Section 1
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Codified Law
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Section 1
(50 cards)
Codified Law
..., written law enacted by a duly constituted authority
Military Law
The branch of public law governing military discipline and other rules regarding service in the armed forces .• It is exercised both in peacetime and in war, is recognized by civil courts, and includes rules far broader than for the punishment ofoffenders. Also termed military justice. - Sometimes loosely termed martial law. Cf. MARTIAL LAW. "Military Law. . is largely, but not exclUSively, statutory in character, and prescribes the rights of, and imposes duties and obligations upon, the several classes of persons composing its military establishment; it creates military tribunals, endows them with appropriate jurisdiction and regulates their procedure; it also defines military offenses and, by the imposition of adequate penalties, endeavors to prevent their occurrence." George B. Davis, A Treatise on the Military Law of the United States 1 (3d ed. 1915).
Natural Law Theory
Thomas Aquinas • Believes in the innate rationality of humans • Believed that rational law was part of God's plan • Believed that it should be human kinds aim to build a society that was consonant with the natural law • Designed to promote overall utility • Any law that doesn't promote the common good is an unjust law • STRONG CONNECTION BETWEEN THE LAW AND MORALITY • Those things that are morally wrong should be illegal • We still see natural law principles within our charter • Particularly with laws which call for prohibition of inhumane punishment and respect for religious cultures
Procedural Law (1896)
The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves. Also termed adjective law. Cf. SUBSTANTIVE LAW. [Cases: Statutes (;::J242
Statutory Law
..., Created by legislative branch of the government. Usually take some written form.
Public Law
1. Regulates the structure and administration of the gov't. 2. Regulates the conduct of the gov't in relation to its citizens. 3. Regulates the conduct of the gov't in relation to foreign gov'ts. Involved in regulating 1) The relationship of the gov't to its own bodies and branches 2) Gov't to its citizens C) Govts to foreign goats
jus privatum (j<'lS pn-vay-tdm), n. [Latin "private law"]
1. Roman & civil law. Private law, consisting of all the branches oflaw that regulate the relations of citizens to one another, including family law, property, obligations, and testate and intestate succession. 2. The right, title, or dominion of private
Unwritten/Un-codified Law
Customs, religious dogma and values, and tradition
Substantive Law Def.
The part of the law that creates, defines, and regulates the rights, duties, and powers of parties. Cf. PROCEDURAL LAW. "SO far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other." John Salmond, jurisprudence 476 (Glanville L. Williams ed., 10thed.1947).
Legal Systems of the Colonies in Canada during Colonial Rule
Example of Transitional Legal System
Procedural Law
The procedures by which substantive law are administered. Rules about the rules governing society. Explain how to enforce and the defend the rights, obligations, and prohibitions of substantive law. Ex: Criminal Law: rules how about how to adjudicate. Would prescribe the rules of fair trial, or the rules concerning human punishment. Lays out the procedures of fair trail.
Transitional Legal Systems
Found in a vast agrian and early industrialized society. Economic, educational, and political sub-systems are increasingly differentiated. Beginnings of distinction btw public/private law. More complex and codified legal system. Greater differentiation btw laws, courts, enforcement bodies and legislative structures. More differentiated from custom, tradition, and religious dogma. More often written and codified. Greater differentiation btw procedural and substantive law. Greater distinction of the law in terms of the complexity of the courts. More institutionalized. Legal practitioners undergoing more training. More bureaucracy in the court. Growth in the administrative roles of the court Centralized gov't bodies can enact law. Greater development of state Great development of enforcement bodies (police force) Clear distinction btw Legislative, Judicial, and Executive structure. Law-making more dominated by political elite which will be applied to specific circumstances by legal professionals.
Private Law
Relationship of individuals with each other. - Tortuous conduct - Breach of contract - Laws of inheritance
Substantive Law
The rights, duties, and prohibitions concerning what is right, wrong, permissible, and impermissible conduct in any given society. Ex: May define what is a crime in particular society and may lay down the corresponding punishment for that crime
Traditional Legal Systems: Substantive Law and Procedural Law
Informal differentiation between the two.
