Historical Roots of Canadian Law

Early Church writers’ views on the Church’s relationship to government and law? The Church’s task is to create a moral framework for law and government. The Church is to impose a sense of morality on the government and the state. God is above the state. Christians are required to disobey unjust laws (those that go against the Way)

Modern Western democracies’ views on the Church’s relationship to government and law? The dominant Western view shows an attempt to separate the affairs of Church and state separation of Church and state What does this mean? Common view = religion and religious beliefs are to be kept away from / out of politics, government decisions and law. Your view?

Christianity’s contribution to shaping Canadian law? Mosaic law, Jewish culture, and – especially - the Christian church’s traditions and ideas have played an important role in shaping: the heritage on which Canadian law has been based; (history and traditions that informed the fathers of confederation) the values on which Canadian law has been based; (principles that inform the laws) the beliefs on which Canadian law has been based. (ideas that inform the values)

Greek contribution? Idea of democracy – rule for the people by the people Concept of informed, engaged, responsible, participating citizens The primary contribution of the ancient Greeks to modern Canadian law is the jury process. Basic principle of Canadian law = an accused person has the right to be tried by an impartial jury of his/her peers. In criminal law, a jury is a group of 12 people who decide whether the accused is guilty or not guilty. In civil law, a jury is a group of six people (in most provinces) who decide for the plaintiff or the defendant.

Roman contribution? Ancient Roman contributions to modern Canadian law include: The role of the lawyer as an expert in the law to serve as a legal adviser. This has been entrenched in the Charter of Rights and Freedoms as a legal right of Canadians: “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.” Roman law also provided the basis for the French Civil Code.

Napoleonic Code / French Civil Code’s contribution? Law code written in a non-technical style making it easier for people to understand the law. The Code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs should go to the most qualified. Less about the legacy of laws created during Napoleonic era and more about the legacy of Enlightenment era ideas Napoleonic Code has been used as a model for the legal systems of more than 20 nations. Present-day Quebec civil law is largely based on the Napoleonic Code.

British legal system’s contribution? Magna Carta and legal reforms in Britain introduced important legal principles and practices like: Rule of law = “a principle of justice stating that law is necessary to regulate society, that law applies equally to everyone, and that people are not governed by arbitrary power” Rule of precedent = “applying a previous decision to a case that has similar circumstances” Case law = “a method of deciding cases based on recorded decisions of similar cases” Common law = “law that developed in English courts; relies on case law, and is common to all people”

Aboriginal / First Nations contribution? Emphasis on community involvement in carrying out justice (healing circles) Focus on rehabilitation as an important aspect of justice Rehabilitation = punishment combined with treatment and training to help offenders function in society

Review Assignment Answer the following text review questions (pp.38-40) your notes under the title heading, Law and Society. Please make sure your work is done neatly. Quick Quiz #1 (p.38) Checking Your Understanding #3-6 (complete sentences) (p.38) Developing Your Thinking Skills #7 (don’t forget to explain your answers), #9 (p.39) Ethics Exercise #1-4 (p.40)