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Unit One:. Law and Society. The Dumbest Things Ever Said in Court. The following were posed by real-live lawyers and taken from court records (and borrowed from Duhaime.org ). “Was that the same nose you broke as a child?” “Was it you or your brother that was killed in the war?”
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Unit One: Law and Society
The Dumbest Things Ever Said in Court • The following were posed by real-live lawyers and taken from court records (and borrowed from Duhaime.org). • “Was that the same nose you broke as a child?” • “Was it you or your brother that was killed in the war?” • “Where you alone or by yourself?” • “So, you were gone until you returned?” • Lawyer, “What happened then?” • Client, “He told me, “I have to kill you because you can identify me” • Lawyer, “And did he kill you?”
Law in Our Lives With a partner, discuss the meaning of the following quotes. Now, choose the one that you feel best fits with your personal philosophy, and be prepared to explain your rationale. • “Where law ends, tyranny begins” William Pitt (British PM 1759-1806) • “Law is simply the rule of the stronger.” Plato (Greek philosopher) • “Law depends on its validity by having a penalty attached.” Jane Austen (British author, 1775-1817) • “Law is the highest reason.” Marcus Cicero (Roman orator, 106-43 BC) • “The more numerous the laws, the more corrupt the state.” Cornelius Tacitus, Roman advocate at law, 56-120 CE).
Law is Everywhere • List all the laws that you think might apply to these situations.
Canadian Laws • Canada’s legal system strives to represent principles Canadians believe in and value. Each generation influences this system and the laws that are passed reflect the society of the period.
When Was This Law Formed? • National divorce law • Prison rehabilitation laws • Canadian Charter of Rights and Freedoms • Same-Sex Marriage • NB ATV Law (Kids under 14 need to be supervised; kids under 16 need course) • No smoking in public places in Canada
Answers • 1960s and 70s • 1960s and 70s • 1982 (Charter) • 2005 (Same-Sex) • 2011 (ATV) • 2008 (No Smoking)
Why Study Law? • To ensure the legal system continues to work • Thoughtful, informed citizens • Capable of affecting meaningful change • Have insight and tools to influence change to reflect your generation • Be a better citizen
Rules vs. Laws • What’s the difference between a law and a rule? • Consequences are not enforced by the courts, with rules. • As a member of society, you can’t opt out of following a law, and you can’t change them on your own. • If you break a law, you will be punished: going to prison, paying a fine, paying compensation for damages.
Which is a Law and Which is a Rule? • Not smoking on school property. • Wearing your seat belt in your car. • Not buying cigarettes under the age of 19. • Not wearing your hat in class. • Turning off your cell at the movie theatre. • Not hunting deer without a licence. • Participating in a “Pyramid Scheme”
What is a Law? • Laws regulate our social, political and economic activities from birth to death. • They restrict who we can marry, who gets our money when we die, whether we can put a swimming pool in our backyard, at what age we can purchase certain products, what ingredients should be in our soft drinks. • Laws differ from nation to nation, province to province, and even city to city. For example, in come Canadian cities, you can make a right-hand turn when the traffic light is red. The same practice is illegal in other cities.
Really? • According to the Driver’s Handbook, you can make the right-hand turn, unless there is a sign telling you not to. • It’s illegal in Montreal, Japan and Denmark, for example. Can you find other examples?
Laws Change with time and Location • Laws passed today might be quite different from laws passed in 1867 (think women’s rights and equal opportunity). • Laws about snow removal in NB would not be necessary in Victoria, BC. • Laws reflect values as well as practical concerns, so they vary widely among provinces, states, countries and cultures.
Civil Law and Common Law • Canada is somewhat unique because it inherited Civil Law from the French and Common Law from the English. • Today Common law is applied in most countries settled or ruled by the British. In Canada, law in all the provinces except Quebec is based on common law. • According to British tradition, it has been the responsibility of Parliament to protect individual rights. This practice was followed in Canada until the passing of the Constitution Act, 1982, which set down individual rights along American lines in the Canadian Charter of Rights and Freedoms.
Canadian Charter of Rights and Freedoms (1982) • Normally courts are required to apply legislation as passed. However, the Canadian Charter of Rights and Freedoms, part of the Constitution Act, 1982, has given courts the responsibility of ensuring that legislation does not violate the individual rights.
British Common Law • British common law, also called traditional law, is law that has evolved from decisions of English courts going back to the Norman Conquest in 1066. These earlier decisions set “precedent,” which are used in future cases of a similar nature. Precedent can be overruled by new laws, or statutes, passed by the appropriate government.
