoples from many cultures, the law and the rule of law is the glue that binds our cultural mosaic together.

• Other countries have stronger uniform cultures and the norms and folkways of their countries guide their citizens.

• Canada has diverse cultures and we need law for stability and guidance

What is law?

What is law?

James (p.5) defines law as:

“a set of rules which are generally obeyed and enforced within a politically organized society”

• Imposed by the ‘sovereign’• Aim of the law is a better civilization

What are traditional theories of law?

Theories of law

• Positivism• Natural legal theory• Realism• Critical theories

What is Positivism?

Positivism• Validly enacted law (posited law by the sovereign) should be followed• Looks at the form and structure of the law, not the moral or social content• A positivist asks what the law is, not what the law should be. The law is the law.• Helps keep society stable, law is predictable and consistently applied

What is Natural Legal Theory?

Natural Legal Theory

• Naturalist believes in a higher system to which mere positive law should conform• Positive/ man made law must conform to natural order or law• Morality and the law must combine• Tradition based on religious ideas and Greek ‘objective morality’• The basis of civil rights• Helpful in environmental law, changing times

What is Realism?

Realism• We must look beyond the law and take into account ‘extra-legal’ factors such as public opinion, circumstances, changing times• Law must be viewed in the context of society• Looks beyond the facts in evidence and cold legal rules

What are Critical Legal Theories?

Critical Legal Theories

Examples:•Marxist theory is based on economic equality.•Feminists believe the legal system is peopled mostly by males and favors their interests.•Critical legal theory is the idea that the law is dysfunctional and limited. Challenges the very basis of the legal system and process.

Critical Legal Theories

•Marxist Theory

•Radical Feminists

•Critical Legal Theory

What are some main ideas and terms in the Canadian

system?

Main ideas

Constitutional monarchyDemocracy

Federal StateParliamentary supremacyResponsible government

Rule of Law

What is the Rule of Law?

Rule of Law

Fundamental principle of democracy.

No one is above the law.

All people are equal before and under the law.

Rule of Law

Law must be:GeneralPublic

ProspectiveClear

ConsistentCapable of being followed

StableEnforced

What are the main branches of Government?

Government

Separation of Powers:• Judicial• Legislative• Executive

Unitary court systemAdministrative tribunals

What is the Consensus View?

Consensus View

The view that our laws are made by consensus. We democratically elect our government who makes our laws for the benefit of all. For the most part, the public agrees with the law.Eg. Murder.

What is the Conflict view?

Conflict View

The view that the rich and powerful in society make the laws for their

vested interests and their benefits, to the detriment of the poor and

underclass.

Eg. Treat men of “white collar’