HISTORICAL INFLUENCES
GREEK LAW (400 BCE)
Highlights
Jury Duty
 First democratic society –
 Enormous juries (101,
citizen involvement (kinda)
WHY KINDA??
 Major contribution: JURY
DUTY!!
501, 6000)
 Jury also voted on sentence
 Best example is trial of
Socrates
DEATH OF SOCRATES
ROMAN LAW (450 BCE)
Highlights
Twelve Tables
 Basis of law for Western
 Promoted public
Europe
 2 Principles: 1) law must
be recorded & 2) justice
could not be left to judges
 Twelve Tables earliest
example of codified laws
prosecution
 Victim compensation
 Protection of lower class
(Plebs) from higher class
(Patricians)
LAWYERS
• As Rome grew, their society obviously became more complex
leading to the law being more complex
• It became necessary to ask experts to advise those who did not
understand the system
• These legal advisors were the forerunners of present-day lawyers
JUSTINIAN’S CODE
• Roman law became even more complex and Emperor Justinian I
(527-565 CE) decided to reform the law
• This code inspired the modern concept of justice (From Justinian)
• Law emphasized equity (The ideal of being fair, just, and impartial
and that people are equal under the law)
EARLY BRITISH LAW
• When the Romans left Britain (c. 410 CE) the Britons turned to
God to determine guilt or innocence.
• CAN YOU THINK OF ANY EXAMPLES???
TRIAL BY ORDEAL
• Judgements were made by making the accused go through a
particular “trial”
• If you survived a nasty punishment it showed God was on your side
• Examples: Trial by hot iron, Trial by hot water, Trial by cold water
(also called swimming a witch)
• Hot iron trial would have the accused bandage his hand after
holding a piece of hot iron and after a few days the bandage was
removed….if not infection he was innocent.
WHAT’S THE OBVIOUS PROBLEM???
TRIAL BY OATH HELPING
• For less serious offenses, required people who knew the accused to
swear on a Bible that he/she was innocent
PROBLEMS??
TRIAL BY COMBAT
• Introduced by Normans in 1066
• 2 parties involved engage in a duel – God will side with the
innocent PROBLEMS???
• Women & Children could hire individuals to fight for them
• Representative of today’s adversarial system
• 2 sides square off with lawyers….some stronger than others
• Today it’s now based on mental strength, not physical
• Europe uses the inquisitorial system
• Can be arrested and imprisoned before state produces evidence
FEUDAL SYSTEM
• No one is above the law….not always
• When William the Conqueror defeated England, his set a standard
that the King’s word was law
Divine Right to rule- Only answerable to God
•William also established the Feudal system where noblemen owned
and governed their lands
• No consistency in cases and punishments
• Henry II (William’s grandson) changed the system to what is now
the most common likeness to British and Canadian Law
COMMON LAW
• Henry II created “circuit judges” to create consistency in the law.
These judges traveled the country to try cases…there was no
codified law so they used their common sense
• They noticed similarities in cases so they began to try similar cases
in the same way. Stare Decisis: To stand by earlier decisions already
made. This is where the Rule of Precedent came from
• A precedent is something that has been done that can later serve as
an example or rule for how other things should be done
• The rule or precedent is PIVOTAL as it provides consistency to law
COMMON LAW CON’T
• It became well known what the outcomes would be before trial.
The law became “common” to all
• They also recorded their decisions, which is the basis of “case” law
today
MAGNA CARTA 1215 CE
MAGNA CARTA (Great Charter)
• Henry II system needed codifying, especially to take away DIVINE
RIGHT. In 1215 CE, angry barons forced King John (Henry’s
grandson) to sign the Magna Carta
KEY POINTS
• RULE OF LAW: equality before the law…king included
•HABEAS CORPUS: “You must have the body.” Arrestors must
bring the accused before a judge to determine the validity of their
arrest within a reasonable time.
• This historic right is so fundamental it is entrenched in our Charter
NAPOLEONIC CODE (1804 CE)
Highlights
 Created after French
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


Revolution
Very similar to Justinian &
Roman Law
Also known as ‘Civil Code’
Non-technical style made law
easy to understand (helped
unify France)
Foundation of Civil Code of
Quebec…precedent not as
important, more judges
discretion & scholarship
CUSTOMS & CONVENTIONS
CUSTOMS – Long-established way of doing something
that, over time, has acquired the force of law (SOCIETAL)
 Not formally a law, but a judge could recognize it as having the
force of a law through established use
CONVENTIONS - A way of doing something that has been
accepted for so long that it amounts to an unwritten rule
(POLITICAL)
 CASE: Patriation of the Canadian Constitution Pg 44 & 45
SOCIAL & POLITICAL PHILOSOPHY
SOCIAL
 Public reaction to events such as the Holocaust & US civil rights
in the 60s leads to changes in the law
POLITICAL
 Extreme groups – CCF during 30’s, Bloc for separatism
 Everyday politics – Conservative vs. Liberal ways of thinking
Secondary Sources of Law
SECONDARY SOURCES
SECONDARY SOURCES OF LAW – Current laws that
enshrine a society’s values in written rules & regulations
that have been made by legislators & judges
(See Next Slide)
CONSTITUTIONAL LAW
(Ex: Canadian Charter of
Rights and Freedoms)
STATUTES OR ACTS
(Ex: Criminal Code)
CASE OR COMMON LAW
(Ex: R. v. Big M. Drug Mart)
Secondary Sources
 Laws and reported cases that have been written down by
various types of law makers
 Enshrine society’s values, beliefs, and principles in written
laws and regulations
 Lawmakers in Canada consist of two types of people:
 Elected officials: MPs, MPPs, MLAs, MNAs
 Judges who render legal; decisions
The Constitution
 Statute must be revised if in conflict with what the
constitution says
 The constitution includes the Charter of Rights and
Freedoms
 Statute law takes precedence over judicial decisions except
when the statute is unconstitutional
The Canada Act 1982
 Outlines the distribution of government powers and sets out certain
legal principles
 It is actually a collection of documents, the first being the BNA Act 1867
“a Constitution similar in Principle to that of the United Kingdom”
Judicial Independence: Judges act independently
Parliamentary Supremacy: representative body of the Canadian people has
the supreme power to make laws in Canada
Wait…read those two again…
Statute Law
 Any law passed by the federal or provincial government
 Royal Assent after three readings
 Legislative authority in various areas was divided between the federal and provincial governments
by the 1867 BNA Act
 Ex: Sec. 91 Federal jurisdiction over defence and criminal law
 Sec. 92 Provincial jurisdiction over hospitals, property rights and education
 Therefore two more principles must be abided by:
Ultra Vires- outside of a governments’ powers
Intra Vires- inside of a governments’ powers
The federal government enacts a law that stipulates within every
provincial education system there must be a course in senior grades
to learn basic economics
Interpretation
 Judges often have to interpret laws through cases that are referred
to them
 They are not passing laws simply trying to interpret the meaning
behind a law
 Therefore any of the new assisted suicide laws will likely have to
be interpreted through various cases that will inevitably occur.
Case Law
 Judges render a written decision or explanation of their ruling
 R. v. Lavallee- no law was created but a case created a law through
the decision of the SCC- battered woman syndrome must be
included as a form of defence
 To prepare a court case lawyers and judges will look back to all
recoded cases that are relevant to the case in front of them
 Stare Decisis- precedent must be considered
Case Law
 Organized through citations
 Starson v. Swayze (2003) 225 DLR (4th) 385 (SCC)
 R. v. Tessling (2003-01-27) ONCA C36111