Nature and Origin of Law Flashcards
What are the five main purposes of Law
Protection of people, property, and goods
Upholding public morals
regulate business
protect the ruling class
resolve conflict
What is Common Law (Case Law)
Based on a system of precedent
Judges develop principles of law, followed in subsequent cases
What is predictability and flexibility in Common Law
Predictability - Stare Decisis- to stand by things decided (similar cases should bring similar results)
Flexibility- sometimes a case has slightly different facts so judges have discretion
Define Ratio and Obiter
Ratio- the principle that the case was decided on
Obiter-judges incidental expression of opinion, not essential to the decision and not establishing precedent
What is Statute Law
Legislation made by federal, provincial, and municipal governments
-codification
-changes existing common law
-update the law when its evolution is too gradual
What is the Constitution
“higher law” by which all other laws are judged
Charter of rights and freedom
Government regulates/ controls business environment through legislation
What is the Doctrine of paramountcy
where there is a conflict between valid provincial and federal laws, the federal law will prevail
What is Custom and Legal Texts
Custom-originally all law based on custom ex. law of merchant, portal acceptance rule
Legal Texts- well know authorities are often quoted in courts for their interpretation of the law
What is Substantive Law
Cases and statutes specifying a persons rights and duties (what the law is) ex. right to vote, to own property
What is Procedural Law
The process by which rights are protected and duties enforced (how the law is enforced)
Steps to Precedent questions
Step 1: Stare Decisis (if it fits follow)
Step 2: What is the same and what is different
Step 3: Distinguish
