Law Study Notes- Heritage Unit
What does law do for us?
- Establishes rules of conduct: Creates a safer place for us to live while reducing or eliminating conflicts.
- Provides a system of enforcement: Police and courts oversee the operation of laws.
- Protect Rights and Freedoms: Laws help encourage tolerance and respect and protects our basic rights and freedoms.
- Protecting Society: Protects people from harm.
- Resolves Disputes: Laws create order and ensures disagreements are solved fairly.
How were laws established in the medieval times?
– Verdict by God: ‘God would protect you from harm if you were innocent’
– Trial by water: Accused got thrown into water with their hands tied behind their back – if they sank that meant that they were innocent because water represented purity, and the water accepted him/her.
– Trial by fire: Accused had to hold a burning hot rod. They would then get their hands wrapped and in 3 days get the wrap taken off. If their hand was infected or burnt they were guilty.
– Trial by combat: Two people had a sword fight, and whoever won was innocent. But if the winner was injured he/she would still get hung.
– Trial by compurgation: Victim chose 11 compurgators to prove innocence, but if accuser chose 11 witnesses with a higher ranking, victim was guilty.
How were laws made way back when?
– Usually based on common sense and the local customs and beliefs of the ancient civilizations.
– Passed on to future generations verbally.
What was the Code of Hammurabi?
– The most important/earliest records we have of written law recorded by King Hammurabi of Babylon in 1750 BCE.
– 300 laws were carved in columns of stone.
– CODIFICATION: Arranging written laws in a manner that is easily understood by citizens (Canadian laws today are codified)
– “An eye for an eye, tooth for a tooth” philosophy à retribution.
– Judges could now match offense and punishment by subjective judgement.
What was Mosaic Law?
– Moses gave laws to the Hebrew people.
– Mosaic law was written in 5 books of the old testament (includes the ten commandments)
– Lying under oath was forbidden, and people were required to pay damages either for negligent or criminal acts.
– Also followed retribution: For every crime there should be a deserved punishment. Mosaic Law had much harsher punishments. EX. Hitting your mother or father = death penalty.
– Also introduced restitution: Paying back the victim for the harm done by an offender.
What was Roman law?
– Began during the rule of the Roman Empire.
– Lawyers dedicated to study legal matters emerge.
– 1000 years worth of Roman law was codified by Emperor Justinian à creating the JUSTINIAN CODE.
– After the French Revolution, Emperor Napolean Bonaporte conquered Europe and created a new set of civil laws which was based on Roman law and the Justinian code.
– These laws emphasized equity (all people are equal under the law, regardless of wealth and power, which is the central theme in the Canadian constitution and charter of rights and freedoms.
– Basis of civil law in Quebec.
What are the branches of law?
– Natural law, moral law, positive law.
– Positive law is then branched out to common law and civil law.
– Common law and civil law can be substantive or procedural. Domestic or international.
– Private (civil) law is branched out to contract, property, tort, family, and corporate law.
– Public law is branched out to constitutional, criminal and administrative law.
What are the two basic types of law?
– Substantive: Consists of all laws that list rights and obligations of each person in society. Divided into private and public law.
– Procedural: Outlines the steps involved in protecting the rights under a substantive law.
What is public law?
– Controls the relationships between government and the people. (Criminal, constitutional, and administrative).
What is private (civil) law?
– Outlines the legal relationship between private citizens and corporations.
– The person who starts the case is the plantiff, and the other one is the defendant.
EX. Family, contract, tort, property and labour law.
Who has the level of proof in a court case?
– In criminal law, the crown attorney (prosecution) must prove the charges against the accused beyond a reasonable doubt.
Who has the level of proof in a civil case?
– The plantiff has to prove that the defendant is at fault and caused damage.
What is Canadian law based on?
– The laws of France and England (the countries that colonized Canada)
– FRANCE: law was codified and written down.
– ENGLAND: was not codified or written down until late England’s history.
What is Feudalism?
– The Kin g (William) of England introduced the Feudal system. The king owned al the land and divided it for nobles and lords.
– The lords were allowed to have servants – and if the servant committed a crime on the lord’s land the lord had a right to punish him/her. But the punishment was usually unfair.
– In order to keep justice, the King assigned judges to go around England and hold trials and decide on punishments. This way similar situation would be handled the same way (CASE LAW AKA. COMMON LAW).
– Common law was an improvement over the feudal system because everyone was served the same punishment, and if they did not like it they could appeal to the monarch.
What is a precedent?
– Ensures that similar facts result in similar decisions.
– Earlier cases are considered examples that should be followed. They influences and guide judges when they reach a verdict and pass a sentence.
– The rule of precedent introduces some certainty into the law: everyone can use past cases and arguments and expect a similar result (if reasonable)
– Having the same judgements and legal system throughout the country.
– Recorded written decisions of judges.
– Cases are recorded on paper or electronic form.
– Each case is given a citation.
What was the Magna Carta?
