Unit 1: Law & Politics - - - - - - Pseudo-law: ideas sprung together to make things sound complicated but has no legal bearing Self-conception and practical experience People don’t want to break laws because of social constructs and morality Exceptions with things like traffic laws for example (break them because it’s more socially acceptable and doesn’t seem important” Jerome Frank: “law serves as a father substitute- satisfies the craving which people possess for authority and certainty in an indeterminate world” Politics is bound by law… Law occurs in a political context; come from a political origin, must be debated and discussed within parliament If someone says something is unconstitutional, it is immediately looked at as whether it is legal or illegal, yes or no question Law is an important outer bound that determines the range that politics can reach (ex. If a bill infringes on the constitution or rights of other people, it is trumped automatically) … but law is shaped by politics (and occurs in a political context) What the law becomes is based on the parliamentary composition of the cabinet at any given moment in history (ex, Trudeau having majority government means the law will reflect the values of a liberal government) When a judge is appointed, they have the power to adapt and interpret the law (case law) Law vs politics: lawyers see judicial decision making as rational for what laws should be applied Politicians see law as a political opinion and attitudes towards the laws that have been passed (discretion, gender, representation all make a difference Conceptualizing Political Power Loughlin: political power is the ability to achieve the intended effects, decisionmaking power that is exercised through institutions and processes partly through law, product of relationship between state and its citizens Formalism and Realism Formalism: judge acts as “automaton into which legal documents and fees are stuffed at the top in order that it may spill forth the verdict at the bottom along with the reasons, read mechanically from codified paragraphs” (Weber) Realism: every legal concept is “infinitely pliable” and all law is “situational law”, thus every judicial decision is a political act (Schmitt) What is law? Hart’s defeatism: “nothing concise enough to be recognized as a definition could provide a satisfactory answer” (complex concept in socio-political reality that interacts w individual behaviour and customs/traditions) James: “set of rules which are generally obeyed and enforced” Dictionary: “rule established in a community by authority and custom” - - - - Waddams: “society’s attempt to resolve the most basic of human tensions, that between the needs of the person as an individual and her needs as a member of the community” Bohnnan: “one of the devices by means of which men can reconcile their actual activities and behaviours with the ideal principles they have come to accept, and in a way which is not too painful or revolting to their sensibilities Blackstone: law “is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform and universal” Legal Positivism Sovereign= person who makes the decisions (Queen Elizabeth II = Canada’s sovereign” We have consented to law at some level, somewhat of a fiction or general idea Less of a theory and more of a general understanding/approach to law Largely empirical, law needs to go through a pre-determined process before being considered law Something totally separate from morality 4 elements: (1) body of rules (2) enacted and applied by public officials (3) formulated by legitimate means (4) and backed by state force (Based on a positivist conception of law, concentration camps and “white areas” during the apartheid are considered law. Any law that is passed through the appropriate channels should be considered law, doesn’t matter how morally correct the law is) “Wicked law” (ex. The Indian act) Natural Law “higher law” above man’s law Aquinas: “god’s law is known through the exercise of REASON” = law has to be rational Impossibility removes some things positivists would consider law (religion) More associated with fairness and due process Two key procedural protections: Nemo iudex in causa sua: everyone is allowed a neutral and impartial decision maker, there can be no conflict of interest (no one should be the judge in his own case) Audi alteram partem: listen to the other side, need to give them an opportunity to be heard if the decision affects them (listen to the other side) Should law reflect justice? Positivists: not necessarily; law is independent of morality and consists of enactments of the sovereign (who may be morally just or not) Natural law: yes, since an unjust law is no law at all. Easier when there is a religious homogeneity, difficult in a pluralistic society Law as Coercion “law make sus do things we do not want to do” Hart: “law often empowers rather than coerces” -establishes technology for people to exercise their freedom” Loughlin: “law establishes the precondition for the conduct of politics” - - For making wills, in Grewal v Litt, if the law did not exist, the daughters would not be able to modify the laws and achieve a more equitable result for themselves Law establishes the preconditions for the conduct of politics Legal Fiction Physical (material) Legal (ideational) Human If thanos snaps his fingers and we all disappear, then would we still have a physical existence/ be here on the world? YES Corporation If thanos snaps his fingers and makes a corporation disappear, will they still exist in reality? NO, you cannot get rid of a corporation in the physical world because there is not physical being there in the first place If thanos snaps his fingers and we all disappear, would we still have a legal being or be involved in the law somehow? YES (seen in Grewal v Litt with the will, the wills are separate from our physical being but shows how we still have legal existence Do corporations exist in law? Do they have a legal existence? YES they are considered an entity in the law, and they have the same legal obligations as humans do
