Law 30Law 30

Unit 1 NotesUnit 1 Notes

The Need for LawThe Need for Law As humans developed communities, the need for organized and As humans developed communities, the need for organized and

predictable behaviour to guide relationships between individuals predictable behaviour to guide relationships between individuals became important. Behavioural norms were based upon local became important. Behavioural norms were based upon local customs and spiritual beliefs, enforced through the power of customs and spiritual beliefs, enforced through the power of individuals or groups. individuals or groups.

These rules were usually common sense, and transmitted by word These rules were usually common sense, and transmitted by word of mouth. of mouth.

The complexity of societies resulted in the need for more formal The complexity of societies resulted in the need for more formal behavioural norms, or laws. behavioural norms, or laws.

Inconsistent application of law was common. Decisions about the Inconsistent application of law was common. Decisions about the laws made in one particular community would often contradict laws made in one particular community would often contradict decisions in another community, even when circumstances were decisions in another community, even when circumstances were similar. similar.

In England, this led to the development of the common law. This In England, this led to the development of the common law. This system of recording cases and examining precedent significantly system of recording cases and examining precedent significantly improved the application of law and administration of justice, and improved the application of law and administration of justice, and continues to be an important facet of the Canadian justice system continues to be an important facet of the Canadian justice system today. The quest for consistency and fairness in application of the today. The quest for consistency and fairness in application of the law continues as a significant issue for individuals, institutions and law continues as a significant issue for individuals, institutions and societies.societies.

The Rule of LawThe Rule of Law

It means that everyone is subject to It means that everyone is subject to the law; that no one, no matter how the law; that no one, no matter how important or powerful, is above the important or powerful, is above the law.law.

Why was it created? What purpose Why was it created? What purpose does it serve?does it serve?

Hammurabi & Codified LawHammurabi & Codified Law

Among the earliest recorded Among the earliest recorded attempts to achieve consistency and attempts to achieve consistency and fairness in the law was that of fairness in the law was that of Babylonian King Hammurabi, who Babylonian King Hammurabi, who recorded nearly 300 laws for his recorded nearly 300 laws for his subjects. subjects.

It was based in the concept of It was based in the concept of retribution, mandating "an eye for an retribution, mandating "an eye for an eye" as the philosophy of eye" as the philosophy of punishment for breaking a law.punishment for breaking a law.

Hammurabi & Codified LawHammurabi & Codified Law Hammurabi feared God, and he wanted to bring about the rule Hammurabi feared God, and he wanted to bring about the rule

ofofrighteousness in the land, to destroy the wicked and the evil-righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm thedoers; so that the strong should not harm theweak weak

He felt that the only way to accomplish this was to write the He felt that the only way to accomplish this was to write the law down, so that everyone in the society would know and law down, so that everyone in the society would know and understand the consequences for actions.understand the consequences for actions.

While people were divided in classes and the laws were While people were divided in classes and the laws were different for each class, he did ensure that everyone in the different for each class, he did ensure that everyone in the society knew what the laws were and this brought order and society knew what the laws were and this brought order and safety to the public from the tyranny of the strong.safety to the public from the tyranny of the strong.

Laws of other civilizations were not written down, and thus Laws of other civilizations were not written down, and thus could be manipulated to suite the rulers that dictated them. could be manipulated to suite the rulers that dictated them. Therefore, the laws were applied consistently, thus making Therefore, the laws were applied consistently, thus making things fair for people in society.things fair for people in society.

Hammurabi’s code signifies man’s rise above ignorance and Hammurabi’s code signifies man’s rise above ignorance and barbarism toward the peaceful and just societies still pursued barbarism toward the peaceful and just societies still pursued today today

Consistency, Fairness & PrecedentConsistency, Fairness & Precedent

Unfortunately, people can not be treated the Unfortunately, people can not be treated the same all of the time. In the world that we live in same all of the time. In the world that we live in being treated equally does not necessarily mean being treated equally does not necessarily mean equality.equality.

In the law, being consistent is the only way to In the law, being consistent is the only way to attempt to be fair. If the law is applied to people attempt to be fair. If the law is applied to people in the same way then fairness can be achieved.in the same way then fairness can be achieved.

Precedent is the standard that all people must Precedent is the standard that all people must live up to. Standards my differ based on class, live up to. Standards my differ based on class, race, gender and so on, which is where unfairness race, gender and so on, which is where unfairness comes up, but if the law is applied consistently, comes up, but if the law is applied consistently, then fairness has been achieved.then fairness has been achieved.

Sources of LawSources of Law

Among the factors serving as traditional sources of law in Among the factors serving as traditional sources of law in Canadian society are:Canadian society are:

religion religion customs and conventions customs and conventions social and political philosophy social and political philosophy history. history. Additional sources of law in the twenty - first century Additional sources of law in the twenty - first century

include:include: The ConstitutionThe Constitution, including , including The Charter of Rights and The Charter of Rights and

FreedomsFreedoms treaties treaties written statutes written statutes court decisions. court decisions.

