Session 2 – Part 1, Chapter 2 – Common Law, Civil Law, and Other Legal Systems Flashcards
Overview of the legal system in Canada and it's history
Adversarial System
A system in common law courts where opposing litigants, through their counsel, are responsible for presenting their cases to a neutral judge or jury.
Bijural
Having two state-recognized legal systems operating within a single jurisdiction.
Bill of Rights (1689)
An English statute that established the supremacy of Parliament over the monarchy. Formally declaring that the Crown’s ability to legislate without Parliament’s approval was unlawful. This solidified the doctrine of parliamentary sovereignty, which holds that in situations where case law and legislation clash, legislation prevails. The Bill of Rights marked a pivotal shift in the English legal system, curtailing the monarch’s authority and establishing Parliament as the supreme legislative body.
Binding Precedent
A court decision that a lower court in the same jurisdiction must follow under the principle of stare decisis.
Chancery
A department of state in England historically responsible for legal matters and issuing writs.
Civil Code
A comprehensive and systematic legislative document that codifies a country’s private law in the civil law tradition.
Civil Law
A legal system based on codified rules and principles, originating in Roman law and prevalent in continental Europe and many former European colonies.
Common Law
A legal system developed in England, relying on precedent and the principle of stare decisis. Judge-made law plays a key role in this system.
Corpus Juris Civilis
A comprehensive codification of Roman law compiled under the Emperor Justinian, significantly influencing the development of civil law systems.
Court of Chancery
A court in England historically separate from common law courts, providing equitable remedies and mitigating the rigidity of common law rules.
Court of King’s (or Queen’s) Bench
A historical English court responsible for deciding criminal matters.
Distinguishable Precedent
A precedent that a lower court chooses not to follow due to material differences in facts or legal issues compared to the case at hand.
Customary Law
Rules of conduct considered binding at local or international levels, based on long-standing traditions and practices without formal codification.
Equity
A body of legal principles developed by the Court of Chancery in England, providing fairness and flexibility in legal remedies.
Inquisitorial System
A system in civil law courts where the judge plays an active role in questioning witnesses, gathering evidence, and directing the legal proceedings.
Inns of Court
Professional associations for barristers in England and Wales, with regulatory and educational functions for the legal profession.
King’s Peace
The ideal of peace and order that English monarchs were obligated to uphold and protect throughout the realm.
Persuasive Precedent
A precedent from another jurisdiction or a court of equal standing that may be considered by a judge but is not binding.
Ratio Decidendi
The legal principle or reasoning behind a court’s decision in a case.
Stare Decisis
The common law principle requiring courts to follow precedents set by higher courts in the same jurisdiction.
Writ
A historical legal document issued by a court ordering someone to do or refrain from doing something.
Customary Law
Definition: Rules of conduct that have become conventional within a society, often based on oral tradition.
Recognition: Can be recognized by subgroups within a state, incorporated into mainstream legal systems, or adopted as the state system.
What are the four main parts of Justinian’s Corpus Juris Civilis, and what was its intended purpose?
Justinian’s Corpus Juris Civilis comprises: (1) Codex, a collection of imperial edicts on private law; (2) Digest, containing legal commentaries by Roman jurists; (3) Institutes, a textbook for law students; and (4) Novels, detailing new laws. It aimed to codify and clarify Roman law, serving as a comprehensive legal source for citizens, scholars, and judges.
three factors a court may consider when establishing a new precedent in common law.
1) Similar cases, looking for trends and common legal principles; (2) Policy considerations, assessing potential societal benefits or drawbacks of a new rule; and (3) Societal change, adapting the law to reflect evolving social values and realities.
