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CRAMlawfinalreview - (1) Muir Edwards v. Canada-aka The...

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(1) Muir Edwards v. Canada—aka The Persons Case: Viscount Sankey found that the meaning of "qualified persons" could be read broadly to include women, reversing the decision of the Supreme Court. The landmark ruling was handed down on October 29, 1929. To arrive that his conclusion, Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada. The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention. Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation. From this the approach became known as the living tree doctrine which requires "large and liberal" interpretation. In applying this approach to the current case Lord Sankey held that the "exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word "person" should include females, the obvious answer is, why should it not?" (2) Max Weber: - Rational legal authority —traditions, leaders, etc. - To understand law as a tool of social change, we have to understand its capacity - He tries to answer why we follow law and obey its authority and why it is that the law has rational legal authority (why we 'buy it') - Weber says that because law has so much authority, when law says something needs to change in society, we buy it, because of its position of authority. Tendency to accept and follow - Why we 'buy it' : because when we enter the social contract part of the agreement it that we assume the governing institutions are right and will take care of us—simply by giving up some of our rights and freedoms. We then generally assume that the governing institutions are right, and are there to take care of us, therefore will do the right thing for the people - Points Weber notes: we tend to trust the law when it says that something is “bad”; we tend to trust the law to choose when it's time to change what is “right” and “wrong”; if you want to change something, law is a good way to do it - Rational legal authority : how people/organizations/social movements use the law as a way to legitimize their claims, as a way to gain credibility. This is a question that Brickie & Comack discuss (3) Law as a tool of social change: 3 rd function of law: - we sometimes use law to shift the way things work in our society. Another means of evolving a society. Everything around us is constantly changing, and these changes should be reflected in our laws. 1. How does the law bring about social change?
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This note was uploaded on 08/13/2008 for the course LAWS 1000 taught by Professor Kuzmarov during the Fall '08 term at Carleton CA.

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CRAMlawfinalreview - (1) Muir Edwards v. Canada-aka The...

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