– King John of England that he was better than the law and often abused his power, so English nobility forced him to sign the Manga Carta, the “Great Charter” in 1215 that recognized the rule of law.
– Magna Carta guaranteed the rights of all citizens and Habeas Corpus.
– RULE OF LAW: The fundamental principle that law applies equally to all persons.
– HABEAS CORPUS: A document that requires a person to be brought to court to determine if he/she is being legally detained. (Everyone has the right to a free trial, if imprisoned).
Why was the parliament formed?
– Formed in 1265 by the nobles in order to make sure the monarch has less power. Revolted against King Henry III.
– Parliament made the laws of the country.
What is statue law?
– A law or act passed by a government body, such as Parliament or a provincial legislature.
– Many common law decisions made by the courts were codified by the parliament and made statue law.
What are Canada’s systems of Government?
– Constitutional Monarchy: A government ruled by a king or queen whose power is limited by law. In Canada the Governor General is the Queen’s representative, but the Queen does not actually have a role except for a traditional figure.
– Representative Democracy: A government is elected and controlled by a majority of the citizens. These citizens choose their representatives from different political parties at an election and whoever is elected represents the needs of its citizens.
– Federal System: Involves a central government and several provincial governments.
- Federal Government: Responsible for matters dealing with the entire country.
- Provincial Government: Responsible for looking after the problems and issues which affect the entire province.
- Municipal Government: Responsible for matters that affect a city or municipality. These powers are given to municipalities by provinces to deal with local matters.
What is the structure of Canada’s government?
– Divided into three branches in each level of government: legislature, executive, judiciary.
– Legislature: This branch creates laws, and is divided into two houses. The House of Commons where representatives from 308 different areas of Canada sit to discuss and create laws (Members of parliament). And the Senate are appointed members that review laws that are passed by the House.
– Executive: This branch thinks of laws. It consists of the Queen, the governor general, the prime minister, and the cabinet.
– Judiciary: This branch enforces laws. It is made up of the courts and its purpose is to oversee the other branches o f government, to put a limit on power.
What is a constitution?
– A fundamental set of principles set by the government which is the basis of other laws.
– It is the supreme instrument of legal authority that should reflect the shared economic, social, and political values of a nation’s citizens. Its purpose is to establish a blueprint of how a country should be run.
What are the types of constitutions?
– Written Constitution: A comprehensive statement of the basic principles of government and the rights of people. A single document that is supreme over all laws, and provides a valuable symbol that reinforces the community’s held values of society.
– Unwritten Constitution: Unwritten laws of discretion. Traditional values that have constitutional status, but are not formally written down such as conventions.
– Hybrid Constitutions: A constitution that includes written and unwritten elements. *CANADA DOES THIS.
What was the British North America Act?
– On July 1, 1867 British parliament passed our first constitution, creating the domain of Canada with four provinces: Ontario, Quebec, New Brunswick, and Nova Scotia.
– Canada was still not fully independent because we could not control our foreign affairs and our highest court was still the Judicial Committee of the Privacy Council in Britain.
Why was the Statue of Westminster important?
– In 1931 Britain allowed Canada to control foreign affairs and the Supreme Court of Canada became the highest court.
– But Canada still had to ask Britain for any changes they wanted to make in the country – still bound by the BNA.
What was the Constitution Act?
– This act lists federal, provincial, and territorial government powers. Outlines which government controls what. Provincial government also made municipal governments which control communities (bylaws)
– The Constitution was transferred to Canada from Britain on April 17, 1982 (BNA act was renamed Constitution Act) and Canada became an independent country. This process is called patriatation.
– Canadian Charter of Rights and Freedoms and amending formula are key elements of the constitution.
– AMENDING FORMULA: In order to change a constitutional law, the federal government and at least two-thirds of the provinces with 50 percent of the population must agree.
How is power divided between governments?
– Separated into two sections: Section 91 is Federal which deals with peace, order, and government, criminal law, aboriginal lands etc. And section 92 is provincial which deals with property and civil rights, hospitals, the police force, etc.
What does intra vires mean?
– Within the jurisdiction of
What does ultra vires mean?
– Outside the jurisdiction
What is a preferred legislation (law) referred to as?
– A bill. Once it is passed though, it is an act or statue of law.
In what order is a bill passed?
FIRST READING (House of Commons):
- Bill introduced by CABINET MINSTER or PRIVATE MEMBER. State the bill’s general purpose.
- First vote taken
SECOND READING (House of Commons):
- Bill introduced again and debated in general
- Second vote taken
- Bill usually sent to a select committee, standing committee, or committee of the whole house.
- Bill studied in detail, and changes (amendments) often made; each section may be voted on separately.
THIRD READING (House of Commons)
- Bill briefly debated, and changes discussed.
- Third vote taken.
- Bill goes through three readings and committees, as in the House of Commons.
- Signs bill to become a law (royal assent)
What’s the difference between provincial and federal legislation?
– There is no senate and the lieutenant governor signs it rather than the governor general.