TABLE OF CONTENTS Chapter Page Chapter 1 – Legal Theories 2 Chapter 2 – Aboriginals 13 Chapter 3 – Bijuralism & International law 48 Chapter 4 – Rule of Law, Parliamentary 64 Privilege and Constitutional Supremacy Chapter 5 – Parliament and its Components 76 Chapter 6 – Functions of Parliament 77 Chapter 7 – The Executive and its Functions 79 Chapter 8 – Hierarchy of Courts 90 Chapter 9 – Statutory Interpretations 103 Chapter 10 – Judicial Review & its Limitation 111 in Democratic Society 1 CHAPTER ONE Positive Law • Positivism Law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings’ vs created via nature). Legal positivism and its conception of law as nothing more than the rules and principles (or social facts) that actually regulate a society • Insists on the separation of law and morality focuses on describing laws without reference to justness or legitimacy. Concerned with what is legally valid, not morally valid. Morality can be relative. (a) Legal Positivism What the law is Re Noble and Wolf Restrictive covenant held valid. Facts: Individual cottage lots contained similar Judge said that he would rather stick to law, written statues, covenants relating to coloured and jews. unwritten or common law decisions, or text etc.; not Tried to rely on the above case to invalidate. speculations Leave the public policy to the politicians. Judge job is to interpret the law and not to create the law based on Held- Disagrees with Drummond Case. The individual belief of what the law ought to be. judge said that leave the concept of public policy for the politicians. Re Drummond case was based on shelter, whereas in this case it was for creation purposes rather than shelter. Natural Law; Natural law theory: • Laws are those that adhere to certain moral truths, most often of a universal and immutable nature; i.e. law’s legal authority depends upon an external moral standard that holds across all societies. • It views law as existing independently of positive law and constituted by immutable moral truths. 2 (a) Natural law What laws are? (but with reference to normative criteria [touches on what law ought to be]) Re Drummond Wren A covenant for restriction to sell is void, - Facts: Held-The judge decides the case on morality and justice WEA bought a lot with the intention to build it and by extending his views beyond the statute and gives way then sell it in order to raise funds. There was a to public policy.. Since Canada is a country of minorities covenant that the land cannot be used or sold to therefore, it is his duty to aid unity. Jews or objectionable nationality. WEA (purchaser) applied to have this covenant invalid Inclusive positivists advocate that it is conceptually plausible, but not mandatory, that the legal validity or truth of a norm should be dependent on its consistency with moral values or principles. Exclusive positivists hold the opposite. They believe that it is not possible for the legal validity of a norm to even be a function of its consistency with moral values or principles. Critical Legal Theory: • Realists maintained that all legal rules were indeterminate in the sense that any articulation of a rule was subject to multiple interpretations…. the result would reflect the unstated public policy preferences of the judge. There could reasonable apprehension bias. CLS poses a deep challenge to the liberal belief that law should be certain and neutral R v R.D.S: Cory J implicitly affirms the insights of CLS scholarship to find that a judge who considered social context in making a decision was not violating the requirement for neutrality. Judge made statement saying that Police have been known to mislead the courts. Crown said this raised reasonable apprehension of bias. Crown appealed to Appeal Court, new trial ordered b/c agreed reasonable apprehension bias Law and Economic Theory: • Law and economics theories look at law differently, less grounded in moral theory and more in ideas about efficiency (as opposed to feminism, which deals with producing equality); • Efficiency tends to be defined in terms of an ideal where the welfare of each of the relevant parties 3 can no longer be maximized except at the expense of other parties, referred to as a state of “Pareto optimality.” • This form of analysis was first applied on common law rules developed in private law areas such as torts and contracts. Feminist Theory: • Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender (i) Early formalist feminism – the “Persons” case Early feminism – concerned with seeking women’s formal equality to men. Edwards v. AG Canada [1930] AC 124, 1 DLR 98 (PC) LORD SANKEY LC: Question: whether the words “qualified persons” in that section include a woman, and consequently whether or women are eligible to be summoned to and become members of the Senate of Canada. ii) Contemporary Feminism Case of abortion one of most continuous areas of public debate and good start to examine feminist theory in practice. Three doctors, charged with the offence of procuring a miscarriage contrary to s. 251(1) [criminalizing the procurement of an abortion unless properly authorized by a physician]. The majority of the court found the provision to offend the Charter. Justice Bertha Wilson, who agreed with the majority in the end result, rendered a separate opinion. Her decision is an example of a modern feminist approach to a public law concern—note how her opinion takes a woman’s point of view, in finding that a woman should not be required to carry a baby to term if she does not wish to. Required Readings: Article 1: 4 Green, Leslie. “Legal Positivism.” In The Stanford Encyclopedia of Philosophy. • “The existence and content of law depends on social facts and not on its merits” • This article is a general but succinct overview of the history and development of positivism since its inception., an issue which has moved to the and forefront of debate among positivists and legal theorists more generally History, Development and Influence: • Leslie discusses John Austin, author of “Legal Positivism”. Jeremy Bentham is the originator of the positivism theory. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907- 92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. For Hart, the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have. Sources of LAW • What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists except Kelsen. For others, legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of the highest courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not merely a consequence of it. • Hans Kelsen retains the imperativalists' monism, where to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Therefore as imperatival , the legal system is founded upon rules, which if not followed, there is apenalty. The rules are created by the commanding sovereign, who is not questioned as to their morality to rule • For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed. Of these three “secondary rules,” as Hart calls them, the source-determining rule of recognition is most important 5 Moral Principles and the Boundaries of Law • The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. • Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity. (It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good. The idea that law might of its very nature be morally problematic does not seem to have occurred to them.) • As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts . Dwarkin talks about - Who gives them power to make the law - Which law sovereign abide to - Allow the law to have this course, the law is not good if it is forced 4.