Legal Terms: Chapter Two - Legal Systems in Canada

Question 1

Adversarial System

Answer 1

System used in common law courts where lawyers oppose each other in the courtroom and present their cases without interference from the judge.

Question 2

Bijural

Answer 2

Term used to describe the operation of two legal systems in one jurisdiction such as the common law and civil law systems in Canada.

Question 3

Bill of Rights (1689)

Answer 3

Act of the Parliament of England in which the power of the Crown to legislate without the consent of Parliament ended.

Since this Bill, the common law traditions have recognized the power of legislation and case law (decision of the courts)

Question 4

Binding

Answer 4

Term used to describe a higher court decision that a lower court in the same jurisdiction must follow according to the principle of “stare decisis” (which is to stand by decided matters).

Question 5

Chancery

Answer 5

Established by English monarchs to assist with legal matters and to issue writs in which regular courts would judge unfairly.
A court of equity, equity court or chancery court is a court that is authorized to apply principles of equity, as opposed to those of law, to cases brought before it.

Question 6

Civil Code

Answer 6

Legislative code of a country’s private law.

Question 7

Civil Code of Quebec

Answer 7

Current Civil code since January 1, 1994.
Covers much of private law in the province of Quebec.

Question 8

Civil Law

Answer 8

• System based on codified rules, may also refer to private law.
• Primary source of private law
• Precedents used but are not binding

Question 9

Common Law

Answer 9

• Based on the English Legal Tradition that relies on the Precedent rather than on codified rules.
• favours Case law generally as opposed to legislation
• Judges follow precedent (apply judicial decisions to present cases, NOT distinguishable)
• Make use of Stare Decisis (decide cases based on binding precedents)
• Make use of an adversarial court process.

Question 10

Corpus Juris Civilis

Answer 10

Codification of Roman Civil Law compiled by Justinian (483-565CE)

Involves rights and obligations between family members, rules of contracts, citizen rights to acquire and dispose of property.

Question 11

Court of Chancery

Answer 11

English Court existing separate from Common Law Courts (established to provide equity).
A court that is authorized to apply principles of equity, as opposed to those of law, to cases brought before it.
Adjudicates petitions from plaintiffs appealing from outside writ system.

Question 12

Court of King’s (or Queen’s) Bench

Answer 12

English Court that decided criminal matters.

Question 13

Customary Law

Answer 13

System of law based on rules of conduct considered binding at a local or international level with no formal process put in place to make, change or record such laws.

Laws that are not formally recognized. (ex: Indigenous or Religious Laws)

Question 14

Distinguishable

Answer 14

Term given to a precedent from a higher court that a lower court decides not to follow, usually on the grounds that the facts in the cases differ.
Arguments such as “overruled by a higher court”, “no longer applicable due to change in circumstances”, “poorly reasoned and lost its reputation as a good low” or has been “reinterpreted differently by different judges”.

Question 15

Equity

Answer 15

Discretionary legal decisions offered by judges in the Court of Chancery based on fairness and providing relief from rigid procedures that had evolved under common law courts.

Question 16

Feudalism

Answer 16

Sociopolitical system in medieval Europe based on relationships of obligation and allegiance between king, nobles and subjects with land given to subordinates in return for loyalty and military support.

Question 17

Inns of Court

Answer 17

Professional Associations for lawyers in England and Wales with supervisory and disciplinary functions over their members and authority to call law students to the bar

Question 18

Inquisitorial System

Answer 18

Feature of Civil Law proceedings where trial judges actively assist lawyers in presenting their cases and are free to call and question witnesses and to order investigations into other evidentiary matters.
Contrasts the adversarial system used in common law courts.

Question 19

King’s Peace

Answer 19

The ideal peace and well-being of a nation that the English monarch was obliged to uphold and protect.

Question 20

Persuasive

Answer 20

Describes a precedent that a court is persuaded to give some weight to but is not bound to follow, because the precedent is from another jurisdiction or is otherwise not binding.

Question 21

Ratio or Ratio Decidenti

Answer 21

The reason for the decision (Latin phrase)
Refers to the governing rule in a case or the way it was applied to the facts.

Question 22

Stare Decisis

Answer 22

“To stand by decided matters” (Latin phrase) referring to the common law [principle that a precedent is binding on lower courts in the same jurisdiction,

Question 23

Writ

Answer 23

Court document obtained by a plaintiff by which the defendant was informed that a particular type of action had been started against him,
The plaintiff (person who initiated a civil or non-criminal action calls a …

Question 24

Writ System (Common Law Rules)