Chapter 1: Introduction to Legal System
What is Law? * Natural law theorists – only good rules are considered law * Legal positivists – rules enacted by those with authority to do so * Legal realists – rules Courts willing to enforce
Categories of Law * Substance Law v Procedure Law * Private Law v Public Law * Common Law v Civil Law
Origins of Law 3.1. Common Law Legal System * Precedent: Follow the previous similar case * Stare decisis: let the precedent stands * Advantages: consistency, predictability, without sacrificing flexibility * Binding: (1) same jurisdiction Or (2) Higher Courts 3.2. Civil Law Legal System * Judges followed codes (Napoleonic Codes)
Sources of Law
Common Law * Traveling Court Law Merchant | NI: such as Promissory note and cheques | Canon Law | Will, Estate | Church Law | Family Law |
Equity
* Courts of Chancellor or Equity: arising due to the rigidity of Common Law. To relief and Satisfaction * Examples: specific performance and injunctions * Courts of Equity merged with Common Law Courts in around 1875.
Statute
* Parliament enacted Bills, with Royal consent becomes Statutes * Court cannot override but judges can: i. Interpret the law (whether violate constitutions) and determine the scope of applications ii. Identify special factors and distinguish different facts (judge-made laws)
Law in Canada Constitution Act 1867 | Constitution Act 1982 | also known as British North American Act | included Charter of Rights and Freedoms | Division of legislative powers % federal and provincial government | | Sec. 91 Federal power set out in 91(P.O.G.G.) residual power to make law not mentioned in Constitution Act 1867Sec. 92 Provincial power set out in 92 | | Principle of Paramountcy: Federal and Provincial overlapped but consistent,