• Law as a "Quantitative Variable" whose magnitude varies from one social context to another
• Small homogenoeus society= informal law
• Large heterogeneous society= formal law
• In small societies there is more incentive to get along
• in larger society people no longer share the same value system, and may therefore disagree on rules and values that are set in place

• 1. Explicit rules of conduct -> may be unwritten
• 2. Planned use of sanctions to back up the rules -> sanctions are well known and characterized by " certainty(person commiting crime must be certain of consequences)
• 3. Designated officials to create, interpret, and enforce the rules

• 1. Explicit rules of conduct-> written down and codified
• 2. Planned use of sanctions to back up the rules-> sanctions characterized by "certainty(persons do not always get caught), celerity( criminal trials often take years), and severity( for the most part we punish people more severly for money crimes than crimes against the person)"
• 3. Designated officials to create, interpret and enforce the rules 

• the Four Functions of Law:
• Definition of relationships among members of society
• Allocation of authority and the right to exercise physical coercion as a socially recognized privilege right ( 3 factors)
• Disposition of trouble cases as they arise
• Adapt to change in social life and redifibe relationships accordingly

• dysfunctions stem in part from the laws conservative tendencies, the rigidity inherent in its formal structure, restrictive aspects connected with its control function, and certain kinds of discriminations are inherent in the law itself
• 1. Inequality
• 2.Racism

• 1. Social Control->regulate relationships on society
• 2.Dispute Resolution

•  the type of society and culture influence the types of laws that are put into place

• Civil Code is the foundation and the primary organizing source of law
• Cases decided by reference to letter and spirit of law
• Judges are free to disregard precedent
• Legal scholarship is key

British Culture: Common Law

• Law resides in cases (precedent)
• Cases decided largely by reference to precedent 
• Cannot disregard precedent must "distinguish"
• Cases are key!
• Look at similar cases previously decided to make decisions
• Courts determine not only law but also policy

•  Robinson sues CPR for compensation for the death of her husband. If they granted compensation they were afraid that they were making the decision based on geography not law(lived in Quebec), no right for compensation anywhere but Quebec.Denied request, people were angry in Quebec, no consideration if anything better could be done

• the Supreme Court made a decision based on civil law principles becausethe common law precedence that may have been relevent to the case were not appropriate in the context

• article focused on Quebec language laws
• Resolution of conflicts over rights often a balancing act
• Best outcome: compromise which achieves minimal infringement of all parties' rights

• created Canada, now known as the Constituition Act, brought together all provinces under federal government, Great Britain maintained control

• source of governments right to exercise authority over its citizens
• what the act did and did not do-> did not impose a consistent common law system, the law that was established before confederation would remain the law in each respective province

• established that British Policy decisions could only affect Canada if Canada gave consent to do so, freed Canada from unwanted intrusions from Great Britain

• simultaneous passing of the Canada Act in Canada and in London
• Canada gained control over its constituiton 
• gained a written Charter of Rights and Freedoms

• Parliament as a supreme law maker(but not after 1982)
• Elect people into parliament thereby giving them the power to make decisions, which ideally reflect public interest, good of the country
• Nobody other than parliament has ever historically been permitted to make laws
• Democracy is the core idea behind parliamentary supremacy

• Mechanisms through which the sovereign will of the people is expressed
• The nature of democracy is such that the ideas that best reflect the ideas of the majority are the ideas that should run the country 
• The parliament should come up with a compromise decision when making laws; between what the majority wants and what the minority has the right to expect
• Democracy should not only address the needs of the majority but also accommodate the needs and wants of those not in majority rule

• Principle that all persons are bound to the laws of Canada and musy respect those laws
• Core principle of the legal system of Canada
• When the majority is unhappy a revolution/downfall of government is likely

• Any law that is inconsistent with the provisions of the Constitution is to the extent of that inconsistency of no force or effect

• Parliament has the power to make laws and all the people are subject to the will of Parliament

