Part 1 – Introduction to the LawPart 1 – Introduction to the Law

Chapter 1 – The Chapter 1 – The Law and the Legal Law and the Legal SystemSystem

Prepared by Douglas Peterson, Prepared by Douglas Peterson, University of AlbertaUniversity of Alberta

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Chapter 1 - OverviewChapter 1 - Overview

The Nature of LawThe Nature of Law Rights and PrivilegesRights and Privileges The Role of LawThe Role of Law Development of LawDevelopment of Law Sources of LawSources of Law Constitution and the Charter of RightsConstitution and the Charter of Rights Classification of LawsClassification of Laws

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Legal Environment of BusinessLegal Environment of Business

Business lawBusiness law Divided into a number of general areasDivided into a number of general areas

Tort law – injuries to another's person, property or Tort law – injuries to another's person, property or reputationreputation

Contract law – day-to-day operations of a businessContract law – day-to-day operations of a business Business OrganizationsBusiness Organizations

– Partnership, sole proprietorship, corporationPartnership, sole proprietorship, corporation Land LawLand Law Intellectual PropertyIntellectual Property Environmental LawEnvironmental Law

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Nature of LawNature of Law

Reflects the society we live inReflects the society we live in Historical influencesHistorical influences DefinitionsDefinitions

A set of rules enable people to live together and A set of rules enable people to live together and respect each others rightsrespect each others rights

Rules of civil conductRules of civil conduct

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Rights versus PrivilegesRights versus Privileges

Distinguish between a right and a privilegeDistinguish between a right and a privilege Right – the “right” to do somethingRight – the “right” to do something

Rights are associated with dutiesRights are associated with duties Privilege – under certain circumstances and can Privilege – under certain circumstances and can

be taken away by the Statebe taken away by the State Rights can become privilegesRights can become privileges

Due to social pressure or the state’s desire for Due to social pressure or the state’s desire for fundsfunds

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Role of LawRole of Law

Law – body of rules of conduct that are obligatoryLaw – body of rules of conduct that are obligatory Sanctions imposed if a rule is violatedSanctions imposed if a rule is violated Social Control – using laws to shape societySocial Control – using laws to shape society

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Role of LawRole of Law

3 Functions of the Law3 Functions of the Law1.1. Settlement – settle disputesSettlement – settle disputes

2.2. Rules – to bring order and minimize conflictRules – to bring order and minimize conflict

3.3. Protection – of one’s self, possessions, ideas.Protection – of one’s self, possessions, ideas.

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Development of the LawDevelopment of the Law

Within the Family Within the Family word of mouth from generation to generationword of mouth from generation to generation Early form of precedentEarly form of precedent

Within the City-StateWithin the City-State Formation of governments to deal with disputesFormation of governments to deal with disputes Roman Empire, Western Europe, Middle EastRoman Empire, Western Europe, Middle East

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Common LawCommon Law

Customary Law Customary Law Religious lawsReligious laws Community basedCommunity based

Pre-Norman EnglandPre-Norman England Roman law followed by Germanic influence to the Roman law followed by Germanic influence to the

Norman conquest in 1066Norman conquest in 1066

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Common LawCommon Law

Norman EnglandNorman England Power consolidated with the King and the King’s Power consolidated with the King and the King’s

justicesjustices Central judiciary established under King Henry IICentral judiciary established under King Henry II

Beginning of the precedent system of common lawBeginning of the precedent system of common law Written records began to be keptWritten records began to be kept

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Sources of LawSources of Law

Common LawCommon Law Law as found in the recorded judgments of the Law as found in the recorded judgments of the

courtscourts ““case law”case law”

Stare Decisis – “to let a decision stand” applies Stare Decisis – “to let a decision stand” applies if:if:

1.1. From the judges own courtFrom the judges own court

2.2. Form a court of equal rankForm a court of equal rank

3.3. From a court of higher rankFrom a court of higher rank Bound to follow the decisionBound to follow the decision

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Common LawCommon Law

Creates certainty and predictabilityCreates certainty and predictability Predictable yet flexiblePredictable yet flexible

More flexible than a civil codeMore flexible than a civil code Can adapt to social changes such as same sex Can adapt to social changes such as same sex

marriagemarriage

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Sources of LawSources of Law