Types of LawTypes of Law Statute LawStatute Law formal, written law established by governments.formal, written law established by governments.

Public LawPublic Law laws designed to safeguard the public interest, and those governing and regulating the interaction of laws designed to safeguard the public interest, and those governing and regulating the interaction of

government and the people, are public laws. This includes criminal law, administrative law, constitutional law government and the people, are public laws. This includes criminal law, administrative law, constitutional law and public international law.and public international law.

Private LawPrivate Law people’s private relationships and individual concerns. This includes family law, personal injury claims and people’s private relationships and individual concerns. This includes family law, personal injury claims and

contract law.contract law.

Civil LawCivil Law relationships between individuals, and law concerned with individual, private concerns is known as civil law. relationships between individuals, and law concerned with individual, private concerns is known as civil law.

Civil law is categorized as private law, and is focused upon seeking remedies from the court.Civil law is categorized as private law, and is focused upon seeking remedies from the court.

Criminal LawCriminal Law laws that are made as deterrents to actions which would be harmful not only to individuals, but also to the laws that are made as deterrents to actions which would be harmful not only to individuals, but also to the

community as a whole. Criminal law is public law, and focuses upon societal protection, rehabilitation and community as a whole. Criminal law is public law, and focuses upon societal protection, rehabilitation and punishment.punishment.

Substantive LawSubstantive Law defines the rights and obligations of the citizens and the state. It clearly identifies the substance of a law by defines the rights and obligations of the citizens and the state. It clearly identifies the substance of a law by

describing an offence, and identifying the facts that must be proven in establishing that an offence has been describing an offence, and identifying the facts that must be proven in establishing that an offence has been committed.committed.

Procedural LawProcedural Law defines the methods of enforcing rights and obligations of citizens and the state. It is designed to ensure defines the methods of enforcing rights and obligations of citizens and the state. It is designed to ensure

fairness of process in the legal system by defining the steps in a legal action.fairness of process in the legal system by defining the steps in a legal action.

Making LawsMaking Laws

Law making in Canada is undertaken Law making in Canada is undertaken by any of four levels of government:by any of four levels of government:

federal parliament federal parliament provincial and territorial legislatures provincial and territorial legislatures Aboriginal councils Aboriginal councils municipal councils. municipal councils.

Law as a Cultural ConstructLaw as a Cultural Construct Each society develops and implements a system Each society develops and implements a system

of justice based upon, the values and needs of a of justice based upon, the values and needs of a society at a given time. society at a given time.

Law is a reflection of the cultural beliefs of Law is a reflection of the cultural beliefs of dominant groups within society.dominant groups within society.

The application of law is a function of the The application of law is a function of the worldview of a community in time and place.worldview of a community in time and place.

Subsequently, the approach of one cultural group Subsequently, the approach of one cultural group toward legal and justice issues may be very toward legal and justice issues may be very different from that of another. different from that of another.

In any society, something is an offence under law In any society, something is an offence under law only because the society has deemed it to be so. only because the society has deemed it to be so.

WorldviewWorldview Know that worldview is influenced by an Know that worldview is influenced by an

individual’s:individual’s: spiritual beliefs defining the meaning and purpose spiritual beliefs defining the meaning and purpose

of existence of existence economic beliefs about creating and distributing economic beliefs about creating and distributing

wealth wealth moral beliefs about people’s rights and obligations moral beliefs about people’s rights and obligations social beliefs about the organization of individuals social beliefs about the organization of individuals

into a society into a society intellectual beliefs about determining truth and intellectual beliefs about determining truth and

beauty beauty political beliefs about making and enforcing political beliefs about making and enforcing

decisions within society. decisions within society.

Traditional Aboriginal View of Traditional Aboriginal View of Justice & LawJustice & Law

a view toward community-based justice a view toward community-based justice a belief in laws developed in harmony with the a belief in laws developed in harmony with the

natural environment natural environment learning the norms of society is through modelling, learning the norms of society is through modelling,

with all members of the community serving as with all members of the community serving as teachers teachers

offenders were dealt with as a community, with a offenders were dealt with as a community, with a view to preserving the community in a healthy state view to preserving the community in a healthy state

self worth, dignity, hope and healing of offenders self worth, dignity, hope and healing of offenders and community were paramount in the and community were paramount in the administration of justice. administration of justice.

The emphasis in traditional Aboriginal cultures was The emphasis in traditional Aboriginal cultures was on restorative justice, rather than retributive justiceon restorative justice, rather than retributive justice

Restorative JusticeRestorative Justice

Centres on the need to regain Centres on the need to regain balance that was lost by the balance that was lost by the commission of a crime, to heal both commission of a crime, to heal both victims and communities, while victims and communities, while encouraging offenders to confront encouraging offenders to confront the consequences of their actions. the consequences of their actions.

