1. Part 1 – Introduction to the Law
Chapter 1 – The Law and the Legal System
Prepared by Douglas Peterson, University of Alberta

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Chapter 1 - Overview
The Nature of Law
Rights and Privileges
The Role of Law
Development of Law
Sources of Law
Constitution and the Charter of Rights
Classification of Laws
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3. Legal Environment of Business
Business law
Divided 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
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Nature of Law
Reflects the society we live in
Historical influences
Definitions
A set of rules enable people to live together and respect each others rights
Rules of civil conduct
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5. Rights versus Privileges
Distinguish between a right and a privilege
Right – the “right” to do something
Rights are associated with duties
Privilege – under certain circumstances and can be taken away by the State
Rights can become privileges
Due to social pressure or the state’s desire for funds
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Role of Law
Law – body of rules of conduct that are obligatory
Sanctions imposed if a rule is violated
Social Control – using laws to shape society
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Role of Law
3 Functions of the Law
Settlement – settle disputes
Rules – to bring order and minimize conflict
Protection – of one’s self, possessions, ideas.
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Development of the Law
Within the Family
word of mouth from generation to generation
Early form of precedent
Within the City-State
Formation of governments to deal with disputes
Roman Empire, Western Europe, Middle East
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Common Law
Customary Law
Religious laws
Community based
Pre-Norman England
Roman law followed by Germanic influence to the Norman conquest in 1066
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Common Law
Norman England
Power consolidated with the King and the King’s justices
Central judiciary established under King Henry II
Beginning of the precedent system of common law
Written records began to be kept
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Sources of Law
Common Law
Law as found in the recorded judgments of the courts
“case law”
Stare Decisis – “to let a decision stand” applies if:
From the judges own court
Form a court of equal rank
From a court of higher rank
Bound to follow the decision
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Common Law
Creates certainty and predictability
Predictable yet flexible
More flexible than a civil code
Can adapt to social changes such as same sex marriage
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Sources of Law
Canon Law – church law
Original jurisdiction over religion, family, marriage, morals, estates
Influence today (Sunday shopping laws)
Merchant Law
Customs or rules established by merchants to resolve disputes
Example today would be the sales of goods legislation
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Sources of Law
Equity
Rules originally based on decisions of the King rather than on the law
Fairness, equality, justice
Overcomes the harshness and rigidity of the common law
Takes precedence over common law when equity and common law conflict
Overtime decisions of the King became principles of equity
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Statute Law
Statute
Latin word “statutum” meaning “it is decided”
Laws made by governments
Result of legislative process
Voted upon and passed through a process
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Statute
Process
Bill – proposed law presented to a legislative body
Motion – decision to read a bill the first time
Royal Assent – granted by the Governor General or Lieutenant Governor
1. Required in order to become law
Proclaimed – when a law becomes effective
Revised Statutes – updated or amended to reflect changes in society
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Quebec’s Civil Code
Influence of the French Civil Code system
A body of written law that sets out private rights of the citizens of the state
Historical from Prussia and codified by Napoleon in the 1800’s
Recent code is from 1994.
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18. Codification of Common Law
Codification of the common law into statutes
Bills of Exchange Act; Partnership Act; Sale of Goods Act
Took place during late 1800’s
Advantage over common law is certainty
Still requires judges interpretation
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Administrative 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
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20. Constitutional Foundations
basis upon which a state is organized, and the powers of government defined
The supreme law
2 Major Parts
Canadian Charter of Rights and Freedoms
Amending Formula
1867 B.N.A. Act and 1982 Canada Act
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Constitution
Division of Powers
Section 91: Federal powers
Section 92: Provincial powers
Residual power
given to the federal government; all matters not expressly given to the provinces belongs to the federal government
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Charter of Rights
Sets out basic rights and freedoms of all Canadians
Entrenched in the Constitution
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.
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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 last for a five year period, unless renewed
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Fundamental Freedoms
S.2
Freedom of conscience and religion
Freedom of thought and expression
Freedom of the press
Freedom of peaceful assembly
Freedom of association
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Other Rights
Mobility
Permits free movement within Canada
Personal Liberty
Enjoy life without interference of the State
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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Other Rights
Right to Due Process
Informed of rights on arrest
Right to a lawyer
Only arrested for committing an offence
Innocent until proven guilty
Right to fair trials, reasonable bail
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Other Rights
Equality Rights
Every individual is equal before the law
Note language of charter language: person, citizen, individual
No 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
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Other Rights
Language Rights
2 official languages of English and French
Government (federal) provide services in both official languages
Rights of education in preferred language
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Enforcement of Rights
Apply to the courts
Charter only applies to governments not private groups
Private matters dealt with through 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
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30. Classification of Laws
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
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SUMMARY
Law is the means by which state maintains social control
Courts used as vehicle of enforcement
Common law and statute law exist today
Precedent “stare decisis” exists in our system
Charter Rights
S.1 not absolute
S.33 can be overridden with notwithstanding clause
Substantive rights and law enforced through procedural law
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