SOURCES OF LAW What are the sources of Canadian law???

PRIMARY SOURCES PRIMARY SOURCES OF LAW – Parts of a legal system that have the longest historical development Religion/Morality/Values Historical Customs & Conventions Social & Political Philosophy

INFLUENCES OF RELIGION Canada’s laws strongly reflect Judeo-Christian Heritage (Mosaic Law) 16th century Christian missionaries and colonists brought their religion to Canada…formed basis for our laws. What about religion in law today?? Cuts both ways: Charter Preamble Lord’s Day Act

MOSAIC LAW (1200 BCE) Highlights Changes from Previous System Hebrew/Israelite Law (Old Testament & Torah) Formed the basis of Judeo- Christian moral teachings in Western Legal System Based on God’s 10 Commandments given to Moses More concern with punishing a deliberate action than an accident Punish the guilty person regardless of status Emphasis on respect for parents

EXAMPLES FROM MOSAIC LAW Thou shall not kill Thou shall not steal If a man steals an ox or a sheep and kills it or sells it, he shall restore five oxen for an ox and four sheep for a sheep If a thief is found breaking in and be smitten that he die, there shall be no blood shed for him

INFLUENCE OF MORALITY Moral philosophy strongly influences our laws – deals w/ what is considered right and wrong Morality and religion not the same…atheists can have strong moral sense Must use reason to understand acceptable vs. unacceptable behaviour Ex: Murder wrong not only because religion forbids it, but because reason tells us so What are some morals you feel are currently changing??

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, 1001) 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 give advice 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 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 STATUTES OR ACTS CASE OR COMMON LAW (Ex: Canadian Charter of Rights and Freedoms) STATUTES OR ACTS (Ex: Criminal Code) CASE OR COMMON LAW (Ex: R. v. Robertson and Rosetanni)