Transcript Document
Part 1 – Introduction to the Law Chapter 1 – The Law and the Legal System Prepared by Robert Malach, University of Calgary 1-1 Chapter 1 – The Law and the Legal System Learning the Law The Legal Environment of Business The Nature of Law Rights versus Privileges The Role of Law Development of Law Sources of Law Constitution and the Charter of Rights Classification of Laws © 2009 McGraw-Hill Ryerson Limited 1-2 Learning the Law Business Law is important to Business Persons A knowledge of legal issues is essential to the making of proper risk management decisions Learning the history of law helps us to better understand the law in its present day context We need to understand the types of basic legal issues that affect business planning/operations We also need to be aware of developments in law that may impact our specific type of business © 2009 McGraw-Hill Ryerson Limited 1-3 Legal Environment of Business Business law Divided into a number of general areas Tort law – injuries to another's person, property or reputation Contract law – day-to-day operations of a business Business Organizations – Partnership, sole proprietorship, corporation Land Law Intellectual Property Environmental Law © 2009 McGraw-Hill Ryerson Limited 1-4 Nature of Law Reflects the society we live in Historical influences Definitions A set of rules that enable people to live together and respect each others rights Rules of civil conduct © 2009 McGraw-Hill Ryerson Limited 1-5 Rights versus Privileges Distinguish between a right and a privilege Right – are things we can do with impunity Others have a duty not to interfere with our rights i.e. Freedom of Speech Privilege – We earn a privilege under certain circumstances and if improperly exercised it can be taken away by the State i.e. Driver’s Licence Rights can become privileges Due to social pressure or the state’s desire for funds © 2009 McGraw-Hill Ryerson Limited 1-6 Role of Law Law – body of rules of conduct that are obligatory Sanctions imposed if a rule is violated Social Control – using laws to shape society © 2009 McGraw-Hill Ryerson Limited 1-7 Role of Law Three Functions of the Law 1. 2. 3. Settling Disputes Establishment of Rules – to bring order and minimize conflict Protection – of one’s self, possessions, ideas. © 2006 McGraw-Hill Ryerson Limited 1-8 Development of the Law Within the Family and within the Tribe word of mouth from generation to generation Early form of precedent Within the City-State Formation of governments to deal with disputes Balance between common good and individual freedom Roman Empire, Western Europe, Middle East © 2006 McGraw-Hill Ryerson Limited 1-9 Common Law Customary Law Religious laws Community based Pre-Norman England Roman law followed by Germanic influence to the Norman conquest in 1066 © 2009 McGraw-Hill Ryerson Limited 1-10 Common Law – Rise of the Courts Norman England Power consolidated with the King and the King’s justices Central judiciary established under King Henry II Beginning of the precedent system of common law Written records began to be kept © 2009 McGraw-Hill Ryerson Limited 1-11 Sources of Law Common Law Law as found in the recorded judgments of the courts know as “case law” “Statutes” are laws based by a properly constituted legislative body/government Judicial interpretation and application of “statute law” creates case law © 2009 McGraw-Hill Ryerson Limited 1-12 Sources of Law Stare Decisis – Latin Phrase- “to let a decision stand” applies if decision: 1. 2. 3. From the judges own court – Persuasive Form a court of equal rank – Persuasive From a court of higher rank - Binding This is a basic Judicial Principle that Judges in lower courts must follow higher court direction when dealing with similar facts and issues © 2009 McGraw-Hill Ryerson Limited 1-13 Common Law Creates certainty and predictability Predictable yet flexible More flexible than a civil code Can adapt to social changes such as same sex marriage Requires familiarity with ongoing evolution of statute and case law © 2009 McGraw-Hill Ryerson Limited 1-14 Sources of Law Canon Law – church law Original jurisdiction over religion, family, marriage, morals, estates Influence today (Sunday shopping laws, Ecclesiastical Courts) Merchant Law Customs or rules established by merchants to resolve disputes Example today would be the sales of goods legislation © 2009 McGraw-Hill Ryerson Limited 1-15 Sources of Law Equity Rules originally based on decisions of the King rather than on the law Fairness, equality, justice Overcomes the harshness and rigidity of the common law Takes precedence over common law when equity and common law conflict Over time decisions of the King became principles of equity and eventually equity and common law merged © 2009 McGraw-Hill Ryerson Limited 1-16 Statute Law Statute Latin word “statutum” meaning “it is decided” Laws made by governments Result of legislative process Debated, voted upon and passed through a strict process established to protect democratic principles © 2009 McGraw-Hill Ryerson Limited 1-17 Statute Process –Slightly different Federally and Provincially 1. 2. 