CHAPTER 1 - Three theories of law have played important roles in the development of a philosophical basis of law: - Natural Theory Law - Legal Positivism - Legal Realism - To determine whether a given rule is a law, an adherent of thes pholosophies would test: - What am I required to do morally? - Was the rule passed by somebody with authority? - Do the courts enforce the rule? - Natural law theory defines law in terms of morality. - With the approach to the law called legal realism, law and morality are seperable. - The practical definition of law has been determined to be the most workable in modern society: - The law is whatever the courts are willing to enforce. - Our definition of law is affected by: history, theory, legal system in place, social realities. - Law: The body of rules that can be enforced by the courts or other government agencies. - Procedural laws: How rights and obligations are enforced. - Civil law as used in Quebec is based on Napoleon's Code. - Civil law is used primarily in Great Britain and Commonwealth countries. - The term "common law" came to identify the legal system because it developed from the customs and traditions common to the people. - The most significant characteristic of common law is the doctrine known as stare decisis. - Under a common law system people can predict decisions based on prior decidions made in a higher court. - In our system, it is more important for judges to decide on the basis of applying the law than what is fair and just. - An Ontario judge is free to ignore a decision made in B.C. - Common law did not come from the king down to the people but up from the people to the legal system. - Two common law features of the common law courts that gave rise to the need for a method of providing relief from the harshness of that system: - procedural rigidity - inflexibility and/or limited remedies - The Courts of Chancery: - have been fraught with as much delay and inefficiency as the common law courts - eventually became as formal and as rigid as the common law courts - eventually adopted the practice of stare decisis - provided a supplement to the common law courts and did not replace them - The common law courts and Courts of Chancery managed to achieve a workable system. - The courts were amalgamated and the principle developed that whenever there was a conflict betwen law and equity, equity would prevail. - Equity: - The term equity as it is used in our legal system today simply means that body of rules developed by the Courts of Chancery. - The practice of paying monetary compensation as a remedy in a court action is a remedy developed in the Common law courts. - The law of equity was developed to overcome the limitations of the common law. - The remedy of an injunction is an equitable remedy created by the Courts of Chancery. - The Judiciary Acts amalgamated the Common Law Courts and the Courts of Chancery. - The common law court system was made up of: the Court of Common Pleas, the Exchequer Court and the Court of King's Bench. - The executive branch refers to: prime minister and cabinet, departments and agencies of government. - Government is divided into three functions, the executive branch, the legislative branch, and the judicial branch. - Because of parliamentary supremacy in Endland, the executive and judicial branches are submissive to the legislature. - The bureacracy is the embodiment of the executive branch of government. - Regulations are subordinate legislation created under the power vested in someone by statute. - Parliamentary statutes override common law. CHAPTER 2 - A jury might participate in the Superior court of the province - Juries are most likely to sit in: civil action for personal injury, serious criminal action. - Supreme Court of Canada is the highest court in Canada. - A person does not have an automatic right to appeal a case to the Supreme Court of Canada. - The federal court includes trial and appellate divisions and hears matters dealing with matters assigned to the federal government under Section 91 of the Constitution Act (1867) - When a judge has made errors in law, a case will be accepted for appeal. - A plaintiff has choices when deciding in which jurisdiction to sue where the defendant resides or where the injurious event occurred. - The various documents prepared by the parties in a lawsuit priot to trial and filed with the court of registry are called the pleadings. - The plaintiff, generally, is the party that initiates an action at the trial level. - The purpose of the discovery stage in pre-trial hearings is to get all the information pertinent to the case out. - How can the time consuming pre-trial processes be justified? It is an attempt to get all the matters out so that the parties can settle it between themselves. - What is the purpose of an examination in aid of execution? It is the term used to describe the process where each party must disclose to the other the documents they will be using at the trial. - Litigants are discouraged from going to small clains court without a lawyer. - The process of civil litigation is designed to encourage people to settle their disputes out of court. - Community service canot be awarded in a civil court judgement. 1