BU 4003 Business Law the Principle of Stare Decisis Case Questions

CHAPTER 1
The Law and
the Legal
System
Prepared by:
Renee Majeau, NAIT
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Chapter Objectives
• Describe the sources, role, and development of
Canadian law.
• Distinguish between statute and Common Law, and
describe the significance of stare decisis.
• Recognize matters of federal versus provincial
jurisdiction.
• Describe the fundamental rights and freedoms set
out in the Charter of Rights and Freedoms
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Learning the Law
•
Business Law is important:
Knowledge keeps businesses out of trouble
Advance business interests
Need to be aware of developments in law that
impact a specific business
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The Legal Environment
for Business
•
Business law is divided into general areas:
Tort law injury to others
Contract law day-to-day operations of a business
Business organizations formation and operation
Land law purchasing or leasing of premises
Intellectual and industrial property
Environmental law
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Nature of Law
Reflects the society we live in
• Determines rights and freedoms of the individual
• Historical influences
• Definitions of “Law”:
•
Society’s rules and processes that try to create fair
and predictable outcomes in our relationships
Rules of civil conduct, commanding what is right
and prohibiting what is wrong
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Rights versus Privileges
Right things we can do with impunity, with
force of the state behind us
• Privilege actions that may be taken under
specific circumstances
•
May be withdrawn or limited by the state
•
Rights often become privileges due to social
pressure, public policy, to increase public safety
and flow of funds
E.g. Driver’s license
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Role of Law
•
The Law body of rules of conduct laid down by
a governing body
Controls actions of individuals in its jurisdiction
Sanctions imposed if a rule is violated
Develops to meet needs of free society and
changes with their changing needs
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Societal Control
Legislators sometimes establish laws that are not
in response to demands of citizens
• Represents social engineering:
•
Restricts individual rights and freedoms
Transfers rights and power to governing body
Law may reflect desires of politicians at a given
point in time
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Settlement, Rules, and
Protection
•
Law can be subdivided into three functions:
1.
2.
3.
Settling disputes
Establishing rules of conduct
Providing protection for individuals
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The Early Development
of Law: Within the Family
•
Established to maintain orderly relationships in
families / tribes
Word of mouth from generation to generation
Disruptive behavior controlled by family elders
heard disputes and recommended settlements
Decision-makers acquired power to impose
decisions on disputants
•
Law, as an instrument of social control took
form
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Within the City-State
• Establishment of city and city-state led to:
Formal bodies with authority to decide how
individuals in community should conduct
themselves
Formation of governments to deal with disputes
Balance between common good and individual
freedom
E.g. Roman Empire, Western Europe, Middle East
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Customary Law
•
Rise of city-state created the need for a system
of law enforcement
Disputes increased as population’s density
increased
Communities established tribunals to hear
disputes and force restitution
Laws gradually established in form of consistent
decisions
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Pre-Norman England
•
Early courts and law imposed by invaders
Roman law (lex romana) was uniform in nature
and application
Followed by Germanic influence decentralized
government under a king
Law developed according to local customs
Laws enforced by weak central government
witenagemot along with the king
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Norman England and the
Common Law
•
Norman Conquest in 1066 led to:
Centralized system of administration
Establishment of central judicial system
1234 – King’s justices began keeping records
1272 – Fledgling legal profession
Records improved, eventually becoming useful
statements of the Common Law
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The Common Law
Law as found in the recorded judgments of the
courts and known as “case law”
• Stare decisis “to stand by a previous decision”
•
Principle requiring a judge to apply judgement of
a previous case when a later case presents similar
facts, providing the decision was:
1. From the judge’s own court
2. Form a court of equal rank
3. From a court of higher
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Common Law Cont’d…
Creates certainty and predictability
• Predictable yet flexible
•
More flexible than a civil code
Can adapt to social changes such as same sex
marriage
Requires familiarity with ongoing evolution of
statute and case law
Willing to borrow from elsewhere or create as
necessary to fit a need
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Canon Law
•
Law developed by church courts to deal with
matters that fell within their jurisdiction
Original jurisdiction over religion, family, marriage,
morals, estates
Initially administered by ecclesiastic courts
Reformation (1534-38), jurisdiction passed to royal
courts
Much of “church law” became part of the
Common Law
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Law Merchant
•
Customs or rules established by merchants to
resolve disputes that arose between them
Later applied by Common Law judges in cases that
came before their courts
Initially within exclusive domain of the merchant
guilds
Large body of law relating to commerce gradually
became part of the Common Law
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Equity
•
Rules originally based on decisions of the King
rather than on the law, and intended to be fair
Fairness, equality, justice
Overcomes the harshness and rigidity of the
common law
Takes precedence over common law when equity
and common law conflict
Over time decisions of the King became principles
of equity and eventually equity and common law
merged
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Statute Law
•
Laws established by governing body of particular
jurisdictions
Statutum “it is decided”
Governments have power to make laws
Result of legislative process:
o Wishes of people brought forward to legislature
o Debated, voted upon and passed through a strict
process established to protect democratic principles
Advantage of statute law is relative ease by which
the law may be changed
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Creation of Statute Law
1.
2.
Bill proposed law presented to a legislative
body (e.g. House of Commons)
Motion decision to read a bill the first time
If bill passes second and third reading, sent to
Senate for approval
3.
Royal assent approval of the sovereign,
needed in order for the bill to become law
E.g. Governor General or Lieutenant Governor
4.