Common Law in Canada Before 1867 • Newfoundland, Prince Edward Island, New Brunswick and Nova Scotia all followed common law before Confederation. The province of Canada, however, had begun as a French colony – New France – which used civil law. • After the conquest, the British guaranteed the survival of civil law in the Quebec Act, 1774. The Constitutional Act, 1791, however, split the province of Quebec into Upper (now Ontario) and Lower Canada (now Quebec). Lower Canada retained civil law; Upper Canada quickly switched to common law.
Civil Law • Civil law is the kind of law that evolved from Roman law, based on a written “civil code”. This was adopted in France after the French Revolution in 1789. Called the Code Napoléon, it covered only matters of private law: • • The legal attributes of a person (e.g.: name, age of majority) • • The relationship between individuals (e.g.: marriage, adoption, parentage) • • Property (e.g.: possession, land boundaries) • • The legal institutions governing or administering these relationships (e.g.: wills, sales, leases, partnerships)
Civil Law • Through plain language and the specific nature of each regulation, civil codes are intended to be easy to understand and apply. It does not rely on precedent to the same extent as common law. • The Civil Code of Québec is a general law that contains all of the basic “rules” that govern life in society, the relationships among citizens and the relationships between people and property • Today, civil law is used in many countries in Europe as well as in Quebec. • http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/CCQ/CCQ_A.html
The Civil Code of Lower Canada remained unchanged until 1955, when changes began to be made. By the late 1980s, it was realized that a major revision was required. A new Civil Code of Quebec came into force on February 1, 1994. • This new code takes some concepts from common law. It is still under debate as some of its regulations fall under the sphere of the federal government as determined by the British North America Act, 1867 (now renamed Constitution Act, 1867) and Constitution Act, 1982.
Laws Change With The Times: Laws in NB in the 19th Century • Husband and wife were one legal entity. A woman could not sue her husband if he abused her because that would be, in legal terms, suing himself. He alone had the right to determine the fate of their children, and, upon marriage, his wife’s assets and subsequent earnings were under his control. • When her husband died, a woman was entitled, under the law of dower, to a life interest in one-third of her husband’s estate. Often a widow became a boarder in her own home which passed into the hands of one of her sons. • (http://atlanticportal.hil.unb.ca/acva/loyalistwomen/en/context/world.html)
Old Maid • In colonial society, single women theoretically had legal status equal to that of men, but they rarely exercised it. Even those few women who had the requisite property qualifications were denied the right to vote and to hold public office. Referred to as ‘spinsters’ or ‘old maids,’ unmarried women who failed to make the transition from a young maid to housewife were often the object of scorn. (http://atlanticportal.hil.unb.ca/acva/loyalistwomen/en/context/world.html)
Slaves in NB’s History • Enslaved African Americans who lived in Loyalist New Brunswick were, by law, subject to the dictates of their owners, who sold them at will. • Slaves rarely had the opportunity to form stable families. Slave masters believed that they had the right to sexual relations with their “chattel” • Known primarily by their first names, slaves had few legal rights and were often treated brutally by their owners. • The life expectancy of slaves was short, due in part to the hard work they were forced to do and an inadequate diet. • (http://atlanticportal.hil.unb.ca/acva/loyalistwomen/en/context/world.html)
Punishment: Hanging • Much of the legal system was dedicated to protecting private property, hence the often severe penalties for crimes such as robbery, burglary and counterfeiting. Research on the subject is limited, but based on practices in other British North American colonies, guilty individuals could be hanged for property offences • The last hanging in Canada was in 1962. • (http://www.unbsj.ca/arts/hist/)
Branding, Whipping, Stocks • Other punishments included branding felons and whipping persons who had committed minor offences, or subjecting them to humiliating punishments such as the public stocks. In the aftermath of rioting among loggers and raftsmen along the Miramichi river in 1822, for example, a number of prisoners received fifty lashes or were placed in the pillory. • During the second third of the century, corporal and humiliation punishments were replaced by fines and imprisonment. This was a period in which servants and children were whipped by masters and parents, and when residents of county or municipal Poor Houses also were subjected to corporal punishment. (http://www.unbsj.ca/arts/hist/)
Juvenile Delinquents, 1908 • In 1908, the Canadian Parliament enacted the Juvenile Delinquents Act, which placed children and youth ’in conflict with the law’ under a new legal status: juvenile delinquency. • Youth were to be excluded from adult lockups, courts and jails as much as possible, but could be prosecuted, fined, placed on probation or even sentenced to a reformatory for being disobedient to parents or guardians.
Cases From NB • Read the case that is assigned and summarize (who, what, when, where, why and how). • It what ways does this case differ from the law, as you know it, in 21st Century NB?
The Need For Law • To some extent, laws permit us to do that by giving us a certain amount of predictability and a structure for creating a safe and peaceful society. • Laws against criminal conduct safeguard our property and protect us from violence. • Disputes and disagreements are settled in the courts, not in the streets. • Some societies enforce law through intimidation, and citizens can be arrested and imprisoned without trial. • In Canada, we expect law to protect the rights of individual citizens.
