Historical Roots of Law Flashcards
What are the 4 foundations of Canada’s legal heritage?
Rule of law, freedom under the law, democratic principles, respect for others
What are the 3 primary sources of Canadian law?
The written constitution, statute law (created by legislatures), case law (created by judges)
What are the secondary sources of Canadian law?
The Ten Commandments, Magna Carta, Roman Law, Canon Law, the writings of legal scholars (Coke, Blackstone), community standards, Hogg’s text, constitutional conventions
What is the Code of Hammurabi?
Body of law of Babylon, written by the empire’s ruler, Hammurabi, that associated punishment (motivated by retribution) to crimes for convicts, usually by death – adopted “an eye for an eye” mentality, and is regarded as the first-ever recorded/written body of law in human history
What legal principles of Ancient Greece have been adopted in Canada?
Family laws, procedural laws, public laws (more developed/progressive versions – Greek family and tort laws gave no power to women)
The use of jurors (obligation to serve on a jury) and the concept of democracy (originated in Greece)
What is Mosaic Law?
Made up of the ten commandments, the ordinances, and the worship system
Focuses on restitution (paid compensation) as punishment for convicts
The Rule of Law is derived from Mosaic Law – no one is above the law, not even people in power
Consists of 613 laws that dictate the ways in which people of the Jewish faith should conduct their lives (now held in the Torah)
Examples: no murder, no stealing, no tattoos, obligation to give to charity, not permitted to attempt to contact the dead, no idols
What is Roman Law (from Ancient Rome) and which principles did Canada adopt from it?
Developed over centuries, evolving from the Twelve Tables to advanced legal code
Primarily known for promoting pluralism (co-existence among people of different ethnic, racial, religious, social backgrounds)
Examples: scheduled elections, impeachments, vetoes, equal treatment under the law, innocent until proven guilty)
What is Magna Carta?
A foundational document in the history of constitutional law, signed by King John of England in 1215 under pressure from the rebellious barons
Translates from Latin as the “Great Charter”
Aimed to limit the power of the monarch by establishing certain legal rights and principles (e.g. protection against arbitrary imprisonment, guarantee of fair treatment under the law, recognition that the King is subject to the law)
Examples: no new taxes, right to justice and a fair trial with a jury, no absolute power for the monarch, right to own and inherit property
Instituted the Rule of Law (equality before the law)
Habeas Corpus: upheld that a person who was arrested/detained was entitled to a court appearance within a reasonable amount of time (24 hours in Canada)
What is the Napoleonic Code and how has it influenced Canada?
The Civil Code of France, enacted in 1804 to modernize and unify France
Quebec continued to use the French Civil Law after Britain took over Canada in 1763
Name and define the 3 methods of adjudication (derived from British influences).
Trial by ordeal: when a lord could not determine guilt or innocence by facts, the accused underwent an ordeal of torture – guilt or innocence was determined by G-d, depending on the result of the ordeal (e.g. purging by water); if the accused was innocent, G-d would perform a miracle on their behalf
Trial by oath helping: requiring friends to swear on the Bible that a person was innocent
Trial by combat: the two disputing parties would engage in a duel, the idea being that G-d would be on the side of the innocent man (also known as a judicial duel)
Differentiate between the Adversarial and the Feudal System.
Adversarial: similar to trial by combat, except that the two sides of a dispute were presented by lawyers, and a judge and/or jury determined whether the accused was innocent or guilty
Feudal: William the Conqueror (1066) divided up the land into parcels that he gave respectively to nobleman who were responsible for enforcing law on their properties, which resulted in unfair treatment (inconsistency) from one place to the next
What is reception?
All English statutes enacted prior to reception (independence from British rule) are laws in Canada, unless they were changed in Canada
What were circuit judges?
A system of travelling judges called upon to hold court throughout various towns to ensure regional fairness of the law
Define case/common law, and the rule of precedent.
Case/common law: judges would compare cases and record decisions so that similar cases would be treated the same or similarly
Rule of precedent: applying a previous decision to a case that has similar circumstances; “to stand by the decision”
