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Public Law I: Sept. 9/05

Public Law I: Sept. 9/05. Introductions “Open” class web page: www.yorku.ca/igreene For the WebCT web page, go to http://webct.yorku.ca (DON’T put in “www”) Activate your WebCT Account: go to the computing page from the York Home Page Use Internet Explorer to access WebCT

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Public Law I: Sept. 9/05

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  1. Public Law I: Sept. 9/05 • Introductions • “Open” class web page: www.yorku.ca/igreene • For the WebCT web page, go to http://webct.yorku.ca (DON’T put in “www”) • Activate your WebCT Account: go to the computing page from the York Home Page • Use Internet Explorer to access WebCT • Purpose of course • Course outline • Discussion Groups & Mock Trial: organization, activities, assignments • Kris Crawford-Dickinson will be here later in this class to explain in more detail

  2. Important Announcements • Course kits cost $50 (including tax) and can be purchased from the Keele Copy Centre, 4699 Keele St., 416-665-9675. • I have some course kits here, and can sell them to you after the class today (cash or cheque). Course kits are NOT available in the York Bookstore (typo in printed course outline) • Mail text book: Gerald Gall, The Canadian Legal System (in bookstore). • Recommended: Hogg’s Constitutional Law of Canada (quite expensive, but useful), and a writer’s guide (eg. Joanne Buckley, Fit To Print, orScott 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/

  3. 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? What role is played by Judicial discretion? Discretion of lawyers? Interpretation by public servants and elected politicians? Interpretation by ordinary citizens? Need to understand the system of justice What is law?

  4. Schools of jurisprudence • Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart) • The only law that exists is the written law • Good judges can always interpret the positive law correctly • Natural law (John Locke, John Rawls, Ronald Dworkin) • 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. What makes judges decide the way they do? • Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.

  5. Speluncean Explorers (Lon Fuller of Harvard) Four men trapped by cave-in. 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”)

  6. Hohfeldian Scheme: • If there’s a right held by one person, there’s a duty for someone else (usually a public official). • If there’s discretion, there’s no right. • 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)

  7. Main sources of law: 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 ratio decidendi; obiter dicta common = general common law judges "find" the law parliamentary sovereignty or legislative supremacy. Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone. crown prerogative convention or custom Sources of Law

  8. Terms and Concepts • 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] • Critical Legal Theory • a branch of “critical theory,” which examines institutions from the perspective of class analysis.

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