chapter 1 10e

Part 1 – Introduction to the Law

Chapter 1 – The Law and the Legal System

Prepared by Douglas Peterson, University of Alberta

© 2012 McGraw-Hill Ryerson Limited 1-1

Learning the Law The Legal Environment of Business The Nature of Law Rights versus Privileges The Role of Law Development of Law Sources of Law Constitution and the Charter of Rights Classification of Laws

Chapter 1 – The Law and the Legal System


Business Law is important to Business Persons A knowledge of legal issues is essential to the

making of proper risk management decisions Learning the history of law helps us to better

understand the law in its present day context We need to understand the types of basic legal

issues that affect business planning/operations We also need to be aware of developments in

law that may impact our specific type of business

Learning the Law


Business lawDivided into a number of general areas○ Tort law – injuries to another's person, property or

reputation○ Contract law – day-to-day operations of a business○ Business Organizations

Partnership, sole proprietorship, corporation○ Land Law○ Intellectual Property○ Environmental Law

Legal Environment of Business


Reflects the society we live inHistorical influencesDefinitions

A set of rules that enable people to live together and respect each others rights

Rules of civil conduct

Nature of Law


Distinguish between a right and a privilege Right – are things we can do with impunity

Others have a duty not to interfere with our rights i.e. Freedom of Speech

Privilege – We earn a privilege under certain circumstances and if improperly exercised it can be taken away by the State i.e. Driver’s Licence

Rights can become privilegesDue to social pressure or the state’s desire for funds

Rights versus Privileges


Law – body of rules of conduct that are obligatory

Sanctions imposed if a rule is violated Social Control – using laws to shape

society

Role of Law


Three Functions of the Law1. Settling Disputes2. Establishment of Rules – to bring

order and minimize conflict3. Protection – of one’s self,

possessions, ideas.

Role of Law


Within the Family and within the Tribeword of mouth from generation to generationEarly form of precedent

Within the City-StateFormation of governments to deal with disputesBalance between common good and individual

freedomRoman Empire, Western Europe, Middle East

Development of the Law


Customary LawReligious lawsCommunity based

Pre-Norman EnglandRoman law followed by Germanic

influence to the Norman conquest in 1066

Common Law


Norman EnglandPower consolidated with the King and the

King’s justicesCentral judiciary established under King

Henry II○Beginning of the precedent system of

common law○Written records began to be kept

Common Law – Rise of the Courts


Common Law Law as found in the recorded judgments of

the courts know as “case law” “Statutes” are laws based by a properly

constituted legislative body/government Judicial interpretation and application of

“statute law” creates case law

Sources of Law


Stare Decisis – Latin Phrase- “to let a decision stand” applies if decision:1. From the judges own court – Persuasive 2. Form a court of equal rank – Persuasive 3. From a court of higher rank - Binding

This is a basic Judicial Principle that Judges in lower courts must follow higher court direction when dealing with similar facts and issues

Sources of Law


Creates certainty and predictability Predictable yet flexible

More flexible than a civil codeCan adapt to social changes such as

same sex marriageRequires familiarity with ongoing

evolution of statute and case law

Common Law


Canon Law – church lawOriginal jurisdiction over religion, family, marriage,

morals, estatesInfluence today (Sunday shopping laws,

Ecclesiastical Courts) Merchant Law

Customs or rules established by merchants to resolve disputes

Example today would be the sales of goods legislation


Sources of Law

EquityRules originally based on decisions of the King

rather than on the lawFairness, equality, justiceOvercomes the harshness and rigidity of the

common lawTakes precedence over common law when

equity and common law conflictOver time decisions of the King became

principles of equity and eventually equity and common law merged


Sources of Law

Statute Latin word “statutum” meaning “it is

decided”Laws made by governmentsResult of legislative processDebated, voted upon and passed through

a strict process established to protect democratic principles


Statute Law

Process –Slightly different Federally and Provincially

1. Bill – proposed law presented to a legislative body2. Motion – decision to read a bill the first time 3. Royal Assent – granted by the Governor General or

Lieutenant Governor after required readings- Required in order to become law

4. Proclaimed – when a law becomes effective Revised Statutes – updated or amended to

reflect changes in society○ Updates of current laws are now done online


Statute

Influence of the French Civil Code systemA body of written law that sets out private

rights of the citizens of the stateHistorical from Prussia and codified by

Napoleon in the 1800’sRecent code is from 1994.

Quebec’s Civil Code


Codification of the common law into statutesBills of Exchange Act; Partnership Act; Sale

of Goods ActTook place during late 1800’sAdvantage over common law is certaintyStill requires judges interpretation

Codification of Common Law


A 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

Administrative Law


Constitution - Basis upon which a state is organized, and the powers of

government definedThe supreme law - Rules for making Laws2 Major Parts○ Canadian Charter of Rights and Freedoms○ Amending Formula

1867 B.N.A. Act and 1982 Canada ActLegislative bodies that do not follow constitutional rules

risk having their laws declared unenforceable or ultra vires

Constitutional Foundations


Division of PowersSection 91: Federal powersSection 92: Provincial powersGovernments are 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

Constitution


Sets out basic rights and freedoms of all Canadians that governments are to respect

Entrenched in the Constitution – difficult to change

Section 1 (Reasonable Restrictions)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.

Charter of Rights


Notwithstanding Clause (s.33)Permits the government to pass legislation

that conflicts with or overrides charter rights by way of a “notwithstanding clause”

Some sections of the Charter cannot be overridden

Sunset clause – s.33 laws passed under this section last for a five year period, unless renewed

Charter of Rights


S.2Freedom of conscience and religionFreedom of thought and expressionFreedom of the pressFreedom of peaceful assemblyFreedom of association

Fundamental Freedoms


Mobility Permits free movement within Canada

Personal LibertyEnjoy life without interference of the StateLife, liberty and security of the personRight to be free from unreasonable search

and seizureFree from arbitrary detention or

imprisonment


Other Rights

Right to Due ProcessInformed of rights on arrestRight to a lawyerOnly arrested for committing an offenceInnocent until proven guiltyRight to fair trials, reasonable bail


Other Rights

Equality RightsEvery individual is equal before the lawNote language of charter language: person,

citizen, individualNo discrimination based on race, creed, colour,

religion, sex, age, national or ethnic origin or any mental or physical disability

Affirmative action is allowed for disadvantaged groups


Other Rights

Language Rights2 official languages of English and FrenchGovernment (federal) to provide services in

both official languagesRights of education to be made available in

preferred official language


Other Rights

Apply to the courts to challenge legislation that offends Charter rights

Charter only applies to governments not to private groups or individuals

Private matters are dealt with through Provincial human rights legislation

“Read Into” the recent trend of courts to read into the Charter words or provisions that the legislative bodies did not

Reference Cases – example is the Same Sex Marriage case

Enforcement of Rights


Substantive Law All laws that set out the rights and duties of

individuals Procedural Law

Procedures taken to enforce a substantive law Substantive Right

An individual right enforceable at law Public Law

Relates to relationship between governments and persons

Private Law Relates to relationship between individuals

Classification of Laws


Law is the means by which state maintains social control

Courts used as vehicle of enforcement Common law and statute law exist today

Rule of Precedent “stare decisis” allows for judicial interpretation of laws and a hierarchy of courts

Charter RightsS.1 rights are not absoluteS.33 can be overridden with notwithstanding clause

Substantive rights and law are enforced or applied through procedural law processes


SUMMARY

chapter 1 10e

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