Our Legal History

Question 1

Jurisprudence

Answer 1

Defined as the science or philosophy of law that deals with applying legal doctrines and investigating the concepts/notions/principles of legal thought. Jurisprudence is compared to an iceberg because a small portion can be easily explained and seen and other portions are hidden and require exploration

Question 2

Aboriginal/Indigenous Law

Answer 2

Primary Source of Law
‘Great Binding Law’
Many levels within the governing body check the powers of others

Question 3

History - British

Answer 3

Primary Source of Law
case/common law
Circuit judges led to more consistency within the legal system as they started using an early version of stare decisis/precedent
trial by jury in England
Magna Carta rule of law
innocent until proven guilty

Question 4

History - French

Answer 4

Primary Source of Law
Civil laws were organized in codes organized by topics
Napoleonic Code, or French Civil Code, forms the foundation of the Quebec Civil Code - The implementation of this code relies on the interpretation of references to the code itself, rather than the precedence
heavy influence on the Quebec Civil Code

Question 5

Customs and Conventions

Answer 5

Primary Source of Law
Customs - long-established way of doing something that has acquired the force of a law
Conventions - a way of doing something that has been accepted as a law for so long that it amounts to an unwritten rule
Apply mainly to political practices
Example - the convention that if a government loses in a vote of non-confidence they will resign and run a new election

Question 6

social and political philosophy

Answer 6

Primary Source of Law
Public reaction to the holocaust and US civil rights movement
The socialist political philosophy spread by the Co-operative Commonwealth Federation party made in the 1930s
Had a direct impact on legislation surrounding areas of social security, employment insurance, workers compensation
Separatist political ideaolgy spread by the Parti and Bloc Quebecois seeking to make changes to Confederation is reflected in Quebec legal body

Question 7

The constitution

Answer 7

Secondary Source
delegates the powers to the different branches of government. It outlines the overall structure and principles of the government and legal system, and therefore provides reference for how things can be carried out

Question 8

Statute Law

Answer 8

Secondary Source
They are laws passed by the legislative body that cover areas that aren’t mentioned in the constitution.
Sections 91 and 92 give provinces the power to make decisions on matters that affect their province, while matters that concern the entire country are within the jurisdiction of the federal government. They define their respective jurisdictions.

Question 9

Case Law

Answer 9

Secondary Source
the rule of precedence, it can be used to judge like cases and is used as reference when interpreting cases

Question 10

Jantunen v. Ross

Answer 10

Case: Jantunen v. Ross - do tips count as wages and should they be taken 100% to pay back garnishee, or are they counted and only taken 20% – judge found that they were wages due to statutory interpretation, the original intent behind the wages act

Question 11

Natural Law

Answer 11

Natural law is the theory that there are laws that are inherent and are derived from the natural world, humans become aware of them through the use of reason.
All human laws are dervied from the natural law
Principle of “god given” “inherent unchanging and universal”

Question 12

Socrates

Answer 12

natural law: thought that law demands that people avoid what is wrong, justice is based on eternal principles, the law must guide people into “right living”
moral imperative in the law

Question 13

Plato

Answer 13

natural law: thought the law was meant to develop a good life through principles of justice
the republic - natural law is present in the individual and the state (humans by reason, the state by law)
Justice occurs when the powers of the individual or the state are working together in harmony for the good of the whole

Question 14

Aristotle

Answer 14

Natural law: theory of rationalism - human ability for reason; analyzing the natural world with reason
3 classes of people - born good, made good, or ruled by passion; the law persuades good through the fear of punishment
The law was meant to help humans live a good life using reason

Question 15

St. Thomas Aquinas

Answer 15

Natural law: Defines human law
is it a product of human reason, made for the common good, made by ruler who cares for the community, is published/codified
4 kinds of law
eternal, natural, divine positive, human positive
The state is not absolute, the church is as the law is meant to reunite with God
Bound to law by conscience, no moral obligation to follow unjust laws

Question 16

Cicero

Answer 16

Natural law: civil laws that contradicted natural laws should be disobeyed
law is the mind and reason of intelligent man

Question 17

Positive Law

Answer 17

law developed by the head of the state for the good of the state as a whole
it had no moral purpose other than to ensure the survival of the state.
Obedience was not a matter of conscience, but was made to be obeyed.

Question 18

Thomas Hobbes

Answer 18

Positive law: lived during a revolution
state of war by nature, law was created to maintain order through a leader who was strong and could rule over all (calls for the revival of a monarchy)

Question 19

John Locke

Answer 19

Positive law, incorporates natural law
absolute powers like a monarchy should be checked by the public through rebellions against unjust rulers
the government should protect fundamental freedoms (natural rights)
the public trusted the gov’t to protect their rights and in turn they would obey the law
Foundation of democracy - consent of the people and protection of rights

Question 20

Jeremy Bentham and John Austin

Answer 20

Both positive law
Bentham - Utilitarianism; law is meant to generate the best outcome for the largest amount of people, law is good or bad based on its utility in society
Austin - Separated morality from the law as it was too subjective
Positive law offered an objective judgement and were supposedly made with the best interest of society at heart

Question 21

Legal Realism

Answer 21

rejects formalism
law is based on uncertain/vague ideals - subjective by nature
law is a result of judge’s beliefs – appeals to the human side of law; ethical, moral, emotional
analyzes the socioeconomic impacts of decisions (Brandeis Briefs?)

Question 22

Legal Formalism

Answer 22

law is a body of rules mothing more, should not be subjective, no judge interpretation
law is objective and therefore predictable

Question 23

Restrain of Power (Selznick)

Answer 23

A country will have the best laws when there is an independent body that can limit/challenge/review laws or decisions made by a ruling power
law’s essence lies in predictable restraint on ruling powers
challenge to authority allows for high quality of law

Question 24

Roncarelli v. Duplessis

Answer 24

• restrain of power/rule of law
  the courts limited the power of the premier upheld rule of law