The Rule of Law • A three-part principle of justice • Individuals must recognize and accept that the law is necessary • The law applies equally to everyone, including people in power • No one has the authority to exercise unrestricted power to take away our rights except in accordance with the law.
Roncarelli v. Duplessis • Read the case study and answer the two questions • Page 13
Law and Morality • Some laws reflect the moral values of the majority of society. The relationship between laws and moral codes can be controversial. • Ex: Should it be against the law to help a loved one die when he or she is suffering from a terminal illness? It is in Canada. • Ex: Should abortion be a criminal or medical matter? • Ex: Is it acceptable for parents to physically discipline their children? • Ex: Why does society regulate tobacco and alcohol but consider other drug use criminal?
Canada’s Marijuana Laws • http://www.cannabisculture.com/v2/content/2011/04/13/Ontario-Judge-Rules-Canadas-Marijuana-Laws-Unconstitutional • Videos
Right and Wrong: Says Who? • In a multicultural, democratic society, tension may exist between the law and personal and community standards of right and wrong. • Although Canadians have always been divided in their support for capital punishment, in 1976 the gov’t abolished the death penalty. • Sometimes the democratic will of the people challenges Parliament to change laws to represent the moral values of society. For example, society has become less tolerant of people who drink and drive, resulting in increasing penalties and a wider range of charges. In NB, the legal limit just dropped from .08 to .05 as of May, 2011. • http://www.cbc.ca/news/canada/new-brunswick/story/2011/05/27/nb-drunk-driving-laws-trevors-926.html
Law and Justice • The idea of law has always been associated with the idea of justice. What exactly is justice? What do we mean when we say we want to live in a “just” society? • Discuss with your group and see if you can come to a consensus, to share with the larger group. 3 mins
Law and Justice • The concept of justice has varied from age to age. Ancient Greece society did not consider inequality an injustice; it was just the way society was structured. • Today, Canadians would place equality at the very heart of justice. • The law is supposed to be applied equally to all, regardless of financial status, age, gender or race. All kids should have the right to education, all citizens have the right to vote.
R. v. Dudley and Stevens • Read the case study on page 15. • Answer questions 1 and 2. • Discuss your answers
Justice • Because our ideas of justice originate from our moral convictions and our values, attitudes and beliefs, all change over time. • We do have to agree on certain characteristics. • We should “treat like cases alike and different cases differently.” (A charge of disturbing the peace would be handled differently if the accused has Tourette’s Syndrome. Is that fair? Just?)
We consider a law unjust if it discriminates on the basis of irrelevant characteristics. You might be ok with being refused entrance to a restricted movie if you didn’t have proof of age, but if you were denied based on the color of your eyes, you would likely not be ok with that. • Justice should be impartial; laws should be applied regardless of a person’s position or financial status. • We expect the law to be just in that it conforms to society’s values and beliefs. For example, if the federal gov’t wanted to strengthen law enforcement by requiring all Canadians to have a sample of their DNA take at birth, some people might oppose because it’s a violation of their right to privacy. Whether or not the legislation got passed would depend on society valued protection over privacy.
Is there justice for the rich and famous? • Brainstorm some examples of when celebrities / people in power / with money have been grabbed by the long arm of the law. • Brainstorm some examples of when privilege and power seem to helped individuals get away with murder (or something else).
Examples • Italian Prime Minister Silvio Berlusconi • Brian Tobin’s son, Jack • Conrad Black • Martha Stewart • Michael Jackson • Paris Hilton • OJ Simpson • Ted Kennedy
“MacIsaac Discharged for Fiddling with Pot” • Read the case study (page 16) • Answer the two questions • Discuss
Do you know your stuff? • Why do you think it’s important to study the laws of your country? • How do rules differ from laws? • Why do we need laws in society? • Identify the three aspects of Rule of Law. • What is the relationship between law and morality in Canadian society? • Use your own examples to explain each of the four agreed-upon characteristics of justice.
Part Two: Historical Roots • Laws in the form of community-enforced rules have existed from the time people started to interact. Early communities created laws related to hunting, ownership of property, family relationships, and responsibilities. • Most were based on common sense or practicality and were passed on by word of mouth to future generations. As people started to trade with other nations, laws became more complex and it was necessary to put them in writing.
Great Laws of Manu • Between 1280 and 880 BC, lawmakers in India recorded the Great Laws of Manu: compiled laws passed on for generations, in oral tradition. China also had a set of written laws – The Chinese Code of Lik’vei, written around 350 BC (theft, robbery, prison, arrest). • Laws around the world have much in common: property rights, slavery, treatment of women and children (similar despite great distances). Many of these have affected Canada’s present legal system.
