What is Law? Baby don’t hurt me - Publicly established and prescribed rules we must follow, failing which we may suffer some consequence - A reflection of societal values, evolving with a change in value o Traceable to some common value in society I.e. marijuana legalization - The process by which disputes are resolved Rule of Law - Upholds a society governed by order rather than force o Not might is right (the “weak” as well as the “powerful” are equal under the law - Governed by rationality rather than arbitrariness o Law rooted in reason and reflecting public values o Are created and enforced for a reason - A society in which both individuals and government are regulated by law - A society in which the relationship between state and individual is regulated by law - A society in which people have access to a neutral arbiter in resolving disputes o With the arbiter applying settled, consistent and rationally defensible general principles o Not retroactively o These are the court systems (the judicial system arbitrates disputes between individuals and between state and individual) Sources of Law - - - Statutes o Broad and highly applicable rules passed by legislatures Principles to be broadly applied Establish the basic foundational principles o Highly diverse Regulations (subordinate legislation) o Detailed rules refining, applying and further describing the broad statutory statements o Passed by the Governor-in-council (the cabinet) Legislative branch delegates to the cabinet the responsibility to refine the broad principles established in legislature Administrative bodies o Institutions charged with administrating specific laws when not appropriate for the cabinet to do Administrative bodies are involved when administration requires niche expertise, is too complex, too time intensive o Created by statute (enabling legislation) o Delegated authority to create rules and policies o Semi-autonomous Law society of Ontario is a direct example of such an administrative body The law society act creates the law society of Ontario This act also empowers the Law society to enact by-laws o Goes on to create and enforces the rules of professional conduct o Manage licensing and disciplinary tasks related to the professional rules and conduct established - - - - Common Law (court decisions/case law) o Rules laid down by the courts/administrative tribunals o Based on decisions resolving particular disputes o Each decision determines the law as it applies to that dispute and (in theory) helps determine the law applicable to other similar matters Based on the principle of Stare Decisis, the idea that like cases should be decided alike Court decisions guide the determination of future similar matters by courts (precedent) Bee’s act, when have the bee’s settled in bobs hive? o The courts will create a rule establishing what “settling” entails (i.e., Settling = 2 weeks there) o Thus, similar cases in the future can be decided based on this rule Constitution o Supreme law of the country, to which all other laws must conform o Very broad statements of general principle that are given concrete application by the courts Private individuals and organizations o Through contracts o Subject to some limitations Etc. o i.e., international law Different primary sources - Different areas of law have different sources as the main wellspring o Some are mostly grounded in common law i.e., torts, contracts, property o some are mostly grounded in statute i.e., (substantive) criminal law, constitutional law (sort of) - All are product of multiple sources o How do they interact? Interplay - Various sources interact with one another and affect each other - There is a hierarchy of sources o Some sources have greater relevance over others 1. Constitution o The highest source of law, which all other laws must abide 2. Statutes and regulations o Limited by the constitution 3. Courts o Both the constitution and the statutes and regulations are understood and applied by the courts o In this way, the courts have the final say in how the law is applied through its decision making With the courts understanding of the law, they can decide how the law applies in varying situations Who makes the law? - - - - Parliament o Can make federal laws o Authorized to make laws respecting matters assigned to it by the constitution Act, 1867 Can only enact laws regarding specific matters (I.e., healthcare) Provincial Legislatures o Laws only apply within province o Authorized to make laws respecting matters assigned to it by the constitution Act, 1867 Municipal councils o Laws only apply within the municipality o Authorized to make laws only respecting matters assigned to it by the provincial government Aboriginal governments Law makers - Judges/tribunal members o Not elected – appointed o Make law in the course of resolving specific disputes They “make” the law through stare decisis Do not usually just make up the law Guided by precedent, principle, statute and constitution Independent and as impartial as possible How a bill becomes a law - See graphic* - Different for federal laws o See graphic* Canadian Court system - In Canada there is a court hierarchy o Supreme court of Canada rests at the top o The first level of courts are known as the trial courts Where facts are established, and a decision is made large function is to find the facts Different trial courts are charged with resolving different disputes i.e., tax courts, military courts, small claims court o These court decisions can then be appealed to the appellate courts o If the matter can then, in some important cases, be appealed to the supreme court The higher courts are reviewing courts They take the facts that are found by the trial courts and evaluate the decision - Hierarchical system in which the decisions of higher courts are binding on lower courts o Both in the matter at hand and for future cases o - This is another aspect of stare decisis. The principle that courts are required to follow the decisions of higher courts in the same jurisdiction Cases move from the bottom to top of the hierarchy