Canon Law – church lawCanon Law – church law Original jurisdiction over religion, family, marriage, Original jurisdiction over religion, family, marriage,

morals, estatesmorals, estates Influence today (Sunday shopping laws)Influence today (Sunday shopping laws)

Merchant LawMerchant Law Customs or rules established by merchants to Customs or rules established by merchants to

resolve disputesresolve disputes Example today would be the sales of goods Example today would be the sales of goods

legislationlegislation

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Sources of LawSources of Law

EquityEquity Rules originally based on decisions of the King Rules originally based on decisions of the King

rather than on the lawrather than on the law Fairness, equality, justiceFairness, equality, justice Overcomes the harshness and rigidity of the Overcomes the harshness and rigidity of the

common lawcommon law Takes precedence over common law when equity Takes precedence over common law when equity

and common law conflictand common law conflict Overtime decisions of the King became principles of Overtime decisions of the King became principles of

equityequity

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Statute LawStatute Law

Statute Statute Latin word “statutum” meaning “it is decided”Latin word “statutum” meaning “it is decided” Laws made by governmentsLaws made by governments Result of legislative processResult of legislative process Voted upon and passed through a processVoted upon and passed through a process

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StatuteStatute

ProcessProcess1.1. Bill – proposed law presented to a legislative bodyBill – proposed law presented to a legislative body

2.2. Motion – decision to read a bill the first timeMotion – decision to read a bill the first time

3.3. Royal Assent – granted by the Governor General Royal Assent – granted by the Governor General or Lieutenant Governoror Lieutenant Governor1. Required in order to become law1. Required in order to become law

4.4. Proclaimed – when a law becomes effectiveProclaimed – when a law becomes effective Revised Statutes – updated or amended to Revised Statutes – updated or amended to

reflect changes in societyreflect changes in society

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Quebec’s Civil CodeQuebec’s Civil Code

Influence of the French Civil Code systemInfluence of the French Civil Code system A body of written law that sets out private rights of A body of written law that sets out private rights of

the citizens of the statethe citizens of the state Historical from Prussia and codified by Napoleon in Historical from Prussia and codified by Napoleon in

the 1800’sthe 1800’s Recent code is from 1994. Recent code is from 1994.

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Codification of Common LawCodification of Common Law

Codification of the common law into statutesCodification of the common law into statutes Bills of Exchange Act; Partnership Act; Sale of Bills of Exchange Act; Partnership Act; Sale of

Goods ActGoods Act Took place during late 1800’sTook place during late 1800’s Advantage over common law is certaintyAdvantage over common law is certainty Still requires judges interpretationStill requires judges interpretation

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Administrative LawAdministrative Law

A body of rules governing the application of A body of rules governing the application of statutes to activities regulated by administrative statutes to activities regulated by administrative tribunals or boardstribunals or boards

Regulations – procedural rules made under a Regulations – procedural rules made under a statutestatute

Administrative Tribunals – agencies created by Administrative Tribunals – agencies created by legislation to regulate activities or do specific legislation to regulate activities or do specific thingsthings

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Constitutional FoundationsConstitutional Foundations

Constitution Constitution basis upon which a state is organized, and the basis upon which a state is organized, and the

powers of government definedpowers of government defined The supreme law The supreme law 2 Major Parts2 Major Parts

Canadian Charter of Rights and FreedomsCanadian Charter of Rights and Freedoms Amending FormulaAmending Formula

1867 B.N.A. Act and 1982 Canada Act1867 B.N.A. Act and 1982 Canada Act

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ConstitutionConstitution

Division of PowersDivision of Powers Section 91: Federal powersSection 91: Federal powers Section 92: Provincial powersSection 92: Provincial powers

Residual powerResidual power given to the federal government; all matters not given to the federal government; all matters not

expressly given to the provinces belongs to the expressly given to the provinces belongs to the federal governmentfederal government

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Charter of Rights Charter of Rights

Sets out basic rights and freedoms of all Sets out basic rights and freedoms of all CanadiansCanadians

Entrenched in the ConstitutionEntrenched in the Constitution Section 1 (Reasonable Restrictions)Section 1 (Reasonable Restrictions)

The Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and law as can be demonstrably justified in a free and democratic society. democratic society.

