Sources of Law

Question 1

What is the Magna Carta?

Answer 1

It was a shift from monarchy to democracy. Royal powers were no longer absolute, however, feudalism remained until 1666.

Question 2

What is the significance of the Battle of the Plains by Abraham?

Answer 2

• War that established Britain as the dominant naval and colonial power in Europe
• It is the wellspring of significant future legal pronouncements: the Royal Proclamation of 1763, the British North America Act, 1867, and, ultimately, the Constitution Act, 1982

Question 3

The Royal Proclamation of 1763

Answer 3

-It provided a governor and council to administer Quebec until conditions permitted an elected assembly, the introduction of English law and courts, and a guarantee of Indigenous self-government.

Question 4

Quebec Act

Answer 4

• Established due to the failure of Americans not flooding Quebec, to assimilate the French.
• It ensured the right of Roman Catholics to participate in government and for the use of French civil law

Question 5

The Constitution Act of 1791

Answer 5

• It divided Quebec into Upper and Lower Canada.
• It created legislative and executive branches of government in Canada. The executive wasn’t responsible to the legislative assembly but to the interest of the British.

Question 6

The British North American Act of 1867

Answer 6

• Defined as Canada’s original source of law, setting out the power of the federal and provincial governments in sec 91 and 92.
• The monarchy no longer retained the power of decision-making. However, it was embodied in the office of the governor-general

Question 7

What are the classifications of law in Canada

Answer 7

Domestic (public and private law/substantive and procedural law) and International Law

Question 8

What is a substantive law

Answer 8

The actual law. They set out specific penalties for specific kinds of conduct by the public that is prohibited by statute

Question 9

What is a procedural law

Answer 9

Sets out the process, formalities, or mechanisms for enforcing the law. Also referred to as lex fori, which means the law of the forum or court in which a case is tried

Question 10

Are substantive and procedural law related? In what way

Answer 10

Yes, they are, because Procedural law is also substantive in that the procedural mechanism is often set out within a specific statute

Question 11

Are public and private law related? In what way

Answer 11

Yes, they are, because private agreements have public interest embedded in them. Private law also affects public interest and vice versa

Question 12

What is a public law

Answer 12

This is a law in which the state is a party to the action, they are based on collective interest. eg constitutional law, criminal law, administrative law, taxation law

Question 13

What is private law

Answer 13

They are laws that govern the actions of private citizens. eg contract law, tort law, property law, family law, estate law, corporate law, etc

Question 14

What is constitutional law

Answer 14

They are laws that construct and regulate political life.

Question 15

What is criminal law

Answer 15

This is a state’s definition of intolerable behaviours deserving of punishment

Question 16

Public dimensions of private law

Answer 16

Family law: This is because there is a strong collective interest in the legal definition of family relationships and in the responsibilities that flow from these relationships, particularly when children are involved
Corporate law
Estate law: This is because the passage of wealth from one generation to another define the collective character of a nation – economically, socially, politically

Question 17

What is the hierarchy of authority?

Answer 17

The constitution, then statutes and common law judgements/case law/regulation

Question 18

What are the four sources of law?

Answer 18

• Statutes
• Case law/Common Law Judgement
• Customs
• Books of Authority

Question 19

What is the Canadian constitution (stated in sec 52 of the Consitution Act)

Answer 19

• It is the supreme law of Canada and any law that is inconsistent with it, is of no force or effect
• It includes the Canada act 1982, the Acts and orders referred to in the schedule and any amendment to the acts and orders in both legislation

Question 20

What are the two major written constitutions in Canada

Answer 20

Constitution Act 1867 and Constitution Act 1982

Question 21

What are statutes?

Answer 21

• They are formal products of the legislative process, therefore they come from legitimate law-making institution.
• To pass a statute, the government must pass a bill through the House of Commons or the legislative assembly. It then goes through three readings that analyze the bill. At the third stage, after passing through the senate, it is given to the governor-general to sign

Question 22

Examples of statutes in Canada (RSC) Reserved statute for Canada

Answer 22

Federal statutes include the Criminal Code of Canada, Income Tax Act, Emergency Act

Question 23

Examples of statutes in Provinces (RSO) Reserved statute for Ontario

Answer 23

Highway Traffic Act, Liquor Control Act, Residential Tenancy Act

Question 24

Define regulations

Answer 24

They are laws made under a delegation of authority (by statute) to another body or office. They are legally binding, flexible and distinct from other forms of soft law

Question 25

What are Case Laws

Answer 25

• They are laws established by decisions made in specific court cases.
• Courts may turn to this decision in future cases. This is called judicial precedent.
• It is less authoritative than statutes

Question 26

What are customs

Answer 26

They are practices and patterns of behaviour through which society had come to order itself

Question 27

What are books of authority

Answer 27

They are summaries of various forms of law. Courts use this book to assist them in constructing judicial precedent.

Question 28

What are courts?

Answer 28

• They are responsible for dispute resolution/adjudicate
• They also offer in arbitration (dispute is submitted, by agreements of two parties) and mediation (involves a third party in settling conflict between two parties)

Question 29

Explain the systems of Law

Answer 29

• Civil Law: They are matters of private law. It also means a legal system based on civil code such as the Civil Code of Quebec. They are the oldest systems of law originated from the ancient Roman system
• Common-Law: They are laws developed through court decisions, rather than through legislative statutes alone.

Question 30

Decisions in the common law are called?

Answer 30

Judicial precedent

Question 31

Features of the Civil law (eg Continental Europe, Asia, Quebec, and Scotland partly)

Answer 31

• Codification
• Written codes/constitution
• They apply codes to dispute in courts.

Question 32

Features of the Common law (eg UK, Canada, US, some former British colonies)

Answer 32

• They are organic and experimental
• They are case law (judge-made law)
• Written and unwritten constitution
• Stare Decisis - “deciding like cases alike”