| Term | Definition |
|---|
| natural law theory: wht god says its is, based on morals...... legal positivism: what the ruler says it is, no moral basis..... legal realism: what the courts say it is, social moral values | law is |
| substantive law: the rules that govern behaviour and set limits on conduct.... procedural law: how rights and obligations are enforced... publich law: regulates our relationship with government.... private law: regulates personal, social and business relationships | functions of law |
| civil law: roman law justinian, codified, modified by napoleon, used in europe and most developing countries, quebec's legal system is based on the french civil code, COMMON law: great britain and commonwealth, judge made law: developed in the courts, based on precedent or stare decisis: judges are bound by previous decision of higher courts | origins of the law |
| common law: the precedent making decisions of the courts of great britain.... law of equity: decisions made by court of chancery...... statues: laws created by legislative bodies....... statute law: legislation overrides common law or judge made law.. often summarises or modifies common law (eg. criminal code and trepass act), includes government regulations | sources of law |
| formerly known as bristish north american act, section 91 and 92 divides powers between federal and provincial governments, structure of the judiciary system | constitution law (1867) |
| lists government enactments having constituional status (cut ties with England, entrenched charter of rights and freedoms, places some limitations on the supremacy of parliament) | constitution act (1982) |
| entrenches individual rights, protects individuals from infringement on their rights by government or their agents... charter of rights and freedoms: limitations on charter rights: section 1- interfence with right must be justifiable in a free and democratic society,,, section 32(1) b limits rights to relations between an individual and government.... section 33(legislatures can pass acts that infringe on rights "notwithsatnding" the charter but legislation must be reiewed every 5 years | charter of rights and freedoms |
| democratic right, mobility, legal, equality, language | personal freedoms |
| criminal and civil function, trail and appellate functions, federal courts, provincial courts, administrative tribunals | the courts |
| that state prosecutes the accused who is convicted only when state proves the case beyond a reasonable doubt, victims are merely witnessses at the trial, the state assessses and enforces penalties, victims are not compensates for their injuries | criminal function |
| private individuals ask the court to adjudicate a dispute, courts decision is based on balance of probabilities , court assesses liability and can enforce judgement | civil function |
| pretrial proceedings: writ of summon (plantiff)> appearance (defendant)> pleadings: statement of claim/ statement of defence/ counterclaim> chambers application | process of civil litigation |
| discovery (of documents and examination of parties), payment into court, purpose of pre-trial proceedings: provide opportunity and encouragement to settle before trial | pre trial proceedings |
| costs- party and party costs, solicitor client costs......... remedies: damages including general and specific,, punitive damages may also be awarded. accounting, injunction, specific performance, declaration of the applicable law | judgement |
| examination in aid of execution, seizure of property, garnishment of wages: attachment of debt... prejudgement remedies: injunction... limitation periods | enforcement |
| main methods: negotiation, mediation, arbitration | alternatives of court action |
| advantages: parties to dispute maintain control of the solution, disputant determine and schedule resolution processes, minimal costs associated with process, matters remain private, preserves good will.... disadvantages: courts have more power to extract information, fair process cannot be ensured, decisions do not follow precedent, agreements may not be enforceable, no public record of dispute or decision | alternative dispute resolution |
| parties discuss the problem with each other in ordre to find a solution, process requires cooperation and compromise and good communication skills, may be conducted through representatives, process may enhance relationship, agreement may not be legally binding | negotiation |
| neutral outsider helps party settle the dispute, communication facilitated by mediator: finds common ground, encourages concessions, mediator does not makes decision, mediation sometimes required before court will hear case, court may affirm mediated resolution, not the process to use when there is an imbalance of power or where blame or liability for injury must be determiend, parties must be willing to disclose information, forms of mediated process include minitrials and summary jury trials | mediation |
| parties agree on an independent third party to make a decision taht will be binding on the disputants, usually required by contract, procedure must be fair, artbitrators are specialists in the matter under dispute, decision of arbitrator is binding on the parties, decision cannot be appealed although procedure may be reviewd by the courts, process if private, faster, less costly than litigation, but more formal and more adversarial than mediation | arbitration |
| administrative tribunals include governmetn regulatory bodies or their agents that make decisions affecting the rights of other... the rights of people facing an administrative tribunal are covered by administrative law | administrative law |
| destermination of whether a rule has been properly imposed is based on judicial interpretation of the statue,,,,, rules of interpretation include golden rule: reasonable interpretation, mischief rule: specific purpose of rule identified, strict interpretation: must be clear and unambiguous | statutory interpreation |
| courts review: not the decision but the process by which it was made: all other remedies must be exhausted before courts will hear the case.... hears challenges to authority of decision maker, questions of procedural fairness, decision and remedy goes beyond power set out in legislation, decisions that involve errors of law | judicial review |
| prerogative writs: available when a duty to act fairly has no been met........ certiorari: nullifies administrators decision, prohibition: prevents a decision being made, mandamus: forces a decision, declaratory jugement: declaration of the law, after decision has been made, court may assess damages, grant compenstations, injunction- a court order to stop breaking the law: inappropriate when damage has already occured, government offices may be immune from injunctions, specific statue may modify rights, judicial review process may be streamlined by statue | methods of judicial review |
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