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Charter of RightsCharter of Rights

Notwithstanding Clause (s.33)Notwithstanding Clause (s.33) Permits the government to pass legislation that Permits the government to pass legislation that

conflicts with or overrides charter rights by way of a conflicts with or overrides charter rights by way of a “notwithstanding clause”“notwithstanding clause”

Some sections of the Charter cannot be overriddenSome sections of the Charter cannot be overridden Sunset clause – s.33 last for a five year period, Sunset clause – s.33 last for a five year period,

unless renewedunless renewed

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Fundamental FreedomsFundamental Freedoms

S.2S.2 Freedom of conscience and religionFreedom of conscience and religion Freedom of thought and expressionFreedom of thought and expression Freedom of the pressFreedom of the press Freedom of peaceful assemblyFreedom of peaceful assembly Freedom of associationFreedom of association

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Other RightsOther Rights

Mobility Mobility Permits free movement within CanadaPermits free movement within Canada

Personal LibertyPersonal Liberty Enjoy life without interference of the StateEnjoy life without interference of the State Life, liberty and security of the personLife, liberty and security of the person Right to be free from unreasonable search and Right to be free from unreasonable search and

seizureseizure Free from arbitrary detention or imprisonmentFree from arbitrary detention or imprisonment

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Other RightsOther Rights

Right to Due ProcessRight to Due Process Informed of rights on arrestInformed of rights on arrest Right to a lawyerRight to a lawyer Only arrested for committing an offenceOnly arrested for committing an offence Innocent until proven guiltyInnocent until proven guilty Right to fair trials, reasonable bailRight to fair trials, reasonable bail

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Other RightsOther Rights

Equality RightsEquality Rights Every individual is equal before the lawEvery individual is equal before the law Note language of charter language: person, citizen, Note language of charter language: person, citizen,

individualindividual No discrimination based on race, creed, colour, No discrimination based on race, creed, colour,

religion, sex, age, national or ethnic origin or any religion, sex, age, national or ethnic origin or any mental or physical disabilitymental or physical disability

Affirmative action is allowed for disadvantaged Affirmative action is allowed for disadvantaged groupsgroups

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Other RightsOther Rights

Language RightsLanguage Rights 2 official languages of English and French2 official languages of English and French Government (federal) provide services in both Government (federal) provide services in both

official languagesofficial languages Rights of education in preferred languageRights of education in preferred language

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Enforcement of RightsEnforcement of Rights

Apply to the courtsApply to the courts Charter only applies to governments not private Charter only applies to governments not private

groupsgroups Private matters dealt with through human rights Private matters dealt with through human rights

legislationlegislation ““Read Into” the recent trend of courts to read into Read Into” the recent trend of courts to read into

the Charter words or provisions that the legislative the Charter words or provisions that the legislative bodies did notbodies did not

Reference Cases – example is the Same Sex Reference Cases – example is the Same Sex Marriage caseMarriage case

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Classification of LawsClassification of Laws

Substantive LawSubstantive Law All laws that set out the rights and duties of All laws that set out the rights and duties of

individualsindividuals Procedural LawProcedural Law

Procedures taken to enforce a substantive lawProcedures taken to enforce a substantive law Substantive RightSubstantive Right

An individual right enforceable at lawAn individual right enforceable at law Public LawPublic Law

Relates to relationship between governments and Relates to relationship between governments and personspersons

Private LawPrivate Law Relates to relationship between individualsRelates to relationship between individuals

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SUMMARYSUMMARY

Law is the means by which state maintains social Law is the means by which state maintains social controlcontrol

Courts used as vehicle of enforcementCourts used as vehicle of enforcement Common law and statute law exist today Common law and statute law exist today

Precedent “stare decisis” exists in our systemPrecedent “stare decisis” exists in our system Charter RightsCharter Rights

S.1 not absoluteS.1 not absolute S.33 can be overridden with notwithstanding clauseS.33 can be overridden with notwithstanding clause

Substantive rights and law enforced through Substantive rights and law enforced through procedural lawprocedural law