sources of law (lec 2)

Question 1

what is reasoning? What is it also known as?

Answer 1

judges must explain how they came to a decision

ratio decidendi

Question 2

3 things judges need to produce as reasoning

Answer 2

1. written constitution
2. reference to legislative statutes
3. reference to prior judicial decisions

-known as PRECEDENTS
-aka principle of stare decisis

Question 3

legal reasoning

Answer 3

understood as reasoning by example

Question 4

What is obiter dicta? Does it have value in precedent?

Answer 4

comments on law or policy that do not directly impact the decision on the case; does not have precedential value.

Question 5

role of judges in legal reasoning

Answer 5

-see if current case resembles a plain case sufficiently+ is relevant

-use precedent and new ideas

-stare decisis; consideration NOT rule, judges must be critical and re-evaluate it

-understand changing society+reflect that in decisions

Question 6

common law

Answer 6

-judge made law

-uses the past to guide present day behaviors

Question 7

what is the value of common law? (3 things)

Answer 7

-consistency/certainty; (laws of today need to be valid tomorrow)

-predictability b/w present and future

-guarantees rule of law; (justice applied equally and impartially)

Question 8

what are statutes, what do they do?

Answer 8

laws made by legislative bodies

set framework of a regulation

Question 9

difference b/w common law and statutes

Answer 9

statutes don’t use precedent

-complex precedent of common –> clear, codified statues
-easier for common ppl to understand
-therefore democracy improved

Question 10

what led to statues

Answer 10

mistrust of elites

-1892 criminal code replaced common law criminal offenses

-hope: take away more influence from judges so stare decisis wouldn’t be needed

Question 11

how do statutes take away more power from judges

Answer 11

-more constraint than common law

-can’t challenge parliament

-codified crimes: all judges need is to apply the law, less interpretation needed

-judges can’t make law (but still make decisions)

Question 12

why was stare decisis still present even after criminal code was established?

Answer 12

-its impossible to create statues that encompass every future situation

-difference between what’s written and the reality in which they’re should be applied

Question 13

does international law impact domestic law?

Answer 13

Yes. It still impacts domestic law even if it’s outside jurisdiction

40% of federal statues come from international rules

Question 14

How/why does international law impact domestic law?

Answer 14

-international agencies; binding rules, our laws must match the organization’s (ex. WHO, UN, UNESCO)

-treaties, laws must match treaty

-dispute b/w countries; resolution is to amend/change or add laws

Question 15

What is the process of creating treaties? Are states forced? What has to be taken into consideration when implementing?

Answer 15

-states VOLUNTARILY create treaties

-after creation, implementation of new laws/changes

-federal gov. responsible for policy + formation

-treaties which require legislation changes must go thru parliament

-constitution sets terms of federal+provincial powers, so it must be considered when making treaties

Question 16

Canada is a federation, what does this mean?

Answer 16

-provinces joined Canada VOLUNTARILY, at different times

-each province had its own conditions, such as the building of a railroad, or wiping debt

Question 17

What is Canada’s approach to international law?

Answer 17

Dualism

Question 18

What is dualism with respect to international law?

Answer 18

In Canada’s legal system, it is understood that international and domestic law operate in separate spheres

Question 19

Where does the influence of Canada’s response to international law and treaties come from?

Answer 19

Britain, from the colonization of north America

Question 20

What is the goal of dualism? How does the system adopt domestic law from international? Are we forced to adopt international law?

Answer 20

-protect society from unwanted intrusion of international laws

-system CHOOSES what parts they want to adopt as domestic law. Done by creating our own statutes

Question 21

where is an example another place law can be “seen”

Answer 21

Museum

Question 22

how is a museum somewhere where law can be “seen”?

Answer 22

-reflects political community

-built on legacies of colonialism+imperialism

-present idea of ‘the people’ which enables ‘the people’ to be governable in a way

-evolution from primative –> civilized life

-helps create citizenry (shared experience)

-more negatively- can do poor job of representing groups/ppl or even erasing them altogether

Question 23

What are rules of equity?

Answer 23

solutions to address the rigidity and unfairness of
the common law rules

Question 24

What is subordinate legislation? What does it deal with?

Answer 24

bodies to whom legislatures gave some of their law-making authority

deals with trivial details of statutes

Question 25

What did the The Quebec Act (1774) mean for Quebec’s private law?

Answer 25

kept private law rooted in the French tradition