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GMGT: 3300 Comm Law Midterm > Legal Systems, Common Law, Civil Law > Flashcards

Legal Systems, Common Law, Civil Law Flashcards

1
Q

Systems of Law:
Black’s Law Dictionary of system

A

Orderly combination of particulars parts into a whole, according to some rationale or principle

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2
Q

Legal System in Contradistinction from one another

A

differentiate that rationale/principle around which laws & legal decisions are ordered

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3
Q

Judges during a trial 3 main steps

A
  1. What are the facts of the case
  2. Apply an appropriate legal principle to resolve matter
  3. result with a remedy
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4
Q

System of Law Summary

A

organization and application of principles or laws that the judge will use to adjudicate a case

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5
Q

Law Systems present in Canada Provinces/Territories

A

Common law system in provinces except for Quebec as colonized by the French (civil code) (Quebec Act)

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5
Q

What is the essence of the civil law system

A

Existence of the codes

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5
Q

Black’s Law Dictionary of Codification

A

process of collecting/arranging laws of a country into a code. Complete system of positive law, scientifically ordered and promoted by legislative authority

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6
Q

How was a code used in Roman/Byzantine Empire, or Justinians, and Napoleon Bonqparte?

and what if code does not cover the problem?

A

Code was always referred to, to access a principle to settle a dispute.

court free to settle the problem from the introductory general principles. Does not have to follow reasoning in similar case, reviewed by second court

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7
Q

What is not included in civil law system and what type of system is it

A

no doctrine of precedence in civil law system and is a deductive system

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8
Q

Describe Weaknesses of Civil Law and how they are addressed (2)

A
  1. Absence of doctrine of precedence so certainty of law removed and can lead to chaos and unfairness
    Addressed by: revisions and adjustments to the code
  2. In new areas of development where no specific principles, judges do whatever they want
    Addressed by: Tendency of courts to apply precedence: Lawyers argue them and judges read them (more certainty and predictability)
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9
Q

Common Law System

A

Common law courts look to the past decisions of courts to synthesize the legal principles of past cases. Court created law and statutory laws

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10
Q

Why did Common law use oral history

A

people could not read at the time so it gave them level of legitimacy and spoke of precedent cases.

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11
Q

What did common law become based on and what was it preferred over

A

based on precedence that was organized and became preferable over civil law system

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12
Q

Stare decisis

A

doctrine of precedence - stand by previous decisions

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13
Q

Ratio decidendi

A
  • narrowest and necessary legal principle upon which a judicial decision was based.
  • lawyers look for in precedence cases
  • interpret and identify so lack of interpretation
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14
Q

Rupert Cross’s Jurisdiction

A

every court is bound to follow any case decided by the court above it in the hierarchy of course, and the appeal are bounded by their own decisions, except in Supreme court of Canada. SPCC Does not indicate only binding part of the case, the ratio

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15
Q

3 contributor factors for the common law system to be effective overtime

A
  1. Literacy amongst general population and judges themselves
  2. System of publishing precedent cases (law reports)
  3. Wide spread of printings
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16
Q

What are Law Reports

A

Published reasons for judgements given by a judge

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17
Q

What is contained in Law reports (3)

A

Has individual case reports
1. summary of law
2. Discussion of law
3. Resolution of case

18
Q

Two aspects of the stare decisis

A
  1. Definitional
  2. Structural
19
Q

Stare Decisis Component - Definitional or Substantial (3)

A
  • principle of law found in ratio decidendi and is binding aspect of case
  • stand by prior decision with judges review
  • subject to argument and debate
20
Q

Stare Decisis Component - Structural
what precedent cases do we follow? hint name is RC and wrote book

A

Rupert Cross: every court is bound to follow any case decided by a court above it in the hierarch of courts and appeal courts are bound by their own decisions save and except court of Canada and house of lords

21
Q

Order of a case in court (4)

A

Trial Court, Appellate Court, Appeals Court, Final

22
Q

Hierarchy of Jurisdiction highest to lowest (5)

A

JCPC
Supreme Court of Canada
Court of Intermediate appeal
Court of Queen’s Bench
Provincial Courts

23
Q

JCPC what does it stand for? When did it end and what was it?