Substantive Law
Statutory or written law. Law that delineates our rights, obligations, and the prohibitions of a particular society. This law is codified in legal statutes Ex: Crimes, Punishments, and Civil Law Murder as a criminal offence is an example of substantive law as it is WRITTEN and CODIFIED in our Criminal Code
Rodriguez case
...
Internalization of Patterns of Behaviour
Law facilitates the incorporation of certain values that are implicit in the law. Ex: Idea that discrimination is wrong. • Internalization of an ethical norm that is implicit in the law
Why do traditional societies not require complex networks of regulation?
Traditional societies are less diverse in culture, in terms of economic means of production, in terms of size. The law in this context is governing a very close knit society, largely governed by kinship relationships.
Problem with the word "Primitive"
Conveys a moral judgement being made about the societies which is not fair given the needs of a society that adopts a traditional legal system would be very different form that of a society adopting a modern legal system.
jus publicum (jdS pdb-li-bm), n. [Latin "public law"]
1. Roman & civil law. Public law, consisting of constitutional law, administrative law, criminal law and procedure, and the law relating to sacred rites (jus sacrum). 2.The right, title, or dominion of public ownership; esp., the government's right to own real property in trust for the public benefit. See PUBLIC LAW. Cf. JUS PRIVATUM.
Albert Venn Dicey
British Jurist (1835 to 1922): Father of "Rule of Law Doctrine" Argued that for the Rule Of Law to exist everyone had to be subject to it even the government who created it. Stable legal system takes precedence over unjust regulation. Public Opinion drives social change, so laws should reflect public opinion. • Growth in statutory law can be attributed to the power of public opinion • Pubic opinion shaped by morals, religious values, etc. • He is then saying that the law is driven by our prevailing economic, historical, and literary features of society
Adamson Hoebel
(1906 -1993): Anthropology of Law • Interested in the development of law in pre-literate societies His work centred on LAW-JOBS • Made central to all law-making (primitive, advanced etc) • You can not understand a society simply by looking at statues and precedents • One had to look at their methods of dispute resolution • Mediation and negotiation as just as much part of the definition of law as adjudication • Any social norm .. • Anything made ... by legitimate authority = law • Social norms = legals norms IF backed by legitimate force
Law-Jobs
Hoebel's work centred on this notion that law must be studied through an analysis of the practices of disputer resolution.
Procedural Law Def.
A classification of law that prescribes the steps, or processes, for enforcing the rights and duties defined by substantive law
Barriers to Law Creating Social Change
Religious groups may oppose laws that contravene what they fundamentally believe in
Internal Perspectives on the Law
a study of the law as enforced and instituted by those internal to the legal system (practitioners, judges, Courts, etc).
Internalization + Institutionalization
Law develops norms. Law ensures that we follow these norms by developing rules, and punishments in the event that it isn't followed • The values implicit in the rule are thus internalized by society So in some way law propagates or reproduces moral values and beliefs
Socio-legal Theories of Law
• See law as a semi-autonomous discipline • See that law and society are connected but see them as separate - Argue that social situations in which laws are being applied are significant because law is involved in creating, maintaining, reinforcing, or changing those situations Approaching law from the perspective of other aspects of social life: philosophy, literature, geography, sociology, art, etc. This is the "Law in Action" - as opposed to law in the books
Substantive Law Def.
General principles and detailed rules that define legal rights and duties. Defines duties, establishes rights, and prohibits wrongs.
ordinandi lex (or-d<l-nan-dI leks). [Latin]
The law ofprocedure, as distinguished from substantive law.
Hoebel's Definition of Law
"A social norm is legal if its neglect or infraction is regularly met, in threat or intact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting."
