Grd. 12 Law Notes (y’all owe me)
By Bridget Walsh
Legal Literacy
Actus reus- latin for guilty act, must be voluntary
Mens reus- latin for guilty mind, intent
Obiter dictum- opinion necessary for the decision of a case
Ratio decidendi- latin for reason for decision
Style of cause- part of the title of a case referring to the parties involved
Stare decisis- latin for rule of precedent
Conciliation- a voluntary method of settling disputes whereby an impartial 3rd party mediates
Voir dire- trial within a trial
Patriate- to bring back to the country
Orders-in-council- regulations in a broader scope that statutes keep their details in legal documents
Perjury- lies! Under oath
Tort law- civil law dealing with compensation from damages resulting from negligence
Ultra vires- legislation falls outside jurisdiction
Bill- draft legislation subject to approval
Intra vires- legislation falls within authority
Res judicata- judge decision is final. Matter adjudicated
Habeas corpus- court order to determine if a person has been detained legally
Chapter 2-Origins of Law
Jurisprudence- means philosophy or science of law, from the Latin “juris” meaning of right or of law and “prudens” meaning skilled or learned in law. Today encompasses many aspects of law including history, concepts, theories, theorists, principles and institutions
Sources of Law
Primary Sources
Those that have influenced our ideas and values about law throughout history
Customs and Conventions
Customs are general practices or rules that arose from everyday living, passed on instinctively, some survive to actual written law e.g. adverse possession laws (squatters rights, living on land long enough you may be entitled to it)
Conventions are agreements or arrangements that are not necessarily formal contracts but impose an obligation or a way of doing something because it is the way it has always been done
Religion
Inclusion of “supremacy of God” found in our Charter
Prohibitions against murder, theft and perjury found in the Ten Commandments remain present in our Criminal Code, other things like adultery as grounds for divorce
Social and Political Influences
Law cannot be separated from the social, political, economic and cultural characteristics of a country or time period e.g. women’s rights before 1983 a man could rape his wife in Canada
Laws continue to be influenced by these factors but now aim to strike a fine balance
Secondary Sources
Codified written down laws in response to values as listed above
Constitutions
Highest level of law in Canada
Basic blueprint for governance
Statute Law (Substantive Law)
Refers to a law passed by our elected representatives at either the federal or provincial level
Intro-ed as a bill, 3 reading in the House of Commons must receive majority vote in both Parliament and the Senate, governor general or lieutenant governor signs it becomes law
Judicial Decisions (Case Law/Common Law)
Dual system that is based on written law and precedent (common law, based on judicial decisions)
Collective of judgements known as case law
Common law has 3 meanings
Law that came from Britain
Law that is common to all
Law based on precedent or judicial decisions
British Common Law
Based on adversarial trial
Burden of proof lies with the Crown
Judge plays an important albeit limited role
Judge does not ask questions
Chapter 3-Concepts, Theories and Theorists
Legal Concepts
Law is a system for conflict resolution, balancing the interests of individuals against those of the community it must uphold shared values while resolving conflicts
Relating abstract concepts is called judicial reasoning
Democracy- form of government in which the power resides in and is exercised by the people. However socialists and capitalists differ on which system is more democratic and democracy is also criticized because freedom given to the majority may be used to harm the minority (ex. United States slavery)
Sovereignty- the principle that nation states can impose whatever laws