Traditional Western European Traditional Western European Views of Justice & LawViews of Justice & Law

an adversarial system of courts an adversarial system of courts a punishment system for non-a punishment system for non-

compliance with law compliance with law codified law and/or common law codified law and/or common law deterrence as a goal of sentencing deterrence as a goal of sentencing

Retributive JusticeRetributive Justice

retribution is the act of taking retribution is the act of taking revenge on a criminal offender, revenge on a criminal offender, which serves as a deterrent. which serves as a deterrent.

The Living LawThe Living Law

In the twentieth century, issues In the twentieth century, issues associated with new technology, such associated with new technology, such as wireless transmission of as wireless transmission of communication signals (television and communication signals (television and radio), automobile transportation and radio), automobile transportation and air transportation, required air transportation, required development of new laws and development of new laws and regulations to guide usage. Therefore, regulations to guide usage. Therefore, the law is continually evolving.the law is continually evolving.

The Canadian Charter of Rights & The Canadian Charter of Rights & FreedomsFreedoms

fundamental guide in implementing the rule of law in fundamental guide in implementing the rule of law in Canada. The fundamental freedoms enjoyed by Canada. The fundamental freedoms enjoyed by Canadians are those that we have deemed as Canadians are those that we have deemed as important to both the liberty of the individual and the important to both the liberty of the individual and the well being of the collective societal interest. well being of the collective societal interest.

Entrenchment: Entrenchment: when an item is entrenched in the when an item is entrenched in the constitution, it is a fundamental belief of a society and constitution, it is a fundamental belief of a society and is designed to be not easily or whimsically changed.is designed to be not easily or whimsically changed.

the Charter of Rights and Freedoms provide limitations and guidelines on the relationship between governments and the citizens.

Charter rights apply to most people in Canada, with exception to the rights accorded to those over 18. example: voting rights

Human RightsHuman Rights

In Saskatchewan, it is against the law for In Saskatchewan, it is against the law for someone to discriminate against people because someone to discriminate against people because of their race, religion, color, creed, place of origin, of their race, religion, color, creed, place of origin, family status, marital status, nationality, family status, marital status, nationality, disability, ancestry, sex, age (18-64), sexual disability, ancestry, sex, age (18-64), sexual orientation or receipt of public assistance.orientation or receipt of public assistance.

It is against the law for someone to discriminate It is against the law for someone to discriminate against anyone in Saskatchewan on the basis of a against anyone in Saskatchewan on the basis of a prohibited ground in employment, education, prohibited ground in employment, education, publications, public services (e.g., restaurants, publications, public services (e.g., restaurants, stores, hotels, government services), contracts or stores, hotels, government services), contracts or housing.housing.

Human Rights DefinedHuman Rights Defined Sex means gender: Sex discrimination includes discrimination based on Sex means gender: Sex discrimination includes discrimination based on

pregnancy andpregnancy and

pregnancy-related illness, as well as sexual harassment.pregnancy-related illness, as well as sexual harassment. Age means discrimination against people between ages 18 and 64.Age means discrimination against people between ages 18 and 64. Marital status means being married, engaged, single, separated, Marital status means being married, engaged, single, separated,

divorced, widowed or living common-law.divorced, widowed or living common-law. Disability includes mental and physical disability. Physical disability is Disability includes mental and physical disability. Physical disability is

any degree of physicalany degree of physical

disability, infirmity, malformation or disfigurement caused by bodily injury, disability, infirmity, malformation or disfigurement caused by bodily injury, birth defect or illness.birth defect or illness.

Mental disability means a condition of mental retardation, a learning Mental disability means a condition of mental retardation, a learning disability or a mental disorder.disability or a mental disorder.

Family status means being in a parent-child relationship.Family status means being in a parent-child relationship. Receipt of public assistance means receiving assistance or benefits as Receipt of public assistance means receiving assistance or benefits as

defined in defined in The Saskatchewan Assistance ActThe Saskatchewan Assistance Act or or The Saskatchewan The Saskatchewan Income Plan Act.Income Plan Act.

Human RightsHuman Rights

Saskatchewan Human Rights CodeSaskatchewan Human Rights Code that that offers protections to individuals against offers protections to individuals against discrimination discrimination

Canadian Human Rights CodeCanadian Human Rights Code offers offers protection to individuals against protection to individuals against discrimination in federally regulated areas, discrimination in federally regulated areas, such as the shipping industry, the postal such as the shipping industry, the postal service, or in any associations with federal service, or in any associations with federal agencies or federally regulated sectors of agencies or federally regulated sectors of society. society.