sources of law (lec 2) Flashcards
what is reasoning? What is it also known as?
judges must explain how they came to a decision
ratio decidendi
3 things judges need to produce as reasoning
- written constitution
- reference to legislative statutes
- reference to prior judicial decisions
-known as PRECEDENTS
-aka principle of stare decisis
legal reasoning
understood as reasoning by example
What is obiter dicta? Does it have value in precedent?
comments on law or policy that do not directly impact the decision on the case; does not have precedential value.
role of judges in legal reasoning
-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
common law
-judge made law
-uses the past to guide present day behaviors
what is the value of common law? (3 things)
-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)
what are statutes, what do they do?
laws made by legislative bodies
set framework of a regulation
difference b/w common law and statutes
statutes don’t use precedent
-complex precedent of common –> clear, codified statues
-easier for common ppl to understand
-therefore democracy improved
what led to statues
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
how do statutes take away more power from judges
-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)
why was stare decisis still present even after criminal code was established?
-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
does international law impact domestic law?
Yes. It still impacts domestic law even if it’s outside jurisdiction
40% of federal statues come from international rules
How/why does international law impact domestic law?
-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
What is the process of creating treaties? Are states forced? What has to be taken into consideration when implementing?
-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
Canada is a federation, what does this mean?
-provinces joined Canada VOLUNTARILY, at different times
-each province had its own conditions, such as the building of a railroad, or wiping debt
What is Canada’s approach to international law?
Dualism
What is dualism with respect to international law?
In Canada’s legal system, it is understood that international and domestic law operate in separate spheres
Where does the influence of Canada’s response to international law and treaties come from?
Britain, from the colonization of north America
What is the goal of dualism? How does the system adopt domestic law from international? Are we forced to adopt international law?
-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
where is an example another place law can be “seen”
Museum
how is a museum somewhere where law can be “seen”?
-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
What are rules of equity?
solutions to address the rigidity and unfairness of
the common law rules
What is subordinate legislation? What does it deal with?
bodies to whom legislatures gave some of their law-making authority
deals with trivial details of statutes
What did the The Quebec Act (1774) mean for Quebec’s private law?
kept private law rooted in the French tradition
