Law: Its Purpose and History
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What is Law?
Laws are essentially a set of rules, but
there are 3 main characteristics that
make laws different from simple rules:
1. Laws are a set90of rules established and
enforced by government.
2. Laws are mandatory.
3. Laws involve consequences.
Functions of Law
Laws…
i)
ii)
iii)
iv)
v)
Establish rules of conduct
Provide a system of enforcement
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Protect rights and freedoms
Protect society
Resolve Disputes
Divisions of Law
In Canada, the law is divided into two basic
types: substantive and procedural.
Substantive Law: laws that outline a
person's rights and
responsibilities; further
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divided into Public and Private Law.
Procedural Law: legal processes that
protect and enforce our rights.
Public Law
There are 3 types of public law:
1. Criminal Law: outlines offences
against society and their punishments.
90 Law: outlines the
2. Constitutional
structure and powers of governments.
3. Administrative Law: outlines the
relationship between citizens and
government agencies.
Private Law
Also known as Civil Law; there are 5 types:
1. Tort Law: a person is held responsible for
damage caused to another; "tort" is Latin for
"a wrong".
2. Family Law: deals
with the various
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relationships of family life (e.g. marriage)
3. Contract Law: outlines requirements for
legally binding agreements.
4. Property Law: outlines relationship between
individuals and property.
5. Labour Law: outlines relationship between
employers and employees.
Early History of Law
• In ancient societies, local customs and
beliefs made up the law.
• Customs were not written down and
instead were passed on by word of
mouth.
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• As populations increased, laws became
more complex and codification became
necessary.
• Codification: a written collection of laws.
Evolution of Law
• Code of Hammurabi, c. 1750 BCE:
– One of the earliest records of written law.
– King Hammurabi of Babylon codified nearly 300 laws
in columns of stone.
• Mosaic Law, c. 1240 BCE:
– Based on the Ten Commandments.
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– Bible states that Moses received these laws from God
on two stone tablets.
• Justinian Code, c. 550 CE
– Byzantine Emperor Justinian codified 1000 years of
Roman laws.
– First legal code that emphasized equality under the
law.
Evolution of Law contd…
• Magna Carta, 1215:
– English noblemen forced King John to sign
this document that established the rule of
law - that all people, including the king, had
to obey the same laws; no one was above the
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law.
• Napoleonic Code, 1804:
– A new set of civil laws for French people.
– Became the model for most of Europe.
– Also referred to as the French Civil Code.
Feudalism
• In 1066, King William of England
introduced a feudal system.
• Under this system, the king owned all of
the land and divided most of it among his
lords or noblemen.
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• The Lords had their
own servants, or
vassals.
• If a vassal broke the law, their Lord could
punish them however they saw fit.
• Punishments were inconsistent and
unfair.
Common Law
• King William appointed judges to travel
throughout England and decide cases.
• Cases with similar facts were decided in
the same way.
• If a judge issued90a verdict in a new case,
that decision became the standard for
similar future cases - precedent.
• The system of law based on past legal
decisions is known as common law or
case law.
Rule of Law
• This legal principle was recognized in the
signing of the Magna Carta of 1215.
• The rule of law states that the law
applies equally to all persons.
• The Magna Carta
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of habeas corpus – a document that is
used to determine whether or not
someone is being legally detained.
Rights & Revolutions
• In the 18th century, two significant
revolutions took place that contributed to
the development of human rights.
1) American Revolution, 1775
• U.S. broke away90from British rule and
issued the Declaration of Independence
in 1776.
• In 1791, the U.S. Bill of Rights was added
to the American Constitution, which is still
their basis of civil rights and freedoms.
Rights & Revolutions contd…
2) French Revolution, 1789
• Influenced by the ideas of liberty and
equality in the American Revolution, the
French rose up against their king to end
feudalism.
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• A National Assembly was set up with
members who were elected by citizens.
• The concept of "nation-states" came out
of these revolutions.
Universal Declaration of Rights
• During World War II, numerous human
rights atrocities were committed.
• In 1945, shortly after the war ended, the
United Nations (UN) was formed.
• UN Commission90on Human Rights
produced a list of human rights and
freedoms for all people in the Universal
Declaration of Human Rights (UDHR).
