Transcript Canadian Legal Heritage - Clarington Central Secondary School

Canadian Legal
Heritage
Jurisprudence
The term jurisprudence means,
literally and traditionally,
practical wisdom about law.
It is the intellectual capacity to
frame and apply laws according
to sound theoretical principles.
It is also used to refer to
abstract legal
philosophy
This includes:
 Legal rules
 Norms
 Legal systems
 Institutions
It includes topics of :
 legal reasoning
 decision making
 legal validity
 legal rights
 legal interpretation
There are 3 major approaches to these topics:
1.
2.
3.
Legal Positivism
Natural Law
Legal Realism.
Legal Positivism
Legal positivism focuses solely on recorded or
documented problems.
It rejects issues of moral or political content of
law as part of jurisprudence.
It is the written law
Natural Law Theory
Law
Morality
God
According to Natural Law Jurisprudence
All written laws must be
made to conform
with universal principles of:



Morality
Religion
Justice
A law that is not fair and just
may not rightly be called "law."
ABORTION
ABORTION
ABORTION
Legal Realism
Legal realism can be exemplified by:
 critical legal studies
 feminist legal theory
 socialist legal theory
It concentrates on the empirical realities of:
 Law Making
 Legal Application
 Law Enforcement
Example: How the law supposedly serves certain
races, genders and class interests rather than
others.
Province
Aboriginal People
Percentage
of General
Population
Aboriginal People as
Percentage of Prison
Population
Level of
Overrepresentation
(col. 3/col. 2)
Atlantic
1.3
6
4.6
Quebec
1
1
1
Ontario
1.4
8
5.7
Manitoba
10.6
55
5.2
Saskatchewan
10.5
72
6.9
Alberta
4.9
36
7.3
BC
3.6
17
4.7
Yukon
18.2
67
3.7
Jurisprudence is also used to refer to the general:
 Legal
 Moral
 Political
 Economic
Policies and principles
embodied in a body
of law or a body of
legal decisions.
Example: PMs Omnibus Crime Bill
Primary Sources of Law
Customs and Conventions:
These are unwritten rules
followed primarily for
reasons of traditions rather
than laws which provide
the details of how a
government operates.
Note: These are not laws but they are part of the legal system
Example: The Prime Minister gets representation
from across Canada for his/her cabinet
positions
Religion
The courts have people swear on the bible.
The national anthem “God keep our land”
The preamble to the Constitution refers to “the
supremacy of god”
Question: Should the reference to God be taken
out of the national
Officialanthem?
Version 1980
1906
" O Canada! Our fathers' land of old
Thy brow is crown'd with leaves of red and gold.
Beneath the shade of the Holy Cross
Thy children own their birth
No stains thy glorious annals gloss
Since valour shield thy hearth.
Almighty God! On thee we call
Defend our rights, forfend this nation's thrall,
Defend our rights, forfend this nation's thrall."
1908
" O Canada! in praise of thee we sing;
From echoing hills our anthems proudly ring.
With fertile plains and mountains grand
With lakes and rivers clear,
Eternal beauty, thos dost stand
Throughout the changing year.
Lord God of Hosts! We now implore
Bless our dear land this day and evermore,
Bless our dear land this day and evermore."
1908
" O Canada, our heritage, our love
Thy worth we praise all other lands above.
From sea to see throughout their length
From Pole to borderland,
At Britain's side, whate'er betide
Unflinchingly we'll stand
With hearts we sing, "God save the King",
Guide then one Empire wide, do we
implore,
And prosper Canada from shore to shore."
1927
O Canada! Our home and native land.
True patriot love in all thy sons command.
With glowing hearts we see thee rise,
The True North strong and free!
And stand on guard, O Canada,
We stand on guard for thee.
O Canada, glorious and free,
We stand on guard, we stand on guard for thee.
O Canada, we stand on guard for thee!
How about…
"O Canada! Our home and native land!
True patriot love in all thy hearts command.
With glowing hearts we see thee rise,
The True North, strong and free!
From far and wide, O Canada,
With Rights and Liberty.
Let’s keep our land glorious and free !
O Canada, we stand on guard for thee.
O Canada, we stand on guard for thee."
Social/Political Influences
The law and lawmakers
take into account the
changing beliefs of
society. The law evolves
along with Canadian
culture.
Landmark Case
R. v. Lavallee
Significant Changes in the Law for Women
2005 Man acquitted of sexual assault with sexomnia defence
1994 Supreme Court (Daviault) rules that extreme drunkenness can be used as a defence in sexual assault cases
1993 Anti-stalking law added to Criminal Code
1990 Lavallee case establishes battered woman syndrome defense
1988 Supreme Court strikes down abortion law
1986 Family Law Act gives women more rights to property and support after divorce
1985 Indian Act repealed to restore the status of Aboriginal women who married non-Aboriginal men
1983 Rape replaced by sexual assault
1982 Sexual equality included in Charter
1978 Leary Rule – Self-Induced intoxication is not a defence
1968 Royal Commission on Status of women
1958 Pay Equity Act
1929 Recognized as persons
1918 Women get the vote
R. v. Leary, [1978] 1 S.C.R. 29 (Leary Rule)
A person may still be held liable as the act of
inducing intoxication (self-intoxication) can be
substituted for the requirement of mens rea..
The Leary rule was challenged in 1994 in the case
of R. v. Daviault where an exception to the rule
was made for an accused who was so intoxicated
he was in a state akin to automatism.
The Vastness of Jurisprudence
Example: one may speak of the jurisprudence of
Canadian tort law, meaning the underlying
principles on which Canadian tort law is based.
Example 2:
One may speak of the jurisprudence of the Supreme
Court concerning freedom of expression, meaning the
principles which underlie the series of the
Court's decisions concerning freedom of
expression.
Jurisprudence ideally is
an interdisciplinary
subject, needing the
skills of both a
lawyer and a
philosopher.