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Unformatted text preview: Public Law I September 7, 2007 Important Announcements n Course kits can be purchased from the Keele Copy Centre, 4699 Keele St., 4166659675. n Main text book: Gerald Gall, The Canadian Legal System (in bookstore). ¡ n Recommended: Hogg’s Constitutional Law of Canada (quite expensive, but useful), and a writer’s guide (eg. Joanne Buckley, Fit To Print, or Scott and Garrison, The Political Science Student Writer's Manual, latest edition (details on the Political Science web page: www.arts.yorku.ca/politics) Academic Honesty: Academic Integrity Tutorial: ¡ http://www.yorku.ca/tutorial/academic_integrity/ What is law? n n n Is law a set of rules intended to govern behaviour? What makes law legitimate in a democracy? Can you understand law from a purely linguistic perspective? n What role is played by ¡ ¡ ¡ ¡ Judicial discretion? Discretion of lawyers? Interpretation by public servants and elected politicians? Interpretation by ordinary citizens? Schools of jurisprudence n Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart) ¡ ¡ n Natural law (Thomas Aquinas, John Locke) ¡ n The only law that exists is the written law Good judges can always interpret the positive law correctly There are “higher” laws that positive law ought to emulate. These higher laws might be created by religion, logic, or ethical principles. Judicial realism (Karl Llewellyn) ¡ ¡ Even if judges try to be impartial, the law can never be perfectly clear. W hat makes judges decide the way they do? Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars. Speluncean Explorers (Lon Fuller of Harvard) n n n n n Four men trapped by cavein. One suggested cannibalism. They chose the victim with a game of chance. The one who suggested cannibalism changed his mind. Nevertheless, he was chosen and sacrificed. The three remaining men survived, and were charged and convicted of murder. They appealed to a panel of five judges. one judge: apply the established law literally & convict (positivist) second judge: interpret the principles that ought to be behind the written law to acquit (natural law adherent, and also a judicial "activist") third judge: uphold the conviction, but appeal for clemency (“restrained,” uphold parliamentary supremacy) fourth judge: withdrew because he couldn't decide fifth judge: heard clemency route won’t work; consider the natural law approach because it leads to a just result. (This judge is a “realist”) Divisions of Law n n n n n n n n Divisions of law: Positive (written) law: domestic and international Domestic: substantive, and procedural or adjectival Positive domestic law: public and private Public law: criminal, administrative, constitutional, tax Private law: most important divisions are contracts, property and torts (private wrongs); many other types as well (see Gall) Common law system compared with civil law system Deductive (civil) vs. inductive (common); weight of precedent; reports of framers & la doctrine (civil) Sources of Law n Main sources of law: ¡ ¡ n n statute law (laws created by legislatures) case law (created by judges) Other (informal) sources: Ten Commandments, Magna Carta, canon law, writings of legal scholars (eg. Coke ~ 1630, and Blackstone ~ 1770), community standards (eg. obscenity cases), Hogg's text. primary and subordinate legislation n n n n n n ratio decidendi; obiter dicta common law judges "find" the law parliamentary sovereignty or legislative supremacy. Aggregate legislature can do anything Judicial supremacy. Judges have final say on the law and therefore are able to define what the law is and whether certain laws can be enacted crown prerogative convention or custom Terms and Concepts n n n What are "legal persons?” People, corporations, and governments What's the difference between negative and positive law? ¡ ¡ Negative law: prohibited from certain behaviours (crim. law) Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) [NOT same sense as judicial positivism] ...
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This note was uploaded on 02/14/2012 for the course POLS 3136 taught by Professor Bazowski during the Winter '10 term at York University.
- Winter '10
- Natural Law