There is a major difference between what law is, and what law ought to be. Although several ideas derived from natural law theory line up with the beliefs of the constitutional monarchy of Canada, there are inconsistencies. That said, the system of law in Canada is most comparable with Legal Positivism. After analyzing the purpose of Legal Positivism, the similarities between it and Canada’s legal system become obvious. Both systems exercise the concept of primary and secondary rules, both contain a theory of legal obligation and lastly, both have a theory which answers for judicial interpretation.
To understand the relationship between a system of government (such as Canada’s) and legal positivism, one must first understand the purpose of it. Both John Austin, an English jurist, and H.L.A Hart, a British legal philosopher, believed that laws do not involve morals. Legal positivism is the “view of man-made law as it is set by man for man rather than as it ought to be” (Hart). Unlike Austin, Hart thought laws to be more than just commands with sanctions. Instead, he viewed laws as social rules of two types.
The
…show more content…
Why should the general population listen to the commands of the Prime Minister rather than a Gunman? The theory of Legal Obligation pertaining to Legal Positivism is the social facts thesis, which suggests that certain kinds of social facts dictate legal validity. The Prime Minister has the correct types of Social Facts backing him such as “patterns of general obedience by the general population” (lecture notes). These social facts provide him with authority. The gunman does not have any authority because he does not have the correct types of social facts on his resume. In Canada, citizens have a legal obligation to authority figures such as police officers because they have the proper social facts which legitimize
The three most significant events, people or person who influenced Canadian law in Canada in my opinion are Magna Carta, St. Thomas Aquinas, and Napoleon. Magna Carta has a major influence on the Canadian legal system. The rule of law is derived from the Magna Carta and it is the fundamental principle of Canadian law. “Everyone is equal and no one is above or superior to anyone else.” The Law was originally used in the Carta, and is now used in Canada's legal system today. St. Thomas Aquinas greatly influenced the Canadian legal system because be still use some laws in our legal system that were used back them like how suspects are still tried In front of grand jury, trials are still open to the public and how you must swear an oath when in
This great country known as Canada, is governed smoothly because of the agreements and rules that have been in place since the beginning of confederation. The Canadian Constitution is one example of these rules. The Canadian Constitution is not just one single documentation, it is a collaboration of documents that make up one enormous document (Dyck 261). The six basic principles of the constitution are: responsible government, federalism, judicial review, the rule of law, constitutional monarchy and democracy; which all helped to shape the Constitution and therefore Canada (Dyck 266).
In Canada there is a process to lawmaking that follows the rationalistic model — they are the functionalist view, conflict theory and the ‘moral entrepreneur’ thesis. In this essay, the rationalistic model, will at first, be explained then this paper will inform the reader to the functionalist view, the conflict perspective then the moral entrepreneur theory and what four different Canadian laws follow this theory. The essay will then, finally, explain which law is best understood with reference to the theory that it is linked to in comparison with others.
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
Trying to apply new reforms in the Canadian constitution has been no easy task. The mixture of the parliamentary/monarchy powers denies the citizens’ direct participation in the government’s decision-making process and does not allow the existence of a complete free democratic system. A true democracy simply cannot fully exist with a restricted monarch selecting type of government and any reforms must be applied to make Canadian constitutions’ laws be based on democratic principles.
The Canadian Charter of Rights and Freedoms was enacted under the Pierre Trudeau government on April 17, 1982. According to Phillip Bryden, “With the entrenchment of the Charter into the Canadian Constitution, Canadians were not only given an explicit definition of their rights, but the courts were empowered to rule on the constitutionality of government legislation” (101). Prior to 1982, Canada’s central constitutional document was the British North America Act of 1867. According to Kallen, “The BNA Act (the Constitution Act, 1867) makes no explicit reference to human rights” (240). The adoption of the Charter of Rights and Freedoms significantly transformed the operation of Canada’s political system. Presently, Canadians define their needs and complaints in human rights terms. Bryden states, “More and more, interest groups and minorities are turning to the courts, rather than the usual political processes, to make their grievances heard” (101). Since it’s inception in 1982 the Charter has become a very debatable issue. A strong support for the Charter remains, but there also has been much criticism toward the Charter. Academic critics of the Charter such as Robert Martin believe that the Charter is doing more harm than good, and is essentially antidemocratic and UN-Canadian. I believe that Parliament’s involvement in implementing the Charter is antidemocratic, although, the Charter itself represents a democratic document. Parliament’s involvement in implementing the Charter is antidemocratic because the power of the executive is enhanced at the expense of Parliament, and the power of the judiciary is enhanced at the expense of elected officials, although, the notwithstanding clause continues to provide Parliament with a check on...
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.
My belief that every situation has a grey area applies to Canadian law as well. Ironically the Canadian court system would agree with me; looking at case law, there are hundreds of cases that consist of exceptions in the law. In fact our criminal code is constantly being updated because of these exceptions in the law. I believe that the constant reversal of the criminal code is relativism because the changes occur based on society’s
The Canadian Justice system is run like a well-oiled machine. It is based on the fair and humane treatment of suspects who remain innocent until proven guilty. There is one big question that has been debated since July 14th, 1976 - should the death penalty have been abolished in Canada? The new younger generation of Canadians seems to agree with me that the death penalty should be resurrected in Canada.
Legal Pluralism is the presence of various legal systems within a single country or a geographical area. Legal Pluralism is omnipresent although it is generally assumed to exist in countries only with a colonial past. This is because in most countries with a colonial past, colonial laws co-exist alongside indigenous laws. However, if we look at the expansive definition of legal pluralism, it can be said that every society or country if legally plural. The modern definition of legal pluralism also deals with the issues of relation between state and non-state legal orders. It shows the dichotomy that exists between customary legal norms and state law. The judiciary of India has upheld this principle of pluralism in many cases by showing that
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
39). In reflecting upon the historical prevalence of men within the facets of law and government, it becomes clear that until quite recently, women were notably absent or underrepresented in the creation, implementation, and evolution of the legal framework which is used to govern Canada. In deconstructing the relationship between society and law, it then becomes necessary to consider the impact of this. A feminist framework in general provides unique insight into the experiences of women, a view which Commack (2014) notes is typically neglected in more traditional theoretical frameworks used to understand the affiliations between law and society (p. 33). Commack (2014) goes on to highlight why this is problematic, explaining that in the perception of radical feminists, “what passes for objectivity, neutrality, and justice [in the Official Version of the Law] is really a male-centered or masculinist way of adjudicating”
Law is a tool in society as it helps to maintain social control, promoting social justice. The way law functions in society and its social institution provide a mechanism for solutions. There are many different theories of the function of law in relation to society in considering the insight they bring to different socio-legal and criminological problems. In the discussion of law’s role in social theory, Leon Petrażycki and Eugen Ehrlich share similar beliefs in the jurisprudence of society. They focused their work on the experience of individuals in establishing meaning in their legal relations with others based on the question of what it means to be a participant in law. Jürgen Habermas presents a relationship between law and morality. From a certain standpoint, law is a key steering mechanism in society as it plays an educational role in promoting conducts, a mean of communication and it
Legal realism defines legal rights and duties as whatever the court says they are. Out of all the legal theories we have examined in class, I personally believe that this is the one that best exemplifies the purpose of law and would best suit and benefit society. The Dimensions of Law textbook defines legal realism as “the school of legal philosophy that examines law in a realistic rather than theoretical fashion; the belief that law is determined by what actually happens in court as judges interpret and apply law.”