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Primary and Secondary Sources of Law
CLN4U – Mr. Andrez
Roots of Lawo most laws that we use today did not
appear out of nowhere o they have evolved over the years o all laws have roots and histories
o the knowledge of these roots and influences is part of Jurisprudence -the science and philosophy of law o Jurisprudence can also mean being skilled in
the legal field
o sources of the law can be divided into two types: Primary and Secondary
Primary Sources of Lawo Primary sources are
ideologies, beliefs and philosophies that have influenced our society’s ideas and values over the years
o They are religious, social and philosophical views that have led to our existing legal system
o The biggest influence was from Britain
Religion
Religiono even in secular societies, most laws
are based on religion in some way o Mosaic Law is the basis of Judeo-
Christian teaching o Judeo-Christian teaching is the basis
of Canadian law o VI: Thou shall not kill (murder) o VIII: Thou shall not steal (theft/robbery) o IX: Thou shall not bear false witness
(perjury)o Early Canadian laws were steeped in
moral and religious ideas i.e.:o -Lord’s Prayer in schools o -Lord’s Day Act, Sunday shopping
Religion Cont…
o Even the preamble of the Charter begins with:o “Whereas Canada is founded upon principles that
recognize the supremacy of God and the rule of law.”
o Ontario Education Act Section 264 (1)(c)
o -“It is the duty of a teacher and a temporary teacher:…to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues;”
o Canada has no official separation of Church and State
o Religion is recognized as a fundamental right in Canada
Customso another example
of a primary source is a custom
o customs may be entrenched, prohibited
o They are usually written down
o some evolve over time, while others are legislated o i.e. Peter the Great
and the beard tax, westernization
o Diplomatic immunity
Conventionso a less formal, usually unwritten form of
custom is a convention
o a commonly accepted way of doing things o i.e. in Canada the party with the largest number
of seats in the House of Commons forms the government
o i.e. PM is usually an MP rather than a Senator
o while these aren’t written down the Governor General usually follows these conventions - but he/she doesn’t have to
o these are different from conventions like the Geneva Conventions
Secondary Sources of Lawo All the laws in Canada fall
into one of three categories:
o Constitutional lawo Statute lawo Common law or Case law
Constitutional Lawo Developed in 1867
with the British North America Act
o Refined in 1931 with the Statue of Westminster—more independence for Canada
o Patriated in 1981 with the addition of an amending formula
o 2/3rd of the provinces comprising 50% of the population
Constitution cont…
o 1982—Charter of Rights and Freedoms
o The most important laws in Canada
o Gave more power to the Courts
o All laws must be balanced with the rights and freedoms outlined in the Charter
Statute Lawo These are the laws passed by
Parliamento The second most important
laws in Canadao Laws are enacted by the
Members of Parliament that are elected by Canadian voters
o All statutes must be consistent with the rights and freedoms guaranteed within the Charter
Statute Law cont…
Common Lawo Common law relates to decisions
made by judges in previous caseso This is the biggest area of law,
but is the lowest level on the legal hierarchy
o Again, all decisions must be consistent with the Charter of Rights and Freedoms
o Laws made by judges based on precedent
Types of lawo Note the order of
importance
o Both Constitutional law and Common law are highly influenced by Judge’s Decisions
o Statute law is Government made law; must be consistent with the Charter
Constitutional law
_____________
Statute law_____________________
Common law