HISTORICAL INFLUENCES

GREEK LAW (400 BCE) Highlights Jury Duty First democratic society – citizen involvement (kinda) WHY KINDA?? Major contribution: JURY DUTY!! Enormous juries (101, 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 Europe 2 Principles: 1) law must be recorded & 2) justice could not be left to judges Twelve Tables earliest example of codified laws Promoted public 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 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 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)

(Ex: Canadian Charter of Rights and Freedoms) 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

“a Constitution similar in Principle to that of the United Kingdom” 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