Law and Society

Law and Society : Chapter One Notes

We live in a world governed by law. No matter what we do, the legal system and its laws are part of everyday life. Our legal system strives to represent principles Canadians believe in and each generation influences the legal system by changing existing laws or bring in new ones. In 1982, for example, the Government of Canada enacted the Charter of Rights and Freedoms that guarantees certain rights to all Canadians, regardless of their age, race, ethnicity, religion, gender, or sexual orientation.
What Is Law?
There is no simple answer to this question. In our complex society, law regulates our social, political, and economic activities from birth to death. Laws restrict who we marry, who gets our money when we die, whether we can put a swimming pool in the backyard, at what age we can purchase certain products, and even what ingredients should be in our soft drinks. Laws can change with time and according to location. For example, laws passed today might be quite different from laws passed in 1867, especially with respect to women’s rights and equal opportunity.
The Need for Law
Laws permit us to live with other people in a safe and peaceful way. Disputes and disagreements are settled in court, not in the streets. If two people claim to own the same car, they do not settle the matter by dueling. Instead, the court decides on the rightful owner. In Canada, we believe in the Rule of Law, a three-part principle of justice. First, the Rule of Law means that individuals must recognize and accept that law is necessary to regulate society. Second, it means that the law applies equally to everyone, including people in power. And finally, the Rule of Law means that no one in our society has the authority to exercise unrestricted power to take away our rights except in accordance with the law.
Law and Morality
While some laws serve a practical purpose such as governing property rights, others reflect the moral values of the majority of society. However, the relationship of law to moral standards can be controversial. For example, do laws forbidding the possession of child pornography violate an individual’s freedom of expression? Laws based on morality suggest the values, attitudes, and beliefs that Canadian citizens hold in common.
Law and Justice
The ultimate goal of law may be to ensure justice for all, but what exactly is justice? Most Canadians would agree that equality is at the very heart of justice, but equality doesn’t necessarily mean applying the law equally to all people regardless of the situation. Should a person who breaks into an unoccupied cottage to get a rope to save a drowning friend receive the same punishment as someone who breaks into the cottage to steal the television? Underlying the concept of justice is the idea that that we should “treat like cases alike and different cases differently.” Another idea in justice is that the law should not discriminate on the bases of irrelevant characteristics-you should not be denied admission to a movie because you have blue eyes, for example. We also believe that justice should be impartial, that is, it applies to everyone regardless of a person’s income or status.
Historical Roots of Law
Written laws existed in early civilizations all over the world, and they had much in common. Laws concerning property rights, slavery, and the treatment of women and children were similar even in civilizations separated by great distances.
Canada’s legal system has been influenced by many earlier legal systems. Our jury process, for example, is a modern version of Greek juries. The role of the lawyer comes from ancient Rome and the French Civil Code, created under the French ruler Napoleon Bonaparte after the French Revolution, forms the bases of the Quebec Civil Code. Biblical law and the Ten Commandments forbidding murder, adultery, theft and the worship of false gods, has also influenced the development of Canadian law. Even ancient laws, such as the Code of Hammurabi, laws based on retribution-an eye for an eye- and the Great Laws of Manu from India have had some influence on the creation of our legal system.
Although Canadian law reflects aspects of earlier kinds of law, it is British law that has had the most influence in Canada. The Rule of Law, a fundamental principle in Canadian law, is from the Magna Carta, a charter of political and civil rights signed in England in 1215. The present-day adversarial system of justice, where evidence is presented by two opposing parties to an impartial judge, is based on trial by combat, a duel between two parties to determine who is innocent that was introduced in England in 1066. Our use of common law, is also a British tradition established during the reign of King Henry II (1154-1189). Prior to Henry II’s reign, there were no written rules to guide judges who traveled to towns and villages in order to hold court and resolve local disputes. The courts were known as assizes and the judges were called circuit judges. These judges had to rely on their common sense to determine what was fair and just. They eventually agreed that similar cases should be decided in the same way. This practice led to the principle known as stare decisis, a Latin phrase meaning “to stand by the decision.” The process of applying stare decisis developed into the rule of precedent used today. The record of these decisions formed the basis of common law, or case law, because the information was “common to all.”
Increasingly, Canada’s courts are recognizing the Aboriginal system of justice that emphasizes community involvement and rehabilitation as an alternative to prison. Aboriginal peoples have a long tradition of rules that have been passed from generation to generation in an oral tradition of storytelling and myths.