CHAPTER 2 SOURCES AND CATEGORIES OF LAW PRIMARY

CHAPTER 2 SOURCES AND CATEGORIES OF LAW

PRIMARY SOURCES OF CANADIAN LAW Influence of Religion and Morality Canada’s laws reflect the Judeo-Christian religious heritage. q The primary source is the Old Testament of the Christian Bible. q The core of these laws are based on the Ten Commandments. q Religion has had a profound effect on the development of Canadian Law. q

Consider, for example the Charter of Rights and Freedoms passed in 1982. The preamble to the Charter Reads: “WHEREAS CANADA IS FOUNDED UPON PRINCIPLES THAT RECOGNIZE THE SUPREMACY OF GOD AND THE RULE OF LAW”

q This wording reflects the fact that a majority of Canadians profess a belief system that assumes the existence of God as the supreme being and , as such, the original source of law. q Canada is not the only country whose laws reflect religious heritage. q Many countries, in the Middle East, Africa and Asia base their laws on the teachings of the Qur’an, the holy book of Islam. q Hinduism has influenced the law in India and Shintoism has influenced Japan’s laws.

Canada’s laws also reflect the influence of moral philosophy or ethics q Moral philosophy deals with the distinction between right and wrong regarding human behaviour. q Laws are a written affirmations of what society as a whole considers good and bad behaviour.

Historical Influences I. Greek Influences II. Roman Influences III. Aboriginal Influences IV. British Influences

INFLUENCE OF CUSTOMS AND CONVENTIONS Ø CUSTOMS: a long established way of doing something that, over time, has acquired the force of law Ø CONVENTIONS: a way of doing something that has been accepted for so long that it amounts to an unwritten rule. Similar to customs but apply mainly to political practices

INFLUENCE OF SOCIAL AND POLITICAL PHILOSOPHY Ø Social movements and Political Philosophies have also influenced Canada’s Laws. q For example, public reaction to the Holocaust and the Civil Rights Movement in the U. S helped bring about the Canadian Human Rights Act, 1977.

Secondary sources of law Constitution Act 1982 Statutes or Acts Case or Common Law

SECONDARY SOURCES OF LAW q Current laws that enshrine a society`s values in written rules and regulations that have been formulated by legislators and judges.

CONSTITUTIONAL LAW: The body of written and unwritten laws that set out how the country will be governed. This type 0 f law sets out the distribution of powers between the federal government and provinces. CASE LAW/COMMON LAW: A type of law developed in England that is based on following previous judicial decisions And is common to all the people of a country. STATUTE LAW: Laws passed by legislatures.

SOURCES OF LAW Religion Primary Secondary Sources Customs And Conventions Historical Influences Social & Political Philosophy Constitution Statutes Court Decisions

CLASSIFYING THE LAW Common Law System -- the term means more than just judge made law, but also is used to define laws as being applicable throughout the country. It is still reliant on judicial decisions. Civil Law System -- civil law relies less on judges, and more on a codification system. . . all the laws made by the government are written down. Quebec still has a Civil Code in effect, as a left over of their French origins.

Substantive and Procedural Law Substantive laws are those which prescribe a set of values defining rights and obligations. . . For example, section 253 of the Criminal code, makes it unlawful to operate a motor vehicle under the influence is a substantive law because it defines legal obligation. Procedural laws formulate how society enforces those rights and obligations. Section 258 of the C. C. C. , dealing with admission of a certificate of breath analysis to enter blood-alcohol content into evidence, is procedural law.

Domestic and International Law -- domestic laws are those of a particular country, enforceable only within that country. International laws are those which are agreed upon by a group of sovereign nations. The Nuremberg Principles, the Universal Declaration of Human Rights, and NAFTA. Private Law -- Refers to the legal rules that govern people’s private relations. . . Property law, Tort law, Contract law, Family Law etc. ,

Public Law -- governs and regulates the interaction between the state and its citizens Constitutional Law-- determines the legitimacy of laws and actions of government under the constitution Criminal law-- is comprised of rules made to prohibit and punish conduct that is against society Administrative Law--governs operation of Agencies that regulate activities within society such as licences and social welfare benefits.

CIVIL VS. CRIMINAL LAW Civil cases are those dealing with private law. . . Criminal cases deal with public law.