Proclaimed when a law becomes effective
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Creation of Statue Law
Cont’d…
•
Revised statutes updated or amended to
reflect changes in society
Historically only printed by governments once in
a decade so became quickly outdated
o
E.g. Revised Statutes of Canada, 1985
Recent digitization updates of current laws
now done online
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Aboriginal and Indigenous
Law
•
Two of fastest growing legal fields in Canada:
Aboriginal law body of Canadian law, made by
courts and legislatures, that deals with Indigenous
people of Canada and their relationship with the
Crown
Indigenous law collection of legal traditions,
customs and practices of Indigenous peoples and
groups
o
Indigenous peoples include the First Nations, Inuit
and Métis
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Quebec’s Civil Code
•
Unlike rest of Canada, Quebec has codified much
of the Common Law
Civil code body of written law that sets out
private rights of the citizens of the state
First codification of law in Rome = Corpus Juris
Civilis (534 A.D.)
New code adopted by Prussia in 1794 and French
law further codified by Napoleon in the 1800’s
Most recent Civil Code of Quebec came into force
in 1994
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Codification of Common
Law
•
Codification of the Common Law into statutes
Took place during late 1800’s
Advantage over common law is certainty
Still requires judges interpretation
•
In US, codification produced United States
Uniform Commercial Code
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Administrative Law
Administrative law body of rules governing the
application of statutes to activities regulated by
administrative tribunals or boards
• Regulations procedural rules made under a
statute
• Administrative tribunals agencies created by
legislation to regulate activities or do specific
things
•
Power is delegated from Legislative body to
Tribunal or Board
Decisions may be subject to judicial review
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Constitutional Foundations
of Canadian Law
•
Constitution basis upon which a state is
organized and the powers of its government
defined
Sets out fundamental rights and freedoms of
citizens
Defines law-making powers/authority of the
various legislative bodies of the state
E.g. Bill of Rights in the U.S.
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The Canadian
Constitution
•
Constitution Act (1982) set of formal written
documents
Sets out fundamental rights and freedoms of
citizens
Defines law-making powers of the various
legislative bodies of the state
Two major parts:
○ Canadian Charter of Rights and Freedoms
○ Amending formula + additional changes in powers of
government + British North America Act (1867)
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The Canadian
Constitution Cont’d…
•
Division of powers:
Section 91: Federal powers
Section 92: Provincial powers
Governments limited to making laws within their
area of power
• Residual power given to the federal government
•
All matters not expressly given to the provinces
belongs to the federal government
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The Canadian Charter of
Rights and Freedoms
Sets out basic rights and freedoms of all
Canadians
• Entrenched in the constitution thus difficult to
change
• Rights are not absolute – Section 1:
•
The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it,
subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and
democratic society.
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Fundamental Freedoms
•
Everyone has the following fundamental
freedoms:
a) Freedom of conscience and religion;
b) Freedom of thought, belief, opinion and
expression, including freedom of the press
and other media of communication;
c) Freedom of peaceful assembly; and
d) Freedom of association.
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Mobility and Personal
Liberty
Mobility rights Canadian citizens are free to
remain in, enter or leave Canada, and to move
freely within country
• Personal liberty enjoy life without interference
by the state
•
Right to life, liberty and security of the person
Right to be free from unreasonable search and
seizure
Free from arbitrary detention or imprisonment
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Right to Due Process
•
Right to be informed, on arrest or detention, of
the reasons for the arrest
Right to retain and instruct a lawyer promptly
after arrest or detention
Arrest must be for committing an alleged offence
Right to trial within reasonable time
Accused is presumed innocent until proven guilty
Right to fair and impartial public hearing
Reasonable bail
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Equality Rights
•
Every individual is equal before the law
Right to equal protection and benefit without
discrimination on the basis of:
o Race, creed, colour, religion, sex, age, national or
ethnic origin or any mental or physical disability
Affirmative action is allowed for disadvantaged
groups
Two official languages in Canada: English and
French
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Aboriginal Rights
•
Specific provisions for Charter rights that
intersect with pre-existing Aboriginal rights
Section 25: No rights found in Charter may be used
to diminish or alter any Aboriginal, treaty, or other
rights of freedoms of Indigenous peoples
o Including rights pertaining to current or future land
claims
Section 35: Defines “Aboriginal peoples” as being
the Indian, Inuit and Métis
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Enforcement of Rights
•
Charter states that persons who believe their
rights or freedoms have been violated, can:
• Apply to a court law for appropriate remedy
Charter only applies to governments, and not to
individuals
• Private matters are dealt with through Provincial
human rights legislation
•
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Protection of Other Special and
General Rights and Freedoms
•
Charter recognizes other rights and freedoms:
Indigenous peoples
•
Charter entrenches the fundamental or basic
rights and freedoms
Rights not specifically entrenched may be infringed
upon by governments (e.g. property rights)
•
Charter applies to territories as well as provinces
and legislative powers of various bodies not
changed by Charter
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Protection of Other Special and
General Rights and Freedoms
•
•
Statute law and the Common Law classified into
two broad categories:
1.
Substantive law all laws that set out the rights
and duties of individuals
2.
Procedural law law or procedures that a
plaintiff must follow to enforce a substantive law
right
Substantive right an individual right
enforceable at law
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Protection of Other Special and
General Rights and Freedoms Cont’d…
•
Substantive law is further subdivided:
1.
Public law law relating to the relationship
between the individual and the government
2.
Private law law relating to relationships
between individuals
o
Also referred to as civil law
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Summary
Law is means by which state maintains social control
• System of courts is the vehicle of enforcement
• First laws were family behavioural rules, and later
religious and non-religious taboos
• First laws enforced by family elders and community
• Modern states have a constitution which sets out
powers of government and rights of citizens
Constitution Act and Charter of Rights and Freedoms
• Law has evolved to become complex system of
Common Law, equity, statute law, and administrative
law
•
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