Where do our Laws Come From?
“Law” can best be
described as a legal
iceburg – a small
portion is visible and
easily described, but
a large portion is
submerged and
needs exploration.
Law reflects the values that society holds in common, therefore, it
can be very complex and confusing.
Thinking and asking about the law is part of the study of
JURISPRUDENCE.
Jurisprudence defined: the science or philosophy of law; the study of
the structure of the legal system.
Why study jurisprudence?
The study of jurisprudence ensures that changes to our laws are
made with careful consideration and are informed by the insights of
legal writers, law-makers, and scholars of the past.

Where do our laws come from?
Primary vs. Secondary Sources

To gain a better
understanding of the
law, one must examine
both its practical and
theoretical roots, which
involves asking
questions about the
nature of law in our
society. For example:
What is the origin of our
laws that deal with
crime?
 Why does Canada make
certain acts illegal, while
other countries do not?
 How do the economic,
political, religious and
cultural characteristics of
a country affect its laws?

NEED TO KNOW:
 Jurisprudence
 Primary sources of law
Customs
 Conventions
 Religion
 Social and political
philosophies


Secondary sources

The constitution




Ultra vires
Intra vires
Judicial independence
Parliamentary supremacy
Statute law
 Case law





Precedent
Stare decisis
Uniformity
Impartiality
 Canadian
law is derived from many sources,
which can be placed into 2 different categories:
1.
2.
PRIMARY SOURCES and,
SECONDARY SOURCES
 Those
that have influenced our ideas and
values about law over time; the original
sources of law, including:



Customs and conventions,
Religion;
Social and political influences.
 CUSTOMS:
 Unwritten laws that may become
established by long practice.
 For example, “squatters’ rights”.
 CONVENTIONS:
 A way of doing something that has been
accepted for so long that it amounts to an
unwritten rule.
 For example, it is a convention in Canada
for the prime minister to request the
monarch to appoint only Canadian
citizens to serve as governor general.
 Religion
has helped
shape our law;
 The primary source
of our religious
heritage is the Old
Testament. For
example:
Moses and the Ten
Commandments - we
have laws against
murder and perjury.
 The phrase
“supremacy of God”
is included in the
beginning of the
Charter of Rights and
Freedoms.

 Many
of our laws reflect
social movements and
political philosophies.


For example, after the
Holocaust and the US civil
rights movement in the
1950s and 60s, Canada
passed the Human Rights
Act in 1977;
after the Great
Depression, legislation
was passed that
introduced social security
and employment
insurance.
 Current
laws that enshrine a society’s values
in written rules and regulations that have
been formulated by legislators and judges
(written down and legally binding),
including:



The Constitution;
Statute Law; and,
Case/Common Law


The most important
source of law; if any
law or statute conflicts
with it, the law or
statute must be revised
or repealed;
It sets the distribution
of power between the
different levels of
government.


If a government does
not have the authority
to make a law
because the law is
outside its
jurisdiction, it is said
to be ULTRA VIRES, or
outside its power;
If the courts
determine the
legislation is within
the authority of the
government, it is said
to be INTRA VIRES, or
within their power.
 In
Canada, our constitution
embodies the values and
principles that Canadian
law has derived from
primary sources, such as
religion, philosophy, and
tradition.

The BNA Act inherited many
principles of law from
Britain, including
JUDICIAL INDEPENDENCE, the
principle that judges function
independently of the
government, and
 PARLIAMENTARY SUPREMACY,
the principle that Parliament
has the supreme power of
making Canadian laws.

 Any
law passed by federal
or provincial governments
(i.e. The Criminal Code).
 Judges interpret the law
through the cases referred
to them. They do this by:
 Focusing
on the problem or
mischief the statute was
intended to correct;
 Looking at the statute's
wording itself;
 By using legal dictionaries
and scholarly articles.
Also known as common law;
Law is based on judicial
decisions;
 Case law involves a judge using
precedent, or decisions from
previous cases with similar
facts, when rendering his/her
decision on a case. This is the
RULE OF PRECEDENT, or the
concept of STARE DECISIS.


Assumes that cases should be
decided in the same way if
the MATERIAL FACTS (the
important facts of the case)
are the same.
 Judges rely on precedent
when there is UNIFORMITY
(like cases must be decided
alike) and IMPARTIALITY
(judges cannot permit their
feelings for those involved in
the case to enter into their
judgments).


Precedent can be
over-turned:
lower court decisions
can be over-turned
by Appeal Courts,
 the Supreme Court
can even over-turn
its previous
decisions, BUT
 judicial decisions
from the highest
court are binding on
all lower courts,
unless the
government decides
to make new laws.


This is important
because it
recognizes that
decisions made in
the past may not
be appropriate
today because
societal values
and laws are
always changing.
Whenever judges make a decision,
they must explain the reason for
their verdict – the RATIO DECIDENDI
– or reason for deciding.
 Lawyers compare and contrast the
ratio decidendi of cases and try to
find similarities or differences that
will support their argument.


Judges may also look to books and
articles about the law written by
professors, judges, and lawyers.
Constitutional law trumps all other
law!
LOWEST
COMMON
LAW
•Case law –
judicial
decisions, i.e.
R. v. Askov
SUBSTANTIVE
LAW
•Statutes – e.g.:
the Criminal
Code, Highway
Traffic Act,
Municipal Bylaws
HIGHEST
CONSTITUTIONAL
LAW
•Canada Act,
1982
•BNA Act, 1867
•Charter of Rights
and Freedoms
CANADIAN
LEGAL
HIERARCHY
Read pages 45 to 62 of the text and complete the following:
 Landmark Case, questions 1 and 2 (p. 48) on page 48-49.
 Confirm Your Understanding p. 53 q. 7, 8.
 Create your own notes/organizer to explain the influence
the following have had on the development of Canadian
Law:


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
Babylon
Greece
Romans
Aboriginals
British
French
Complete Confirm Your Understanding questions 4, 5 and 6
on page 62 of the text. For question 5 you should indicate
the advantages and disadvantages of each system.