3. Bill – proposed law presented to a legislative body Motion – decision to read a bill the first time Royal Assent – granted by the Governor General or Lieutenant Governor after required readings - Required in order to become law 4. Proclaimed – when a law becomes effective Revised Statutes – updated or amended to reflect changes in society © 2009 McGraw-Hill Ryerson Limited 1-18 Quebec’s Civil Code Influence of the French Civil Code system A body of written law that sets out private rights of the citizens of the state Historical from Prussia and codified by Napoleon in the 1800’s Recent code is from 1994. © 2009 McGraw-Hill Ryerson Limited 1-19 Codification of Common Law Codification of the common law into statutes Bills of Exchange Act; Partnership Act; Sale of Goods Act Took place during late 1800’s Advantage over common law is certainty Still requires judges interpretation © 2009 McGraw-Hill Ryerson Limited 1-20 Administrative Law A body of rules governing the application of statutes to activities regulated by administrative tribunals or boards Regulations – procedural rules made under a statute Administrative Tribunals – agencies created by legislation to regulate activities or do specific things Power is delegated from Legislative body to Tribunal or Board Decisions may be subject to judicial review © 2009 McGraw-Hill Ryerson Limited 1-21 Constitutional Foundations Constitution Basis upon which a state is organized, and the powers of government defined The supreme law - Rules for making Laws 2 Major Parts Canadian Charter of Rights and Freedoms Amending Formula 1867 B.N.A. Act and 1982 Canada Act Legislative bodies that do not follow constitutional rules risk having their laws declared unenforceable or ultra vires © 2009 McGraw-Hill Ryerson Limited 1-22 Constitution Division of Powers Section 91: Federal powers Section 92: Provincial powers Governments are limited to making laws within their area of power Residual power given to the federal government; all matters not expressly given to the provinces belongs to the federal government © 2009 McGraw-Hill Ryerson Limited 1-23 Charter of Rights Sets out basic rights and freedoms of all Canadians that governments are to respect Entrenched in the Constitution – difficult to change Section 1 (Reasonable Restrictions) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. © 2009 McGraw-Hill Ryerson Limited 1-24 Charter of Rights Notwithstanding Clause (s.33) Permits the government to pass legislation that conflicts with or overrides charter rights by way of a “notwithstanding clause” Some sections of the Charter cannot be overridden Sunset clause – s.33 laws passed under this section last for a five year period, unless renewed © 2009 McGraw-Hill Ryerson Limited 1-25 Fundamental Freedoms S.2 Freedom Freedom Freedom Freedom Freedom of of of of of conscience and religion thought and expression the press peaceful assembly association © 2009 McGraw-Hill Ryerson Limited 1-26 Other Rights Mobility Permits free movement within Canada Personal Liberty Enjoy life without interference of the State Life, liberty and security of the person Right to be free from unreasonable search and seizure Free from arbitrary detention or imprisonment © 2009 McGraw-Hill Ryerson Limited 1-27 Other Rights Right to Due Process Informed of rights on arrest Right to a lawyer Only arrested for committing an offence Innocent until proven guilty Right to fair trials, reasonable bail © 2009 McGraw-Hill Ryerson Limited 1-28 Other Rights Equality Rights Every individual is equal before the law Note language of charter language: person, citizen, individual No discrimination based on race, creed, colour, religion, sex, age, national or ethnic origin or any mental or physical disability Affirmative action is allowed for disadvantaged groups © 2009 McGraw-Hill Ryerson Limited 1-29 Other Rights Language Rights 2 official languages of English and French Government (federal) to provide services in both official languages Rights of education to be made available in preferred official language © 2009 McGraw-Hill Ryerson Limited 1-30 Enforcement of Rights Apply to the courts to challenge legislation that offends Charter rights Charter only applies to governments not to private groups or individuals Private matters are dealt with through Provincial human rights legislation “Read Into” the recent trend of courts to read into the Charter words or provisions that the legislative bodies did not Reference Cases – example is the Same Sex Marriage case © 2009 McGraw-Hill Ryerson Limited 1-31 Classification of Laws Substantive Law Procedural Law An individual right enforceable at law Public Law Procedures taken to enforce a substantive law Substantive Right All laws that set out the rights and duties of individuals Relates to relationship between governments and persons Private Law Relates to relationship between individuals © 2009 McGraw-Hill Ryerson Limited 1-32 SUMMARY Law is the means by which state maintains social control Courts used as vehicle of enforcement Common law and statute law exist today Charter Rights Rule of Precedent “stare decisis” allows for judicial interpretation of laws and a hierarchy of courts S.1 rights are not absolute S.33 can be overridden with notwithstanding clause Substantive rights and law are enforced or applied through procedural law processes © 2009 McGraw-Hill Ryerson Limited 1-33