90

Law: Its Purpose and History

Chapter 1

90

What is Law?

Laws are essentially a set of rules, but there are 3 main characteristics that make laws different from simple rules:

1. Laws are a set of rules established and enforced by government.

2. Laws are mandatory.

3. Laws involve consequences.

90

Functions of Law

Laws…

i) Establish rules of conduct

ii) Provide a system of enforcement

iii) Protect rights and freedoms

iv) Protect society

v) Resolve Disputes

90

Divisions of Law

In Canada, the law is divided into two basic types: substantive and procedural.

Substantive Law: laws that outline a person's rights and responsibilities; furtherdivided into Public and Private Law.

Procedural Law: legal processes that protect and enforce our rights.

90

Public Law

There are 3 types of public law:

1. Criminal Law: outlines offences against society and their punishments.

2. Constitutional Law: outlines the structure and powers of governments.

3. Administrative Law: outlines the relationship between citizens and government agencies.

90

Private LawAlso known as Civil Law; there are 5 types:

1. Tort Law: a person is held responsible for damage caused to another; "tort" is Latin for "a wrong".

2. Family Law: deals with the various relationships of family life (e.g. marriage)

3. Contract Law: outlines requirements for legally binding agreements.

4. Property Law: outlines relationship between individuals and property.

5. Labour Law: outlines relationship between employers and employees.

90

Early History of Law

• In ancient societies, local customs and beliefs made up the law.• Customs were not written down and

instead were passed on by word of mouth.• As populations increased, laws became

more complex and codification became necessary.• Codification: a written collection of laws.

90

Evolution of Law

• Code of Hammurabi, c. 1750 BCE: – One of the earliest records of written law.– King Hammurabi of Babylon codified nearly 300 laws

in columns of stone.

• Mosaic Law, c. 1240 BCE:– Based on the Ten Commandments.– Bible states that Moses received these laws from God

on two stone tablets.

• Justinian Code, c. 550 CE– Byzantine Emperor Justinian codified 1000 years of

Roman laws.– First legal code that emphasized equality under the

law.

90

Evolution of Law contd…

• Magna Carta, 1215:– English noblemen forced King John to sign

this document that established the rule of law - that all people, including the king, had to obey the same laws; no one was above the law.

• Napoleonic Code, 1804:– A new set of civil laws for French people.– Became the model for most of Europe.– Also referred to as the French Civil Code.

90

Feudalism

• In 1066, King William of England introduced a feudal system.• Under this system, the king owned all of

the land and divided most of it among his lords or noblemen.• The Lords had their own servants, or

vassals.• If a vassal broke the law, their Lord could

punish them however they saw fit.• Punishments were inconsistent and

unfair.

90

Common Law

• King William appointed judges to travel throughout England and decide cases.• Cases with similar facts were decided in

the same way.• If a judge issued a verdict in a new case,

that decision became the standard for similar future cases - precedent.• The system of law based on past legal

decisions is known as common law or case law.

90

Rule of Law

• This legal principle was recognized in the signing of the Magna Carta of 1215.• The rule of law states that the law

applies equally to all persons.• The Magna Carta also introduced the writ

of habeas corpus – a document that is used to determine whether or not someone is being legally detained.

90

Rights & Revolutions

• In the 18th century, two significant revolutions took place that contributed to the development of human rights.

1) American Revolution, 1775• U.S. broke away from British rule and

issued the Declaration of Independence in 1776.• In 1791, the U.S. Bill of Rights was added

to the American Constitution, which is still their basis of civil rights and freedoms.

90

Rights & Revolutions contd…

2) French Revolution, 1789• Influenced by the ideas of liberty and

equality in the American Revolution, the French rose up against their king to end feudalism.• A National Assembly was set up with

members who were elected by citizens.• The concept of "nation-states" came out

of these revolutions.

90

Universal Declaration of Rights

• During World War II, numerous human rights atrocities were committed.• In 1945, shortly after the war ended, the

United Nations (UN) was formed.• UN Commission on Human Rights

produced a list of human rights and freedoms for all people in the Universal Declaration of Human Rights (UDHR).

