Law: Its Purpose and History Chapter 1 Law: Its Purpose and History

What is Law? Laws are essentially a set of rules, but there are 3 main characteristics that make laws different from simple rules: Laws are a set of rules established and enforced by government. Laws are mandatory. Laws involve consequences.

Functions of Law Laws… Establish rules of conduct Provide a system of enforcement Protect rights and freedoms Protect society Resolve Disputes

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; further divided into Public and Private Law. Procedural Law: legal processes that protect and enforce our rights.

Public Law There are 3 types of public law: Criminal Law: outlines offences against society and their punishments. Constitutional Law: outlines the structure and powers of governments. Administrative Law: outlines the relationship between citizens and government agencies.

Private Law Also known as Civil Law; there are 5 types: Tort Law: a person is held responsible for damage caused to another; "tort" is Latin for "a wrong". Family Law: deals with the various relationships of family life (e.g. marriage) Contract Law: outlines requirements for legally binding agreements. Property Law: outlines relationship between individuals and property. Labour Law: outlines relationship between employers and employees.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

Constitutional Protection Bill of Rights had two main limitations: It only applied to federal matters. 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.

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.

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.

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

Section 92 – Provincial Powers Property and civil rights Marriage ceremonies Police forces and provincial courts Highways and roads Provincial jails Hospitals

Federal Laws Federal bills, or laws, are passed by Parliament, which consists of 3 parts: House of Commons Senate 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.

Federal Branches There are 3 federal branches of government that pass laws, interpret them, and ensure they are carried out: Executive Governor General Prime Minister Cabinet Civil Service Legislative House of Commons Senate Judiciary Judges

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)

Provincial & Municipal Laws 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.