Introduction to Canadian Law
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[edit] Legal Systems
Every country has its own legal system.
Many countries follow in a common legal tradition with other countries. Some populations within a country may also have their own legal traditions separate from those of the country they inhabit. The Common law and the Civil law traditions are generally thought of as the two traditions that operate in Canada. However, many aboriginal law traditions exist in various forms, and religious legal traditions, such as Islamic and Jewish law, have a great influence on the lives of many Canadians.
At the risk of over-generalization, the Common law is a system whereby judges have a large influence in making law, by referring to past judicial decisions where legislation does not provide an answer to the legal question at hand. By expanding upon and reinterpreting old decisions, judges develop the Common law, while at the same time consciously making only incremental reinterpretations, so that the law develops gradually.
The Civil law is a system whereby the legislature adopts a Code which has many general legal principles. Judges refer to these general principle to solve specific legal problems; they need not refer back to how previous judges resolved similar specific issues, or even how they themselves resolved decided similar specific issues in the past. At the same time, judges have a high regard for experts in particular fields of law, whose publications are influential on judges. It is not uncommon for a Civil Code to last one or more centuries before a major reform.
[edit] The Hierarchy of Authority/ Sources of Law
In Canada, this is the generally-recognized hierarchy of authority:
- The Constitution
- Human rights legislation
- Other legislation
- Regulations
- Caselaw from higher courts
- Other caselaw
- Treaties/ International law
- Doctrine
In the Quebec tradition, the hierarchy looks more like the following:
- The Constitution
- Human rights legislation
- The Civil Code
- Other legislation
- Regulations
- Doctrine
- Caselaw from higher courts
- Other caselaw
- Treaties/ International law
Generally, a judge will give more weight to the top of the hierarchy.
[edit] Useful Basic Concepts
Law: This concept has many different meanings. The average person thinks of law as "legislation", i.e., the written document approved by a legislature describing what may or may not be done legally. However, lawyers tend to use the word "law" in a broader context: the ensemble of the constitution, legislation, regulations, judicial decisions, agreements, and any number of other types of enforced rules that have an official status.
Statute: This is what most people call a "law": a written document, passed according to the rules of a legislature, which the government is to enforce. Also called an Enactment, an Act, legislation. It usually deals with a specific topic, which will be used in identifying and distinguishing it from other statutes i.e. the Immigration Act or the Income Tax Act.
[edit] History of Canadian common law
[edit] History of Quebec civil law
[edit] Legal Theory
[edit] Natural law
[edit] Positivism
This is really what you would think seeing that word. The idea here is that law is a "posited" thing. In other words: law is law because it has been made in a certain way. Nothing else is law. As long as people agree on the way law is made, it is easy to know what is law and what is not. Furthermore, nothing else is valid law, so morals or any of the other fuzzy stuff doesn't come into play. Of course you will wonder how this idea of "positive law" can deal with issues that are somewhat "sticky", such as a law that dictates to kill all blue eyed babies. Well it can't and that's the main drawback of this by itself simple concept.