UDHR - Excerpts
Some of the rights in the Universal
Declaration of Human Rights:
– All human beings are born free and equal in
dignity and rights.
– Everyone has the right to life, liberty, and
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security of the person.
– No one shall be subjected to arbitrary arrest,
detention, or exile.
– Everyone has the right to freedom of thought,
conscience, and religion.
– Everyone has the right to freedom of opinion
and expression.
Canadian Bill of Rights
• In 1960, Prime Minister John
Diefenbaker's government passed the
Canadian Bill of Rights.
• Similar to the UDHR, the Bill of Rights
codified many civil
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that had been established over many
years under common law in Canada.
• For the first time, Canadians had a list of
rights and freedoms to refer to.
Bill of Rights - Excerpts
Some of the rights in the Bill of Rights:
– Freedom of religion, speech, assembly and
association, and the press.
– The right not to be arbitrarily detained, imprisoned, or
exiled.
– The right not to receive cruel and unusual treatment or
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punishment.
– The right to be informed promptly of the reason for
arrest.
– The right to be presumed innocent until proven guilty.
– The right to a fair hearing.
– The right to equality before the law and its protection.
Constitutional Protection
•
Bill of Rights had two main limitations:
1. It only applied to federal matters.
2. It could be changed at any time by
Parliament since it was a statute.
•
•
In 1982, Prime Minister Pierre Trudeau
introduced the90Canadian Charter of
Rights and Freedoms into the
Constitution.
Because the Charter was a part of our
constitution, it applied to every level of
government and could only be changed
if an amending formula was followed.
Canada's Constitution - History
• Canada become an independent country from
Britain on July 1, 1867.
• Our first constitution was the British North
America (BNA) Act, 1867.
• Britain still controlled our foreign affairs and we
needed their permission to change the
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constitution.
• The Statute of Westminster, 1931, gave Canada
control of its own foreign affairs.
• In 1982, Trudeau and the premiers (except for
Quebec) "patriated" the constitution and
introduced the Charter. This gave Canada
complete control of our affairs as a nation.
Division of Powers
• The Constitution Act, 1867, explains the
specific powers that our levels of
government have as well as what they
are responsible for.
• Our levels of government
are federal,
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provincial, and municipal (which falls
under provincial in the constitution).
• Sections 91 and 92 of the Constitution
Act provide each level of government with
jurisdiction - power and authority to
make laws and pass regulations.
Section 91 – Federal Powers
• Peace, order, and good government
• Criminal law
• Unemployment insurance
• Banking, currency, and coinage
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• Federal penitentiaries
• Marriage and divorce
• Postal services
• Aboriginal peoples and lands
Section 92 – Provincial Powers
• Property and civil rights
• Marriage ceremonies
• Police forces and provincial courts
• Highways and roads
• Provincial jails 90
• Hospitals
Federal Laws
•
Federal bills, or laws, are passed by
Parliament, which consists of 3 parts:
1. House of Commons
2. Senate
3. Governor General (Queen's representative)
– Each Member90of Parliament (MP) is
elected to represent 1 of 308 ridings or
electoral districts in Canada.
– The political party that wins the most
seats forms the government and
passes laws.
Federal Branches
•
There are 3 federal branches of government
that pass laws, interpret them, and ensure
they are carried out:
1. Executive
•
•
•
•
Governor General
Prime Minister90
Cabinet
Civil Service
2. Legislative
•
•
House of Commons
Senate
3. Judiciary
•
Judges
How a Bill Becomes Law
• Overview of how a bill is passed into law:
– First Reading
• Bill is introduced
– Second Reading
• Bill is debated in House of Commons
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– Committee Stage
• Bill is studied, revised, or changed
– Third Reading
• Further debate on the amended bill
• Vote in the House of Commons
– Senate (similar process: 3 readings, vote)
– Royal Assent (governor general signs bill into law)
Provincial & Municipal Laws
Provincial
• The process to pass provincial laws is similar to
federal laws.
– Differences: no Senate; Queen's
representative at the provincial level is the
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lieutenant-governor
who signs bills into law.
Municipal
• Municipal laws are called bylaws.
• Elected councils (mayor and city councillors)
debate and vote on bylaws. If the vote passes,
the bylaw is enacted.