Administrative Law Definitions
The law governing the organization and operation of administrative agencies (including executive and independent agencies) and the relations of administrative agencies with the legislature, the executive, the judiciary, and the public .• Administrative law is divided into three parts: (1) the statutes endowing agencies with powers and establishing rules ofsubstantive law relating to those powers; (2) the body ofagency-made law, consisting ofadministrative rules, regulations, reports, or opinions containing findings offact, and orders; and (3) the legal principles governing the acts of public agents when those acts conflict with private rights. [Cases: Administrative Law and Procedure C=:' 1.] "Administrative law deals with the field of legal control exercised by law·administering agencies other than courts, and the field of control exercised by courts over such agencies'" Felix Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614, 615 (1927). "[Ajdministrative law is to labor law, securities regulation, and tax what civil procedure is to contracts, torts, and commercial law. Administrative law studies the way govern· ment institutions do things. It is therefore the procedural component to any practice that affects or is affected by government decision makers other than just the courts. Its study goes beyond traditional questions; it explores a variety of procedures and it develops ideas about decision· making and decisionmakers"· 1 Charles H. Koch, Adminis· trative Law and Practice § 1.2, at 2 (2d ed. 1997).
4 Functions of Law
1. Settle disputes 2. Co-ordinates interaction and regulate exchanges. - Make life more predictable in terms of these transactions and exchanges between people. 3. Operate to legitimize existing inequalities. Justify a hierarchical arrangement of society based on religion, caste systems, social class, supernatural or sacred. 4. Operate to punish and prevent deviant and transgressive behaviours.
Common Law
..., (civil law) a law established by following earlier judicial decisions, based on precedents and customs Anglo-American system of uncodified law, in which judges follow precedents set by earlier decisions when the decided new, but similar cases.
Jurisprudential Theories
The philosophy or science of law and legal regulations. Intellectual inquiry about law, legal principles, and law as it is implemented by legal institutions and how this may DIFFER from ideal conceptions of law. • Look at the application of law by legal institutions and professionals • HOW LAW IS ENFORCED in practice • Study of law that enforces the application, creation, and enforcement of law • Would contest the idea that law had some sort of ethics • Organization of society or the prevailing, socio-political historical sources of society • FOCUS ON LAW AS IT IS IMPLEMENTED.
Legal Realism
Response to positivism. Sceptical of positivism. Argued that we could not organize legal institutions without context. Argue that law is a reflection of the personal views of those enacting the law. The actual practice of law is what determines what law is. Judicial interpretation, enforcement of legal sanctions, application of law by legal professionals is what determines law. Means that the law is UNSTABLE, INDETERMINATE, and INCONSISTENT. Outcome of a case is not dependent on statue, precedent, or any sort of formal rules. How the courts or jury respond is what determines the outcome. Means there is now real way to predict the outcomes of a case through this. Personality and personal factors of the judge are what determine the outcome. Believe the law is continually changing because of the people's moral frameworks, cultural sensibilities, or political sensitivities. Believe that even
Sociological Theories of Law
Theories that are interested in explaining why law and legal regulation emerges as it does. Ex: Durkheim: Organic and Mechanical Solidarity
Modern Legal Systems
Like Transitional Legal Systems but with greater and more elaborate arrangement. Highly industrialized societies. More networked and complex. Proliferation of public and procedural law - ADMINISTRATIVE LAW Increase in STATUTORY OR CODIFIED law over COMMON LAW Hierarchy in the organization and significance of law: Ex: Constitutional law seen as higher law than in traffic regulations or criminal procedure. Federal Law, Regional Law, Municipal Law Courts have greater role in mediating conflict disputes and deviance. Bureaucratization of the Courts & law enforcement agencies. Role of lawyers and judges become more professionalized and further regulated. Licensing required. Formal sanctions put in place on lawyers etc. Court = more bureaucratized • Further delineation of courts... clear appeal processes put in place.. Hierarchy within the courts • Ex: Canada - Federal courts exercising jurisdiction over the decisions of provincial or municipal courts • Decisions of courts carried out by clearly differentiated, professionalized, and permanent police force • Law enforcement bodies also become further bureaucratized and hierarchical.... LAPD and then.. FBI (hierarchy) Canada: Municipal police force, and also the RCMP Growth in regulatory agencies that enforce and oversee compliance with the law EX: Administrative tribunals that oversee whether Labour standards are being followed and environmental regulations are being followed by organizations
Procedural Law
Refers to rules about how to enforce and defend rights and obligations. Rules of enforcing substantive law. How substantive law is administered.' Procedures and Processes surrounding legal practice.] Ex: The rules of Criminal Procedure How court proceeds in criminal trials.
