Sources of Law Flashcards
What is the Magna Carta?
It was a shift from monarchy to democracy. Royal powers were no longer absolute, however, feudalism remained until 1666.
What is the significance of the Battle of the Plains by Abraham?
- 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
The Royal Proclamation of 1763
-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.
Quebec Act
- 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
The Constitution Act of 1791
- 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.
The British North American Act of 1867
- 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
What are the classifications of law in Canada
Domestic (public and private law/substantive and procedural law) and International Law
What is a substantive law
The actual law. They set out specific penalties for specific kinds of conduct by the public that is prohibited by statute
What is a procedural law
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
Are substantive and procedural law related? In what way
Yes, they are, because Procedural law is also substantive in that the procedural mechanism is often set out within a specific statute
Are public and private law related? In what way
Yes, they are, because private agreements have public interest embedded in them. Private law also affects public interest and vice versa
What is a public law
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
What is private law
They are laws that govern the actions of private citizens. eg contract law, tort law, property law, family law, estate law, corporate law, etc
What is constitutional law
They are laws that construct and regulate political life.
What is criminal law
This is a state’s definition of intolerable behaviours deserving of punishment
Public dimensions of private law
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
What is the hierarchy of authority?
The constitution, then statutes and common law judgements/case law/regulation
What are the four sources of law?
- Statutes
- Case law/Common Law Judgement
- Customs
- Books of Authority
What is the Canadian constitution (stated in sec 52 of the Consitution Act)
- 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
What are the two major written constitutions in Canada
Constitution Act 1867 and Constitution Act 1982
What are statutes?
- 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
Examples of statutes in Canada (RSC) Reserved statute for Canada
Federal statutes include the Criminal Code of Canada, Income Tax Act, Emergency Act
Examples of statutes in Provinces (RSO) Reserved statute for Ontario
Highway Traffic Act, Liquor Control Act, Residential Tenancy Act
Define regulations
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