A

Judicial Committee of the Privy Council, ended in 1949 but still can be binding precedence, was originally final appellant court

24
Q

Supreme Court of Canada - what is it and what if case comes from Quebec

A

Final appellate court for all jurisdictions in Canada (Unifying function), If Quebec then case heard from 3 Quebec judges

25
Q

Court of Intermediate appeal - how many days exercised

A

Court of Manitoba Appeal - exercised in 30 days

26
Q

Who appoints the court of queen’s bench

A

Appointed by Federal Government

27
Q

Provincial Courts - what are they and who appoints them

A

narrow jurisdiction etc family court, juvenile court, small claims, traffic and all appointed by provincial government

28
Q

Justification for the doctrine of stare decisis - historical

A

Application of old principles to new circumstances that give appearance of change <- Change comes from legislature

29
Q

Justification for the doctrine of stare decisis - Modern Definition (the 3 C’s)

A

application of stare decisis produce certainty, consistency and continuity

30
Q

Justification for the doctrine of stare decisis
Certainty

A

we must know what the law it

31
Q

Justification for the doctrine of stare decisis
Consistency

A

equality of treatment is sought with similar cases being treated similarly

32
Q

Justification for the doctrine of stare decisis
Continuity

A

avoid introducing doubt into the law through judicial departures from past precedent

33
Q

Reliance Principle

A

People order their affairs in reliance on judicial decisions and so interest affected if judges alter principles

34
Q

2 problems with the doctrine of stare decisis

A
  1. courts make an error and bad principle then it persists for a long time
  2. Principles or ratios in common law system aren’t clear as are interpreted or interpolated
35
Q

Stare Decisis emergence from custom to law (3 main reasons)

A
  1. Industrial revolution
  2. Intellectual Rationally and positivism
  3. Commercial printing press
36
Q

2 Main jobs of legislative courts

A
  1. Institution of dispute resolution (most formal)
  2. Common Law: Create law
37
Q

5 Roles of Court Disputes (5)

A
  1. Arbitrator of constitution
  2. Interpreter of legislation
  3. Protector of civil liberties
  4. Arbitror of private persons disputes
  5. Arbitror of public law disputes
38
Q

Arbitrator of the constitution
- describe levels between Canada and Provinces

A

Canada is a quasi federal country in a federal system so government of two levels each independent and assigned different jurisdiction

Federal Powers: GST, Military, Post Office, Currency, National Defence

Provincial Government: Health Care, Education, Highways, Liquor etc

39
Q

Interpreter of Legislation main role

A

give meaning to terms in context of disputes and ratio decendi

40
Q

Interpreting legislation 3 main steps and describe

A
  1. Plain Meaning - dictionary definition
  2. Mischief/liberal approach - look at the object of the statutes in context was created
  3. Golden Rule: plan approach and if necessary go to liberal approach
41
Q

Protector of Civil Liberties - what did they create
list some freedoms

A

freedom of individual in politics and religion
1. Freedom of expression, speech, press, association, arbitrary arrest
2. right to religion, fair trial etc

42
Q

Why is the Parliament Supreme and can it override civil law

A

Parliament has last word & laws are supreme (cannot override civil law)

43
Q

1982 Trudeau Government Release rules with Charter of Rights
- relate to people
- relate to supreme court of canada

A

Charter of rights, gives supreme court of Canada final decision making power and protects people from government and parties

44
Q

Arbitror of disputes between private persons:
what type of law and what did it give rise to ?

A

private law, court law for disputes to be resolved
give rise to contract law, tort law and family law

45
Q

Arbitror of public law disputes (list types of law)

A

government on one, include criminal law, constitutional law, and administrative law

GMGT: 3300 Comm Law Midterm (10 decks)

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