• Roncarelli was a wealthy restaurant owner and Jehovah's Witness
• used his wealth to bail out other Jehovah's witnesses who displayed their religion by handing out pamphlets and got arrested
• in an effor to stop Roncarelli the Quebec premier(Duplessis) met with the liquor commission and directed them to pull Roncarelli's liquor license 
• Roncarelli sued Duplessis for abusing the position of his office,Supreme Court agreed
• Duplessis had abused the powers of his office by overtaking another officals power, and using that to access a power which was not appropriatley the premiers to exercise

• Judges must be free to make decisions free from political interference or government reprisals
• Judges historically have generally supported the laws that parliament make
• with the repatriation of the constituiton the Supreme Court began to step back, and now the Supreme Court makes decisions based on what it views are the appropriate legal questions and outcomes

• S.91: Federal power over "Peace, Order, and Good Government"
• S.92: Provincial powers- especially s.92(13): "Property, civil rights in the province"

• Property v. crime control
• Federal government asked Supreme Court to decide if the licensing and regulation of firearms and firearm ownership was a matter relevant to the criminal law and crime control (federal responsibility)or whether it was a matter of regulating property(provincial responsiblility)
• Court said that the federal government must meet 3 criteria in order to argue that is is in their jurisdiction
• The criteria were: purpose(measure had to have a valid criminal law purpose), prohibition( requires a license to bear a firearm), and penalty(whether the prohibition was backed by penalty)
• Gun control is under federal jurisdiction

• S.2 "fundamental freedoms"-> freedom of expression, freedom of speech, freedom of the press, freedom of assembly
• Ss. 7-14 "legal rights"-> right to life, liberty, and the security of the person, right to be free from unreasonable search and seizure, right against being arbitrarily detained
• S.15 "equality rights"-> right to equality before and equal protection of the law

• S.33 "notwithstanding clause"-> states that any government may pass a piece of legislation which overrides your fundamental rights and freedoms as long as they insert in that legislation the statement (that the legislation will operate notwithstanding the rights or freedoms articulated in section....)
• S.1 test-> as long as the court believes that the violation or infringement of your rights is one that is demonstrably justifiable in a free and democratic society then your rights can be violated

T.H Marshall, Citizenship and Social Class

• Key concepts: " rights as citizenship" and "passive citizenship"
• the only way to obtain a basic healthy society is to give people a basic level of civil, political, and social rights notwithstanding what they actually do in and for society
• a full expression of rights requires a liberal democratic welfare state which can guarantee civil, political and social rights to its membership 

• 1. Civil- rights necessary for individual freedom
• 2. Political- rights necessary for political action
• 3. Social- rights necessary for general welfare 

• the degree to which you can achieve true equality through social welfare will depend on four factors:
• Who gets it?
• How it's given?
• How much it is?
• How it's paid for?

• Passive citizenship, rights and obligations
• Social welfare tied to obligations
• Argued that passive citizenship was inconsistent with the demands of freedom and justice
• Argued that true equality is contingent on true engagement with the obligations of society; welfare and the welfare state discourage people from being self-reliant 

• Full citizenship requires social rights
• Citizenship involves both rights and responsibilities
• While citizenship does involve responsibilities it also involves rights, you can't give people nothing and expect them to meet their responsibilities

• Citizenship as "social glue"
• Citizenship should carry an equality of social, political, and civil rights for everyone
• Citizenship and Identity-> uniting different communities under one citizenship

• it should be possible for people to participate in larger citizenship without giving up their unique cultural, social heritage or position. 
• Differentiated Citizenship: where members of certain groups are incorporated into political community, not only as individuals but also through their group. Their right in part depends on the group membership

• Three Issues:
• The origin of the Charter; where did the Charter come from, why do we have a Charter
• Limitations in judicial support of human rights; job is to protect people from government not the other way around
• Why make judiciary caretakers of our rights
• Judges are appointed based on their stance with the government currently in power

