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Similar to Chapter 1 10e (20)
Chapter 1 10e
- 1. Part 1 – Introduction to the
Law
Chapter 1 – The
Law and the
Legal System
Prepared by Douglas Peterson,
University of Alberta
© 2012 McGraw-Hill Ryerson Limited 1-1
- 2. Chapter 1 –
The Law and the Legal System
Learning the Law
The Legal Environment of Business
The Nature of Law
Rights versus Privileges
The Role of Law
Development of Law
Sources of Law
Constitution and the Charter of Rights
Classification of Laws
© 2012 McGraw-Hill Ryerson Limited 1-2
- 3. Learning the Law
Business Law is important to Business Persons
A knowledge of legal issues is essential to the
making of proper risk management decisions
Learning the history of law helps us to better
understand the law in its present day context
We need to understand the types of basic legal
issues that affect business planning/operations
We also need to be aware of developments in
law that may impact our specific type of
business
© 2012 McGraw-Hill Ryerson Limited 1-3
- 4. Legal Environment of Business
Business law
Divided into a number of general areas
○ Tort law – injuries to another's person, property
or reputation
○ Contract law – day-to-day operations of a business
○ Business Organizations
Partnership, sole proprietorship, corporation
○ Land Law
○ Intellectual Property
○ Environmental Law
© 2012 McGraw-Hill Ryerson Limited 1-4
- 5. Nature of Law
Reflects the society we live in
Historical influences
Definitions
A set of rules that enable people to
live together and respect each others
rights
Rules of civil conduct
© 2012 McGraw-Hill Ryerson Limited 1-5
- 6. Rights versus Privileges
Distinguish between a right and a privilege
Right – are things we can do with impunity
Others have a duty not to interfere with our rights i.e.
Freedom of Speech
Privilege – We earn a privilege under certain
circumstances and if improperly exercised it
can be taken away by the State i.e. Driver’s
Licence
Rights can become privileges
Due to social pressure or the state’s desire for funds
© 2012 McGraw-Hill Ryerson Limited 1-6
- 7. Role of Law
Law – body of rules of conduct that are
obligatory
Sanctions imposed if a rule is violated
Social Control – using laws to shape
society
© 2012 McGraw-Hill Ryerson Limited 1-7
- 8. Role of Law
Three Functions of the Law
1. Settling Disputes
2. Establishment of Rules – to bring
order and minimize conflict
3. Protection – of one’s self,
possessions, ideas.
© 2012 McGraw-Hill Ryerson Limited 1-8
- 9. Development of the Law
Within the Family and within the Tribe
word of mouth from generation to generation
Early form of precedent
Within the City-State
Formation of governments to deal with disputes
Balance between common good and individual
freedom
Roman Empire, Western Europe, Middle East
© 2012 McGraw-Hill Ryerson Limited 1-9
- 10. Common Law
Customary Law
Religious laws
Community based
Pre-Norman England
Roman law followed by Germanic
influence to the Norman conquest in
1066
© 2012 McGraw-Hill Ryerson Limited 1-10
- 11. Common Law – Rise of the Courts
Norman England
Power consolidated with the King and the
King’s justices
Central judiciary established under King
Henry II
○ Beginning of the precedent system of
common law
○ Written records began to be kept
© 2012 McGraw-Hill Ryerson Limited 1-11
- 12. Sources of Law
Common Law
Law as found in the recorded judgments of
the courts know as “case law”
“Statutes” are laws based by a properly
constituted legislative body/government
Judicial interpretation and application of
“statute law” creates case law
© 2012 McGraw-Hill Ryerson Limited 1-12
- 13. Sources of Law
Stare Decisis – Latin Phrase- “to let a decision
stand” applies if decision:
1. From the judges own court – Persuasive
2. Form a court of equal rank – Persuasive
3. From a court of higher rank - Binding
This is a basic Judicial Principle that Judges in
lower courts must follow higher court
direction when dealing with similar facts and
issues
© 2012 McGraw-Hill Ryerson Limited 1-13
- 14. Common Law
Creates certainty and predictability
Predictable yet flexible
More flexible than a civil code
Can adapt to social changes such as
same sex marriage
Requires familiarity with ongoing
evolution of statute and case law
© 2012 McGraw-Hill Ryerson Limited 1-14
- 15. Sources of Law
Canon Law – church law
Original jurisdiction over religion, family,
marriage, morals, estates
Influence today (Sunday shopping laws,
Ecclesiastical Courts)
Merchant Law
Customs or rules established by merchants to
resolve disputes
Example today would be the sales of goods
legislation
© 2012 McGraw-Hill Ryerson Limited 1-15
- 16. Sources of Law
Equity
Rules originally based on decisions of the King
rather than on the law
Fairness, equality, justice
Overcomes the harshness and rigidity of the
common law
Takes precedence over common law when
equity and common law conflict
Over time decisions of the King became
principles of equity and eventually equity and
common law merged
© 2012 McGraw-Hill Ryerson Limited 1-16
- 17. Statute Law
Statute
Latin word “statutum” meaning “it is
decided”
Laws made by governments
Result of legislative process
Debated, voted upon and passed through
a strict process established to protect
democratic principles
© 2012 McGraw-Hill Ryerson Limited 1-17
- 18. Statute
Process –Slightly different Federally and
Provincially
1. Bill – proposed law presented to a legislative body
2. Motion – decision to read a bill the first time
3. Royal Assent – granted by the Governor General or
Lieutenant Governor after required readings
- Required in order to become law
1. Proclaimed – when a law becomes effective
Revised Statutes – updated or amended to
reflect changes in society
○ Updates of current laws are now done online
© 2012 McGraw-Hill Ryerson Limited 1-18
- 19. Quebec’s Civil Code
Influence of the French Civil Code system
A body of written law that sets out private
rights of the citizens of the state
Historical from Prussia and codified by
Napoleon in the 1800’s
Recent code is from 1994.
