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hence law is intellect without appetite (Politics, 1287a31) ... Written v.s Unwritten Constitutions. British Constitution is 'unwritten. ... – PowerPoint PPT presentation

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Title: Law

Chapter 6
  • Law

  • Law in the broad sense regularity in the
    behaviour of any element in the universe. E.g.
  • Laws or regularities make the world intelligible
  • Yet, there is a subtle change in the character of
    law as one ascends the hierarchy of beings

  • Higher levels (of beings) have greater element of
    self-guidance or freedom in the way they follow
  • Planets
  • Crops
  • Animals
  • Humans
  • Angels?
  • God?

  • humanLaw a rule of human conduct that is
    enforced by the community, by means of coercion
    or violence if necessary (61).
  • Law should embody the sense of the community

  • Aristotle One who asks law to rule, therefore,
    is held to be asking god and intellect alone to
    rule, while one who asks man to rule adds the
    beast. . .hence law is intellect without appetite
    (Politics, 1287a31)
  • Yet, not all things having to do with political
    life can be encompassed by laws (when to go to
    war, for e.g.). It seems we must have a mix rule
    of law and rule of men.
  • Law has limitations it cant deal with
    particulars, it must be very general.
  • It cant foresee exceptions to the rule
  • Need prerogative in executive, and judges in

Types of rules aside from law
  • Habit purely personal rule of conduct
  • Custom generally accepted practice or behaviour
    developed over time
  • Textbook suggests that customs are not enforced
    by coercion. Is this true? What about shame?
  • What about political correctness, what is that?
    Where does it get its power? What kind of power
    is it (coercion, persuasion, authority?) recent
    cases in media

Law Enforcement Four roles
  • Retribution punish those who commit crimes
  • Restitution compensate those who have been
    harmed by rule breakers
  • Rehabilitation change in conduct (and character)
    that will prevent law breaking in the future.
  • Restraint physical restraint (prison) or fear of
    punishment (deterrence) meant to prevent crime.

Customary Law Common Law
  • Customary law law which arises gradually and
    cannot be traced to an identifiable moment in
  • Common Law comes about from the deliberate
    recording and collection of laws that have been
    around from time immemorial. Specifically, the
    sum of a vast number of court cases decided by
    English courts since the Middle Ages.
  • Most of these cases were not decided by reference
    to written law but y reasoning based on needs of
    ordered liberty.
  • Task of a common law judge is to discover the
    law, not to invent it.

  • Legislation consciously formulated, deliberately
    constructed (and passed by a recognized authority
    in society, e.g. parliament, provincial

  • Conscious creation of law may result in
  • Statute (a particular piece of legislation)
  • A code of law (a comprehensive set of
    interrelated rules)
  • There has been less Codification pf law in
    countries that have a common-law background
    (England, US, Canada)

Private Law
  • Private Lawcontrols relations between
    individuals, e.g. contracts, family law, etc.
    Most property and civil laws covering legal
    relationships between individuals in Canada are
    provincially legislated.
  • Private law in Quebec was systematized (codified)
    in the code civil of 1866, based on the French
    Code Napoléon or Civil Code. It contained a
    comprehensive statement of rules and general
  • A new Civil Code was enacted in 1991 and has been
    in force since 1994.
  • Courts in Quebec first look to the Code and then
    refer to previous decisions for consistency and
  • Other provinces employ common law courts look
    first to any legislation that may have been
    enacted, and then to previous decisions. In the
    absence of legislation, judges interpret the
    common law for guiding future decisions.

Public Law
  • Public Lawincludes constitutional,
    administrative, and criminal law

  • Sources of Law (statutes)
  • Parliament
  • Provincial Legislatures
  • Delegated Law
  • Orders in Council (formal decisions of the
    Federal Cabinet)
  • Regulations (Rules created by a minister of
    government department or by an independent
    government agency)
  • By-laws (rules passed by local government)

  • Positive Law Man-made law
  • law whose authority resides primarily or only
    from the fact that it was made by the proper
    human authority (Canadian Parliament, for e.g.)
  • Simple example Canadians must drive their cars
    on the right-hand side of the road. In Britain
    they drive on they left side of the road.

  • Natural Law law that transcends (stands above
    and apart) from the state and the will of the
  • Natural Law can be known by human beings
  • Natural Law implies that there are some actions
    that are simply right (or wrong) by nature,
    independent of anyones opinion.
  • Or, that there are some things which human beings
    cannot make right or wrong through their own
  • Natural Law does not mean that everyone clearly
    knows what is right and wrong in every situation.