• Essentially handed down the right of access for all American women to legal and safe abortion
• Gave women the right to choose
• 5 years later the U.S courts handed down the Hyde amendment: government cannot pass laws or create regulations that deliberatley interfere with the rights of women to choose to have abortions, but they also said that if an obstacle to a woman's right to choose is not something created/responsibility of the government, then the government doesn't have to do anything
• this included poverty
• problem because women who could not afford it could not choose

• 1. Enforceablilty of judicial review-> courts will make decisions but somebody has to take responsibility for actually implementing them(usually government)
• 2. Forum of judicial review-> when you go to court, your problem will have to translated into a set of legal issues, legal facts are usually not the most relevant to the person
• 3. Democracy of judicial reviews-> quality lawyers, amount of money put into a court case, get to state your case, be heard, challenge is that you may not win your case

• Roman influence-> Twelve Tables(1450 BC: document that contained an authoritative statement of rules that would guide decision making of legal cases; democratized Roman law), Justinian Code(clear set of legal principles; 6th century) and the Coutumes
• Quebec-> 1866 Civil Code(largely based on Napoleon Code) and today(continues to influence Quebec laws; private law matters are quite distinct from those in other provinces)

• Norman Invasion(led to the unification of the prior legal jurisdictions of England to one large jurisdiction) and changes to English courts
• Shires, Manorial courts, Ecclesiastic courts

• King's Peace->state assumes prosecutorial right
• Juries->judgement by jury of your peers
• Stare Decisis-> "Stand by the decided case"

• Subsidiary Sources: General and specific customs, Books of Authority
• Principal Sources: Legislation, Precedent
• Legislation: the bones of the law, two levels of legislation in Canada(federal and provincial)
• Precedent: cases previously decided those decisions binding on lower courts and subsequent decisions, precedent states this is how it is and this is why it is

• 2 components:
• 1. Ratio dicendi-> "decided reasons"
• 2. Obiter dicta-> "statements made in passing"

• Atiyah:Degrees of Authority, distinguishing cases; the higher the court the greater the deciding power
• Morton-> value of precedent and stare decisis:
• 1. Certainty and continuity all the way through the legal system
• 2. "rule of law not rule of men"

• "double doctrine of precedent"-> precedent allows you to have your cake and eat it too
• 1.Strict view of doctrine of precedent:focused primarily on facts; precedent acts as a technique for distinguishing cases based on a deep scrutiny of their content
• 2. Loose view of doctrine of precedent:focuses almost entirely upon the language of prior decisions

• Constitution Act,1867 delineates responsibilities for courts and administration justice
• S.92(14) provincial responsibilities
• S.101 Federal Responsibility 
• S.96,99,100 Federal Authority to appoint judges

• Authority of a court to hear, adjudicate, and give decisions
• Authority derived from statutes which may define jurisdiction in different ways.Ex. geographic
• Lower level/ Inferior courts->limited jurisdiction
• Superior courts->largely unlimited jurisdiction

• Summary offences:less serious, Triable by Justice of the Peace or Provincial Judge, Information/laying of information(formal written accusation), Chargees usually result in fines, no more than 6 months in jail
• Indictable Offences: more serious, carry more severe penalties
• 3 types of indictable offences: 
• 1. S.553 offences->provincial jurisdiction, no election
• 2. S.469 offences->superior court jurisdiction,judge alone or judge and jury
• 3. Residue-> anything that is not specified in the first 2 categories, choose who you want to hear your case; provincial court judge without preliminary hearing, provincial court judge with preliminary hearing, trial by judge and jury with preliminary hearing
• Hybrid offences: may be either summary or indictable offence, crown council makes the determination whether to proceed summarily or by indictment

• hears matters arising within families
• Some YCJ offences
• Less formal and adversarial

• Ment to be "party-driven"
• Deals generally with matters of contract and tort
• Monetary jurisdiction usually under $10 000