90

UDHR - Excerpts

Some of the rights in the Universal Declaration of Human Rights:– All human beings are born free and equal in

dignity and rights.– Everyone has the right to life, liberty, and

security of the person.– No one shall be subjected to arbitrary arrest,

detention, or exile.– Everyone has the right to freedom of thought,

conscience, and religion.– Everyone has the right to freedom of opinion

and expression.

90

Canadian Bill of Rights

• In 1960, Prime Minister John Diefenbaker's government passed the Canadian Bill of Rights.• Similar to the UDHR, the Bill of Rights

codified many civil rights and freedoms that had been established over many years under common law in Canada.• For the first time, Canadians had a list of

rights and freedoms to refer to.

90

Bill of Rights - Excerpts

Some of the rights in the Bill of Rights:– Freedom of religion, speech, assembly and

association, and the press.– The right not to be arbitrarily detained, imprisoned, or

exiled.– The right not to receive cruel and unusual treatment or

punishment.– The right to be informed promptly of the reason for

arrest.– The right to be presumed innocent until proven guilty.– The right to a fair hearing.– The right to equality before the law and its protection.

90

Constitutional Protection

• Bill of Rights had two main limitations:1. It only applied to federal matters.2. It could be changed at any time by

Parliament since it was a statute.

• In 1982, Prime Minister Pierre Trudeau introduced the Canadian Charter of Rights and Freedoms into the Constitution.

• Because the Charter was a part of our constitution, it applied to every level of government and could only be changed if an amending formula was followed.

90

Canada's Constitution - History• Canada become an independent country from

Britain on July 1, 1867.• Our first constitution was the British North

America (BNA) Act, 1867.• Britain still controlled our foreign affairs and we

needed their permission to change the constitution. • The Statute of Westminster, 1931, gave Canada

control of its own foreign affairs.• In 1982, Trudeau and the premiers (except for

Quebec) "patriated" the constitution and introduced the Charter. This gave Canada complete control of our affairs as a nation.

90

Division of Powers

• The Constitution Act, 1867, explains the specific powers that our levels of government have as well as what they are responsible for.• Our levels of government are federal,

provincial, and municipal (which falls under provincial in the constitution).• Sections 91 and 92 of the Constitution

Act provide each level of government with jurisdiction - power and authority to make laws and pass regulations.

90

Section 91 – Federal Powers

• Peace, order, and good government• Criminal law• Unemployment insurance• Banking, currency, and coinage• Federal penitentiaries• Marriage and divorce• Postal services• Aboriginal peoples and lands

90

Section 92 – Provincial Powers

• Property and civil rights• Marriage ceremonies• Police forces and provincial courts• Highways and roads• Provincial jails• Hospitals

90

Federal Laws

• Federal bills, or laws, are passed by Parliament, which consists of 3 parts:

1. House of Commons

2. Senate

3. Governor General (Queen's representative)

– Each Member of Parliament (MP) is elected to represent 1 of 308 ridings or electoral districts in Canada.

– The political party that wins the most seats forms the government and passes laws.

90

Federal Branches

• There are 3 federal branches of government that pass laws, interpret them, and ensure they are carried out:

1. Executive • Governor General• Prime Minister• Cabinet• Civil Service

2. Legislative • House of Commons• Senate

3. Judiciary• Judges

90

How a Bill Becomes Law

• Overview of how a bill is passed into law:– First Reading

• Bill is introduced

– Second Reading• Bill is debated in House of Commons

– Committee Stage• Bill is studied, revised, or changed

– Third Reading• Further debate on the amended bill• Vote in the House of Commons

– Senate (similar process: 3 readings, vote)

– Royal Assent (governor general signs bill into law)

90

Provincial & Municipal Laws

Provincial• The process to pass provincial laws is similar to

federal laws.– Differences: no Senate; Queen's

representative at the provincial level is the lieutenant-governor who signs bills into law.

Municipal• Municipal laws are called bylaws.• Elected councils (mayor and city councillors)

debate and vote on bylaws. If the vote passes, the bylaw is enacted.