CH 1 - Intro, Law, Society, Business

Question 1

What is the rule of law?

Answer 1

Established legal principles that treat all persons equally and the government itself obeys

Question 2

Describe the 3 main roles of law in our society ***

Answer 2

The law:

INDIVIDUALS, GOVERNMENT, BETWEEN INDIVIDUALS

1. Influences and controls behavior of individuals in society (governance of conduct)
2. Empowers, influences, and controls the actions of government (authority of the government to act)
3. Influences and controls interaction between individuals (governance of relationships)

Question 3

What are the two Primary philosophies of law? Briefly Distinguish the two

Answer 3

Natural Law and Legal Positivism

Natural law (Latin: ius naturale, lex naturalis) is law that is held to exist independently of the positive law of a given political order, society or nation-state. The concept of natural law is closely related to the concept of natural rights which are rights considered universal and inalienable (they cannot be repealed by human laws, though one can forfeit their enforcement through one’s actions, such as by violating someone else’s rights).

> Natural law can have a religious perspective (consideration of how human beings manifest the divine image in their life).

> Or a non-religious perspective whereas the law of nature is implied to be objective and universal; it exists independently of human understanding

Legal Positivism concerns Physical Laws(such as gravity) and Normative laws (moral rules, or enforceable rules).

Normative law is used to describe the way something ought to be done according to a value position. As such, normative arguments can be conflicting, insofar as different values can be inconsistent with one another.

Question 4

What are the 3 main sources of law? ***

Answer 4

1. The constitution - the basic law from which all other laws draw their power.
2. Legislation - Statute law. Acts and pieces of legislation passed by the government in compliance with the constitution.
3. Common law - case law or judge law. A collection of individual cases decided by the courts that develop and shape legal principles.

Question 5

How is the legal infrastructure of a country significant for business?

Answer 5

Law outlines what to do and how to do it, and what not to do. Businesses could face criminal, regulatory, and/or civil liability of they do not comply.

Legal certainty (the infrastructure that clearly defines right and responsibilities and properly enforces them) is a key factor in investment analysis. As is the degree or nature of regulations (though less important)

Question 6

What is legal liability?

Answer 6

The responsibility for the consequences of breaking the law.

Question 7

Distinguish between criminal liability and civil liability. What is regulatory/quasi-criminal liability?

Answer 7

Criminal liability is the responsibility arising from commission of an offence against the government or society as a whole.

Civil liability is the responsibility arising from a breach of private law, enforced through a lawsuit initiated by the injured victim.

regulatory/quasi-criminal liability is responsibility arising from breaches of less serious rules of public law, often enforced through specialized regulatory tribunals set up by the government for specific purposes.

Question 8

Are laws and ethics the same thing?

Answer 8

No. Ethics may shape the direction and development of the law but they are not the same as the law.

Individuals must comply with the law. Therefore laws must be fair so that most of society views them as acceptable and voluntarily complies.

Morals and Ethics are optional standards of behavior that people ought to observe but are not compulsory. They are considered a higher standard than the law, involving concepts such as integrity and trust and honor.

Question 9

What are the features of a legal risk management plan? ***

Answer 9

A legal risk management plan is a plan developed by a business that identifies potential legal liability and provides preventative and remedial strategies.

It features:

ID, ADPR

1. the ID of potential legal risks
2. An assessment and prioritization of each legal risk based on likelihood and magnitude.
3. Development of strategies to address each risk from proactive and reactive perspectives
4. Plan implementation.
5. regular review and updating of the plan

Question 10

Why have business organizations adopted codes of conduct?

Answer 10

Businesses are encouraged to live up to a higher ethical standard than is imposed on them by law. A way to promote an ethical climate in a business is to introduce a code of conduct.

Question 11

What is the special role of the courts in a federal country?

Answer 11

The courts decide if a statute is valid and enforceable. In Canada this validity depends on compliance with the constitution.

If a statute is valid, the court must decide what the words of the statute mean and whether interpretation covers the subject of the dispute.

Question 12

What are residual powers? concurrent powers?

Answer 12

Residual powers are powers that fall within federal jurisdiction because they are not expressly allocated to the provinces by the constitution.

Concurrent powers are overlapping powers of both levels of government to regulate the same activities.

Question 13

What strategies does a business use to manage legal risk?

Answer 13

A business will develop a legal risk management plan.

Question 14

What is the special meaning of public law as distinct from private law?

Answer 14

Public Law regulates the conduct of government and the relations between government and private persons.

Private law regulates the relations between private persons and groups of private persons

Question 15

Describe the special significance of sections 91 and 92 of the constitution act. What happens of a topic is not listed in either section 91 or 92?

Answer 15

The division of legislative power is mainly laid out in sections 91 and 92 of the constitution. It allocates certain areas to the federal parliament and other to the to the provincial legislatures.

If a topic is not expressly allocated in either section they are considered residual and fall within federal jurisdiction.

Question 16

How can a statute be challenged or declared invalid? ***

Answer 16

JURISDICTION, CHARTER, INTERPRETATION

1. Argue that the statute is invalid because the subject matter is outside the constitutional jurisdiction of the relevant government.
2. Argue that it is invalid because it violates the charter of rights and freedoms
3. Argue that the interpretation of the legislation is wrong, and the statute does not apply to the particular conduct.

Question 17

What is the charter of rights and freedoms? How the charter be changed?

Answer 17

A part of the constitution, the charter lists a variety of rights and freedoms that government may not unreasonably eliminate, restrict or ignore.
> It overrides all other legislation except when notwithstanding clause (sec 33) is invoked.
> Reasonable not absolute protections of individual rights and freedoms

It can only be changed by amending the constitution act - that is by consent of the parliament of Canada and the legislatures of at least 2/3 of the provinces containing at least 50 percent of the population of all the provinces.

Question 18

What is a business code of conduct?

Answer 18

A common standard of behavior that may take the form of a values statement or a prescribed set of rules often used by a professional organization setting out the duties and appropriate standards of behavior to be observed by its members

Question 19

Which activities are governed by the charter? and which are not? describe the distinction

Answer 19

The charter applies to governments and governmental activities; it has limited application between private persons.

The language of the charter makes it applicable to all statutes, stature regulations, municipal laws and crown corporations.

In the private sector the protection of human rights is a matter of human rights codes passed by each province. These codes are not entrenched and may be amended or repealed.

Question 20

What is federal paramountcy?

Answer 20

The principle that a federal law prevails over a conflicting provincial law

Question 21

What is burden?

Answer 21

The requirement that, unless a party can establish facts and law to prove its case, it will lose.

Question 22

What are some basic rights and freedoms protected by the charter?

Answer 22

Freedoms - COAA
> Conscience and religion
> opinion and expression
> assembly
> association

Legal rights - LLS, 
> Life, liberty, security
> No unreasonable search or seizure
> to counsel
> No arbitrary detention

Equality
> Age, religion
> race, colour
> nationality, ethnicity
> sex
> mental or physical disability.

Question 23

What are the 6 stages of attack for cases?

Answer 23

1. Identify the important question(s) or issue(s) in the case
2. Set out the applicable legal principle
3. Analyze the particular case in conjunction with the applicable principle(s). Do not repeat the facts of the case. Rather, indicate facts only to the extent that they are relevant to the applicable principles, only in the context of your argument.
4. Arrive at a reasonable conclusion supported by the preceding analysis
5. Compose and recompose your argument until it reads very well
6. Cases do not generally have one correct solution. Marks are awarded for the quality of your analysis, not for agreeing with your instructor.