• All S.469 offences and all indictable offences with appropriate election
• All civil within specified monetary jurisdiction
• All libel and defamation
• Appeals from Provincial Court Criminal and Family Divisions
• Divorces where there is no unified family court

• All civil and family appeals from Superior Court(Trial Division) on questions of law, fact or mixed law and fact
• All criminal appeals for superior court(trial division) on questions of law,fact, or mixed law and fact
• Questions of fact: issue involves a factual dispute and falls to the jury or judge where she is trier of fact
• Question of law: issue involves the application or interpretation of law and falls to the judge

• est.1875
• 8 Justices and 1 Chief Justice
• "Leave to appeal":
• only where matter has public significance
• in criminal matters on question of law only
• "on reference"
• Lawyer's court->clients do not appear

• Trial Division: has jurisdiction over civil matters
• Appeal Division: hears appeal from Federal Court(Trial Division), and Federal Boards(refugee board, parole board etc)

• Adversarial System
• Open Access:
• Hearings held "in camera"
• Publication bans(2 exceptions)
• Media Access-> not common
• Askov case and the right to trial within reasonable time-> waited 3 years to get to trial
• "Dignity and Decorum"-> formaility of the courts

• Laws reflect the shared normative positions of society
• Respect the right of individuals to have their own set of beliefs

• facts: ship got caught in a storm and sank, only captian Dudley, 2 sailors Brooks and Stephens, and a cabin boy named Parker survived
• no good food or water provisions
• Dudley suggested eating one person so the others could survive
• Dudley and Stephens took Parkers life, Brooks wanted nothing to do with it
• Jury determined that they had killed the cabin boy but their minds Dudley and Stephens had no other choice
• Judge decided that an act of murder cannot be qualified by the terrible circumstances of the murder nor can precedent be set that such temptation could become and excuse for wrongful behaviour
• Dudley and Stephens ordered to be hanged; but sentenced was commuted to life in prison; later reduced to 6 months in jail

• as an excuse (Perka v. The Queen)
• Involuntary acts and the absence of choice
• Requirement of imminent peril and "demonstrably impossible compliance"-> was there a legal way out?
• Legal option= choice= voluntariness=criminal act
• Have to show that compliance with the law was demonstrably impossible; there was no legal option; there was no choice

• Legal Moralism: law can be legitimately used to reinforce society's " collective moral judgements"
• Society will disintegrate without a fundamental view on good and evil
• One of the roles of government is to determine what the moral code should be

• For Mill, only "to prevent harm to others" not to preventharm to yourself
• Harm=physical or more extreme psychologocal harm
• The freedom of the individual was to be preserved to as great a degree as possible
• The importance of the possibility of fallibility
• Not everything that harms the individual may harm other individuals; cannot try to impose personal beliefs on others through the law

• Community tolerance-> court had to come to a decision as to what a community will tolerate in regards to obscenity
• The national community-> not concerened if something offends in its portrayal of certain acts or whether those acts will cause harm to individuals in society, we are concerned about regulating exposure to that material as a whole

• Methods used to maintain order and promote predictability of behaviour
• Two Basic Processes of Social Control:
• Internalization of group norms
• External behavioural controls(ex.laws)
• Specific and general deterrence
• The more heterogeneous the society the mire external controls are needed

• to define those acts which may be deemed to be threats to the established order of things, and to apprehend and punish those who knowingly engage in those acts
• Legalization: the process by which norms are moved from the social to the legal realm 
• Why do some norms become law, and others not? When behaviour is harmful to society, when activities are morally problematic, intolerance to certain behaviour

• Deterrence-> don't want people to do certain things
• Denunciation-> stating clearlt to the individual "what you did is an action that is not cceptable in our society"
• Incapacitation-> isolate those who break the law, ideally limits their ability to victimize others
• Rehabilitation?-> learning trades, anger management programs etc.

