blaw01a - Elements of Law - Part One Introduction to...

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Unformatted text preview: Elements of Law - Part One Introduction to Business Law Lectures by Laurence Olivo © 2007 Captus Press Inc. Introduction to Business Law Nature and role of law in society Canadian Constitution Charter of Rights and Freedoms Tort law Contract law Business entities © 2007 Captus Press Inc. 1 Elements of Law - Part One Part I The Canadian Legal System And How It Works Unit 1 The Nature and Role of Law © 2007 Captus Press Inc. Module 1 The Nature of a Legal System © 2007 Captus Press Inc. © 2007 Captus Press Inc. 2 Elements of Law - Part One Nature of Law the law regulates human behaviour in social groups rules describing required behaviour usually comes from a superior authority that ordinary society members are prepared to obey Rules are backed by sanctions or threat of sanctions Natural Law and Positivism Valid law for a positivist is the actual law of the state as declared by the ruler and enforced by sanctions It is the law as it is, not as it should be, if it properly made and enforce, it must be obeyed even if it is immoral. Valid law for a natural lawyer is law which conforms to fundamental moral principles Law must reflect morality, and if it does not it need not be obeyed. © 2007 Captus Press Inc. 3 Elements of Law - Part One How legal rules develop in a social system Societal values are reflected in social norms Legal rules develop from social norms Norms can be developed collectively by the members of society Norms can be handed down from a higher authority, usually a religious one Legal rules differ from other rules Carry sanctions Are enforceable Are more crucial to society functions Create order, stability, certainty © 2007 Captus Press Inc. 4 Elements of Law - Part One Module 2 Law and Morality: Legal Justice © 2007 Captus Press Inc. What is justice? Justice is often seen as a morally right outcome But whose morality is right? Justice may be seen as fairness: like cases are treated alike Justice may be seen as order, predictability and fairness © 2007 Captus Press Inc. 5 Elements of Law - Part One Module 3 The Rule of Law © 2007 Captus Press Inc. Morally valid law as fair procedure laws should have general application laws must be proclaimed law should be prospective rather than retroactive laws should be clear © 2007 Captus Press Inc. 6 Elements of Law - Part One Morally valid law as fair procedure (cont’d) law should not be contradictory law should not make impossible demands law should be relatively constant law should be capable of enforcement law should be accessible Can ordinary citizens access the law to change it? Those with good networks and lots of resources have a much greater opportunity of influencing the government‘s legal and policy making initiatives. Only wealthy individuals or large corporations can afford to pursue legal remedies though our court system. © 2007 Captus Press Inc. 7 Elements of Law - Part One Module 4 Court Structure © 2007 Captus Press Inc. Our law developed from English experience Initially, most law was local, customary and decentralized Common law developed when a centralized judicial system developed as a part of centralized national government Judges discuss decisions and write them down creating the basis for a “law common to all of England.” English common law becomes the basis for the common law of Canada and the United States © 2007 Captus Press Inc. 8 Elements of Law - Part One Module 5 Sources of Law © 2007 Captus Press Inc. Sources of Law 1. 2. 3. 4. 5. 6. 7. 8. Statutes Subordinate or secondary legislation Case law or common law Practice and usage Custom and convention Scholarly legal writing Morality The Crown or Royal Prerogative © 2007 Captus Press Inc. 9 Elements of Law - Part One Steps in the legislative process Idea for legislative proposal Ministry review of proposal Minister approval Cabinet submission by minister Cabinet submission reviewed by Management Board of Cabinet Approved cabinet submission sent to Legislative Drafting Office First reading of the bill Steps in the legislative process (cont’d) Second reading Select or standing committee Committee of the whole house Third reading Royal assent Proclamation in force © 2007 Captus Press Inc. 10 Elements of Law - Part One Statute consolidation Consolidation resembles a kind of housecleaning, parts of statutes or whole statutes that have been repealed are deleted from the statute books Amendments to existing statutes, and statutes passed since the last revision are added. think of the statutory revision process as a reassembly of statues using scissors and paste, cutting out parts of whole statutes or statutes that have been repealed and pasting in new amendments to existing statutes and new statutes passed since the last revision How statutes are organized Long title and chapter number Preamble [optional] setting out basic principles Introductory sections: definitions, scope of act, power of officials administering it and other administrative matters Body of the act Housekeeping sections: proclamation date, regulation making powers, short title of the act © 2007 Captus Press Inc. 11 Elements of Law - Part One Subordinate or secondary legislation A statute must authorize secondary legislation Focuses on details allowing the purpose of the statute to be carried out Common law or case law the reasons for judgment in decisions made by judges judges applied the reasoning and principles of a previously reported case to a similar case currently efore the court The previous case is a precedent for the current case if it came from the judge’s own court, or from a superior court, the precedent must be applied. If it came from a lower court, or another jurisdiction, it need not be followed Stare decisis requires that a precedent case be followed © 2007 Captus Press Inc. 12 Elements of Law - Part One The law of equity The law of equity corrects unfairness from rigid application of precedent in the common law courts Equity law administered Originally in a separate court system Equity law now administered with common law in superior courts Where equitable and common law principles conflict, equity shall prevail To invoke equity, a party must have acted properly in the matters concerned in the case Equitable remedies, such as injunctions, are available when common law remedies are inadequate Minor Sources of Law Practice or usage Procedural pathways not authorized by law but generally accepted Custom and convention the activity has gone on for a long time, there has been no interruption or interference with the activity during that period Theoretical or philosophical writings of legal scholars Morality Crown Prerogative © 2007 Captus Press Inc. 13 Elements of Law - Part One Module 6 The Classification of Law © 2007 Captus Press Inc. Classification of law Positive state systems v. moral law Domestic law v. international law Public v. private law substantive and procedural law © 2007 Captus Press Inc. 14 Elements of Law - Part One Public law Criminal law Constitutional law Administrative law Taxation law Private law Tort law Contract law Property law © 2007 Captus Press Inc. 15 ...
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This note was uploaded on 01/16/2011 for the course ADMS 2610 taught by Professor Joshuasera during the Fall '10 term at York University.

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