Administrative Law
Public and Procedural Law. Laws that govern the activities and decision making of admin. agencies of the gov't. Government bodies that regulate taxation, manufacturing, internal and int'l trade.
Legal positivism
Emphasize the neutrality of law, and summarily dismiss the thesis that "an unjust law is not a law." saying, in effect, "any enactment of the legislature is a law."
Oliver Wendell Holmes Jr.
(1841-1945): Socio-legal theorist: FOUNDER OF SCHOOL OF LEGAL REALISM. • Legal scholar who also served as an associative justice • LEGAL REALISM • Was a skeptic of natural law and legal positivism • He believed that judges MADE law rather than FOUND it • So law was not impartial or just • Particularities of a society shape the making of that law • That is why he was a socio-legal theorist • What law meant and represented depended on the society in which that law functioned
Public law
Laws that govern the duties and powers and officials. Relationship with the secular governing authority
Institutionalization of patterns of behaviours
Law establishes norms of behaviour and produce sanctions and provisions for its enforcement Non-discrimination in employment. Creates rules and sanctions to make sure that we follow this. Makes a rule, then enforces penalties in the event that the rule is contravened.
Natural law
Associated with Thomas Aquinus Law is used to promote overall utility Any law that does not do so is by definition a bad law. Natural Law theorists believe that AN UNJUST LAW IS NO LAW AT ALL. STRONG CONNECTION BETWEEN LAW AND MORALITY Any actions that are morally wrong should be against the law; any actions that are morally right should be legal. Forms the bedrock of modern law today. We see natural law principles within our Charter. Interested in upholding morally right action which protects the common good of society.
Traditional Legal Systems
Legal systems found in less complex societies - hunter gatherer, simple agrian societies - societies without a state government. Courts and law enforcements bodies assembled for resolving disputes temporarily. - Very little distinction btw. judges and political leaders and judges and religious leaders. - No distinction btw law and politics and law and morality
jus publicum (jdS pdb-li-bm), n. [Latin "public law"]
1.Roman & civil law. Public law, consisting of constitutional law, administrative law, criminal law and procedure, and the law relating to sacred rites (jus sacrum). 2.The right, title, or dominion of public ownership; esp., the government's right to own real property in trust for the public benefit. S ee PUBLIC LAW. Cf. JUS PRIVATUM.
Galanter's Model of Modern Legal Systems
1. Uniform 2. Transactional 3. Universalistic 4. Hierarchical 5. Bureaucratized 6. Rational 7. Trained Professionals 8. Specialed Prof. Intermediaries 9. Amendable 10. Political 11. 3 Branches: Executive, Legislative, Judicial
Legal Positivism
Laws are social rules enacted by a sovereign governing authority or are derived logically from existing decisions irrespective of moral/ideal considerations. Set of rules backed by social and economic sanctions. Separation between law and morality and law and politics. Focus on Process over Content. Pratice of law as a science. Law should be practiced objectively Legal positivists would welcome the Rodriguez ruling because it was within the guidelines of the law - Legal practice had to be bound by these constraints - Could not take into account the particulars of their situation - Distinction btw the practice of law and politics Idea that the law should remain objective and impartial.
Section 2
(27 cards)