© 2012 McGraw-Hill Ryerson Limited 1-19
- 20. Codification of Common Law
Codification of the common law into statutes
Bills of Exchange Act; Partnership Act; Sale
of Goods Act
Took place during late 1800’s
Advantage over common law is certainty
Still requires judges interpretation
© 2012 McGraw-Hill Ryerson Limited 1-20
- 21. Administrative Law
A body of rules governing the application of
statutes to activities regulated by
administrative tribunals or boards
Regulations – procedural rules made under a
statute
Administrative Tribunals – agencies created
by legislation to regulate activities or do
specific things
Power is delegated from Legislative body to
Tribunal or Board
Decisions may be subject to judicial review
© 2012 McGraw-Hill Ryerson Limited 1-21
- 22. Constitutional Foundations
Constitution -
Basis upon which a state is organized, and the powers of
government defined
The supreme law - Rules for making Laws
2 Major Parts
○ Canadian Charter of Rights and Freedoms
○ Amending Formula
1867 B.N.A. Act and 1982 Canada Act
Legislative bodies that do not follow constitutional rules
risk having their laws declared unenforceable or ultra
vires
© 2012 McGraw-Hill Ryerson Limited 1-22
- 23. Constitution
Division of Powers
Section 91: Federal powers
Section 92: Provincial powers
Governments are limited to making laws
within their area of power
Residual power
given to the federal government; all matters
not expressly given to the provinces belongs
to the federal government
© 2012 McGraw-Hill Ryerson Limited 1-23
- 24. Charter of Rights
Sets out basic rights and freedoms of all
Canadians that governments are to respect
Entrenched in the Constitution – difficult to
change
Section 1 (Reasonable Restrictions)
The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it,
subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free
and democratic society.
© 2012 McGraw-Hill Ryerson Limited 1-24
- 25. Charter of Rights
Notwithstanding Clause (s.33)
Permits the government to pass legislation
that conflicts with or overrides charter rights
by way of a “notwithstanding clause”
Some sections of the Charter cannot be
overridden
Sunset clause – s.33 laws passed under this
section last for a five year period, unless
renewed
© 2012 McGraw-Hill Ryerson Limited 1-25
- 26. Fundamental Freedoms
S.2
Freedom of conscience and religion
Freedom of thought and expression
Freedom of the press
Freedom of peaceful assembly
Freedom of association
© 2012 McGraw-Hill Ryerson Limited 1-26
- 27. Other Rights
Mobility
Permits free movement within Canada
Personal Liberty
Enjoy life without interference of the State
Life, liberty and security of the person
Right to be free from unreasonable search
and seizure
Free from arbitrary detention or
imprisonment
© 2012 McGraw-Hill Ryerson Limited 1-27
- 28. Other Rights
Right to Due Process
Informed of rights on arrest
Right to a lawyer
Only arrested for committing an offence
Innocent until proven guilty
Right to fair trials, reasonable bail
© 2012 McGraw-Hill Ryerson Limited 1-28
- 29. Other Rights
Equality Rights
Every individual is equal before the law
Note language of charter language: person,
citizen, individual
No discrimination based on race, creed, colour,
religion, sex, age, national or ethnic origin or any
mental or physical disability
Affirmative action is allowed for disadvantaged
groups
© 2012 McGraw-Hill Ryerson Limited 1-29
- 30. Other Rights
Language Rights
2 official languages of English and French
Government (federal) to provide services in
both official languages
Rights of education to be made available in
preferred official language
© 2012 McGraw-Hill Ryerson Limited 1-30
- 31. Enforcement of Rights
Apply to the courts to challenge legislation that
offends Charter rights
Charter only applies to governments not to
private groups or individuals
Private matters are dealt with through
Provincial human rights legislation
“Read Into” the recent trend of courts to read
into the Charter words or provisions that the
legislative bodies did not
Reference Cases – example is the Same Sex
Marriage case
© 2012 McGraw-Hill Ryerson Limited 1-31
- 32. Classification of Laws
Substantive Law
All laws that set out the rights and duties of
individuals
Procedural Law
Procedures taken to enforce a substantive law
Substantive Right
An individual right enforceable at law
Public Law
Relates to relationship between governments and
persons
Private Law
Relates to relationship between individuals
© 2012 McGraw-Hill Ryerson Limited 1-32
- 33. SUMMARY
Law is the means by which state maintains
social control
Courts used as vehicle of enforcement
Common law and statute law exist today
Rule of Precedent “stare decisis” allows for judicial
interpretation of laws and a hierarchy of courts
Charter Rights
S.1 rights are not absolute
S.33 can be overridden with notwithstanding clause
Substantive rights and law are enforced or
applied through procedural law processes
© 2012 McGraw-Hill Ryerson Limited 1-33