  • Natural (Human) Rights rights that all human
    beings are supposed to enjoy simply by virtue of
    being human.
  • The rights to life, liberty, and security of
  • Unlike Natural Law, Natural rights dont
    necessarily prescribe duties (seek truth).
  • They usually express negative relation to
    authority humans should be free from
    persecution, free from torture, free to marry
    (but are not required to do so), etc.

  • What natural law and natural rights have in
  • Law is not just the command of the sovereign
    enforced by the machinery of the state
  • the state can be held to unchanging standards of
    morality and justice.
  • E.g., Martin Luther King Jr., Letter from a
    Birmingham Jail

Letter From a Birmingham Jail 1963
  • You express a great deal of anxiety over our
    willingness to break laws. This is certainly a
    legitimate concern. Since we so diligently urge
    people to obey the Supreme Court's decision of
    1954 outlawing segregation in the public schools,
    it is rather strange and paradoxical to find us
    consciously breaking laws. One may well ask "How
    can you advocate breaking some laws and obeying
    others?" The answer is found in the fact that
    there are two types of laws There are just and
    there are unjust laws. I would agree with Saint
    Augustine that "An unjust law is no law at all.

  • Now, what is the difference between the two? How
    does one determine when a law is just or unjust?
    A just law is a man-made code that squares with
    the moral law or the law of God. An unjust law is
    a code that is out of harmony with the moral law.
    To put it in the terms of Saint Thomas Aquinas,
    an unjust law is a human law that is not rooted
    in eternal and natural law. Any law that uplifts
    human personality is just. Any law that degrades
    human personality is unjust. All segregation
    statutes are unjust because segregation distorts
    the soul and damages the personality.

Chapter 7 Constitutionalism
  • Constitution set of fundamental rules by which a
    state is organized. The fundamental law of the
  • Establishes the branches of government and their
    respective powers and responsibilities
  • Allocates power to levels of gov.t
  • (sometimes) enumerate the rights of citizens
  • Stipulate a procedure for amending the

  • Constitution can include written rules,
    enforceable in court, and also conventions.
  • Conventions practices or customs that are
    consistently followed even when not legally

Written v.s Unwritten Constitutions
  • British Constitution is unwritten. There is no
    single document called The British
  • Many of the most important institutions of
    British government rest not on law but on
  • Technically, there is no fundamental law which is
    beyond the power of British parliament to change.

U.S. Constitution
  • U.S. Constitution the oldest surviving written
  • Deliberately crafted by a committee which met in
    Philadelphia in 1787.
  • Had to be approved by ratifying conventions in at
    least 9 of the original thirteen colonies
  • Created a federal system a national government
    and the state governments (both trace their
    authority back to the same source).
  • Sets out an amending formula which was intended
    to be difficult, making constitutional change
    slow and arduous.

Canadian Constitution
  • Hybridhas a written core, but much of
    constitutional practice is conventional
  • Written core Constitution Act of 1982, includes
    an amending formula. (Prior to 1982,
    constitutional amendments had to be submitted to
    British Parliament.)
  • Schedule I to Constitution Act lists 31 statues,
    orders in council. etc, that are now recognized
    as fundamental law
  • One such statute is the British North America
    Act, 1867. British Law (passed by British
    Parliament) that united Upper Canada (Ontario),
    Lower Canada (Quebec), Nova Scotia, New

  • The first 34 sections of the Constitution Act,
    1982 are collectively called the Charter of
    Rights and Freedoms.

  • Constitution Act, 1982 not ratified by Quebec.
  • Demands made by Quebec (box.7.2)
  • The history of constitutional wrangling in Canada
  • Meech Lake, 1987offers to recognize Quebec as a
    distinct society. Failed because not ratified
    by Manitoba and Newfoundland

  • Charlottetown Accord, 1992. Second attempt to
    ameliorate Quebecs demands. Instead of going to
    Provincial Legislatures for ratification, it goes
    to people of Canada (referendum). Defeated in six
    provinces with 55 of Canadians voting no.

  • Charter of Rights and Freedoms
  • Enhances the role of the courts
  • Courts now allocate power and deny power on the
    basis of the Charter.

  • Constitutionalism
  • An extension of several political principles
  • the principle of the rule of law (everyone is
    under the law)
  • Popular sovereignty the Constitution somehow
    represents the will (or reason) of the whole
    community. No fundamental changes can be made
    without consulting a significant part of the
  • Limited government Government is not the
    controlling force in society, it is an instrument
    within it and its role is limitedsome actions
    are put beyond the scope of government (Charter
    of Rights).