• Mala en se(evil in themselves, ex. Infanticide), mala prohibitum(evil because we made a decision to prohibit them, ex. prostitution)
• Against the person, against propert
• Summary, indictable, hybrid

• Mens Rea: intended to do what you did, choice to do something wrong, accused knew or could at least appreciate the wrongfullness of what she/he chose to do
• Actus Reus:actually did what you intended to do
• 3 components of actus reus:
• 1. Conduct: voluntary act or object constituting the central feature of the crime
• 2. Circumstances: surrounding and material circumstances
• 3. Consequences of the voluntary act of conduct

• Negate Actus Reus-> "I didn't do it!"
• Negate Mens Rea-> "I didn't mean to do it!"

• Insanity
• A child-> under 12
• Mistaken about some material fact
• Unaware of the conssequences of her actions
• Subject to duress
• Acting out of neccessity

• Acts: perjury, Possession of house breaking tools
• Omission: only where there is a pre-existing legal duty to act

• 2 ascpects of law important to capitalism:
• 1. Its relative degree of calculability: degree to which law created an atmosphere in which individuals can make confident decisions about whether or to whom to sell their labour
• 2. Its capacity to develop substantive regulations, especially those related to freedom of contract: Law defines the "rules of the game"

• Capitalism requires a particular set of legal structures
• Balance in the system through"conflict of egoistic wills" and interdependence
• Symbiosis of Capitalism and modern, rational legal system

• Control of Social Actions can be achieved in 2 ways:
• 1. Internally-> internalize norms of proper behaviour which encourage unconscious fulfillment of social expecations
• 2. Externally-> in market-based societies, especially in law and legal coercion

• 1. Coercion is necessary because of the nature of the driving force behind the market system(self-interest)
• 2. Legal coercion is necessary to predictability-> Market system premised on interdependence defined by contract, essence of contract of compulsion
• Legalism constrains the marketplace and the state!

• Plantiffs Sought not to be bound by terms of the member agreement between MSN and its customers-> agree on one term, agree on all term!

• Defendants argued that they owed no duty of care to the plaintiff consumer to ensure objects purchased are safe-> consumer of products is "neighbour" to whom a duty is owed

• an examination if the role and purpose of contracts in business relationships
• Contracts as a "silent partner"-> always there in the background keeping the relationship organized

• Commitments are to be honored in all situations: don't "welch" on a deal
• Make a good product and stand behind it

• Business relationships are crucial to survival
• Intersection of personal relationships-> relationships help you move up
• Importance of preserving good relations to continuing the business relationship-> people will more likely do business with you, if you are in a good relationship with them

• Deterioration of the business relationship and "business divorce"
• Going to court is expensive
• Legal fees are only one part of the expense of going to court-> time spent, paying employees when they go testify, loss of productivity
• Outcome may provide vindication but little compensation

• 1.Contracts are a communication device-> spell out very clerly the roles and obligations of each party
• 2. Where a business relationship is risky, contracts are worthwhile-> good thread of last resort
• 3. Contracts carry the potential for litigation, and thus assist in governing the relationship

• "Private ordering": the process of negotiation of divorce in the private reather than the public realm of the courts
• But private ordering involves social interests and can have social consequences
• "No fault" divorce and the withdrawal of the courts

• Uncertainty about what circumstances warrant overturning or amending parental decisions
• Inability to control parental behaviour once parties leave courtroom
• Reluctant to overturn decisions made by parents on the asumption that parents will do what is best for their children
• Less likely to rubber stamp when children are involved

• Heat up the Process
• Too adversarial
• Expensive

• Rationalize negotiations
• Minimize disputes and facilitate out of court bargaining
• Ensure outcomes reflect legal norms

• Ceremonial Function-> it is a ritual that going to court to get a divorce is part of a moral play in which you move from one place in life to another place in life
• Fairness in Outcome-> the rules create a social situation that is manageable and functional
• Judicial Review may improve private ordering->the courts are the ever present threat, sort it out or go to court
• Child protection->the state has a vested interest in ensuring that the arrangements made for children are healthy, positive and sustainable