1. HISTORICAL INFLUENCES

2. GREEK LAW (400 BCE) Highlights Jury Duty
First democratic society – citizen involvement (kinda) WHY KINDA??
Major contribution: JURY DUTY!!
Enormous juries (101, 501, 6000)
Jury also voted on sentence
Best example is trial of Socrates

3. DEATH OF SOCRATES

4. ROMAN LAW (450 BCE) Highlights Twelve Tables
Basis of law for Western Europe
2 Principles: 1) law must be recorded & 2) justice could not be left to judges
Twelve Tables earliest example of codified laws
Promoted public prosecution
Victim compensation
Protection of lower class (Plebs) from higher class (Patricians)

5. LAWYERS
As Rome grew, their society obviously became more complex leading to the law being more complex
It became necessary to ask experts to advise those who did not understand the system
These legal advisors were the forerunners of present-day lawyers

6. JUSTINIAN’S CODE
Roman law became even more complex and Emperor Justinian I ( CE) decided to reform the law
This code inspired the modern concept of justice (From Justinian)
Law emphasized equity (The ideal of being fair, just, and impartial and that people are equal under the law)

7. EARLY BRITISH LAW
When the Romans left Britain (c. 410 CE) the Britons turned to God to determine guilt or innocence.
CAN YOU THINK OF ANY EXAMPLES???

9. TRIAL BY ORDEAL
Judgements were made by making the accused go through a particular “trial”
If you survived a nasty punishment it showed God was on your side
Examples: Trial by hot iron, Trial by hot water, Trial by cold water (also called swimming a witch)
Hot iron trial would have the accused bandage his hand after holding a piece of hot iron and after a few days the bandage was removed….if not infection he was innocent.
WHAT’S THE OBVIOUS PROBLEM???

10. TRIAL BY OATH HELPING
For less serious offenses, required people who knew the accused to swear on a Bible that he/she was innocent
PROBLEMS??

11. TRIAL BY COMBAT Introduced by Normans in 1066
2 parties involved engage in a duel – God will side with the innocent PROBLEMS???
Women & Children could hire individuals to fight for them
Representative of today’s adversarial system
2 sides square off with lawyers….some stronger than others
Today it’s now based on mental strength, not physical
Europe uses the inquisitorial system
Can be arrested and imprisoned before state produces evidence

12. FEUDAL SYSTEM No one is above the law….not always
When William the Conqueror defeated England, his set a standard that the King’s word was law
Divine Right to rule- Only answerable to God
William also established the Feudal system where noblemen owned and governed their lands
No consistency in cases and punishments
Henry II (William’s grandson) changed the system to what is now the most common likeness to British and Canadian Law

13. COMMON LAW
Henry II created “circuit judges” to create consistency in the law. These judges traveled the country to try cases…there was no codified law so they used their common sense
They noticed similarities in cases so they began to try similar cases in the same way. Stare Decisis: To stand by earlier decisions already made. This is where the Rule of Precedent came from
A precedent is something that has been done that can later serve as an example or rule for how other things should be done
The rule or precedent is PIVOTAL as it provides consistency to law

14. COMMON LAW CON’T
It became well known what the outcomes would be before trial. The law became “common” to all
They also recorded their decisions, which is the basis of “case” law today

15. MAGNA CARTA 1215 CE

16. MAGNA CARTA (Great Charter)
Henry II system needed codifying, especially to take away DIVINE RIGHT. In 1215 CE, angry barons forced King John (Henry’s grandson) to sign the Magna Carta
KEY POINTS
RULE OF LAW: equality before the law…king included
HABEAS CORPUS: “You must have the body.” Arrestors must bring the accused before a judge to determine the validity of their arrest within a reasonable time.
This historic right is so fundamental it is entrenched in our Charter

17. NAPOLEONIC CODE (1804 CE) Highlights Created after French Revolution
Very similar to Justinian & Roman Law
Also known as ‘Civil Code’
Non-technical style made law easy to understand (helped unify France)
Foundation of Civil Code of Quebec…precedent not as important, more judges discretion & scholarship

18. CUSTOMS & CONVENTIONS
CUSTOMS – Long-established way of doing something that, over time, has acquired the force of law (SOCIETAL)
Not formally a law, but a judge could recognize it as having the force of a law through established use
CONVENTIONS - A way of doing something that has been accepted for so long that it amounts to an unwritten rule (POLITICAL)
CASE: Patriation of the Canadian Constitution Pg 44 & 45

19. SOCIAL & POLITICAL PHILOSOPHY
Public reaction to events such as the Holocaust & US civil rights in the 60s leads to changes in the law
POLITICAL
Extreme groups – CCF during 30’s, Bloc for separatism
Everyday politics – Conservative vs. Liberal ways of thinking

20. Secondary Sources of Law

21. SECONDARY SOURCES
SECONDARY SOURCES OF LAW – Current laws that enshrine a society’s values in written rules & regulations that have been made by legislators & judges
(See Next Slide)

22. (Ex: Canadian Charter of Rights and Freedoms)
CONSTITUTIONAL LAW
(Ex: Canadian Charter of Rights and Freedoms)
STATUTES OR ACTS
(Ex: Criminal Code)
CASE OR COMMON LAW
(Ex: R. v. Big M. Drug Mart)

23. Secondary Sources
Laws and reported cases that have been written down by various types of law makers
Enshrine society’s values, beliefs, and principles in written laws and regulations
Lawmakers in Canada consist of two types of people:
Elected officials: MPs, MPPs, MLAs, MNAs
Judges who render legal; decisions

24. The Constitution
Statute must be revised if in conflict with what the constitution says
The constitution includes the Charter of Rights and Freedoms
Statute law takes precedence over judicial decisions except when the statute is unconstitutional

25. “a Constitution similar in Principle to that of the United Kingdom”
The Canada Act 1982
Outlines the distribution of government powers and sets out certain legal principles
It is actually a collection of documents, the first being the BNA Act 1867
“a Constitution similar in Principle to that of the United Kingdom”
Judicial Independence: Judges act independently
Parliamentary Supremacy: representative body of the Canadian people has the supreme power to make laws in Canada
Wait…read those two again…

26. Statute Law Any law passed by the federal or provincial government
Royal Assent after three readings
Legislative authority in various areas was divided between the federal and provincial governments by the 1867 BNA Act
Ex: Sec. 91 Federal jurisdiction over defence and criminal law
Sec. 92 Provincial jurisdiction over hospitals, property rights and education
Therefore two more principles must be abided by:
Ultra Vires- outside of a governments’ powers
Intra Vires- inside of a governments’ powers

27. The federal government enacts a law that stipulates within every provincial education system there must be a course in senior grades to learn basic economics

28. Interpretation
Judges often have to interpret laws through cases that are referred to them
They are not passing laws simply trying to interpret the meaning behind a law
Therefore any of the new assisted suicide laws will likely have to be interpreted through various cases that will inevitably occur.

29. Case Law
Judges render a written decision or explanation of their ruling
R. v. Lavallee- no law was created but a case created a law through the decision of the SCC- battered woman syndrome must be included as a form of defence
To prepare a court case lawyers and judges will look back to all recoded cases that are relevant to the case in front of them
Stare Decisis- precedent must be considered

30. Case Law Organized through citations
Starson v. Swayze (2003) 225 DLR (4th) 385 (SCC)
R. v. Tessling ( ) ONCA C36111