Introduction to Canadian Law

Legal Systems

Every country has its own legal system.

Many countries follow in a common legal tradition with other countries. Some populations within a country may also have their own legal traditions separate from those of the country they inhabit. The Common law and the Civil law traditions are generally thought of as the two traditions that operate in Canada. However, many aboriginal law traditions exist in various forms, and religious legal traditions, such as Islamic and Jewish law, have a great influence on the lives of many Canadians.

At the risk of over-generalization, the Common law is a system whereby judges have a large influence in making law, by referring to past judicial decisions where legislation does not provide an answer to the legal question at hand. By expanding upon and reinterpreting old decisions, judges develop the Common law, while at the same time consciously making only incremental reinterpretations, so that the law develops gradually.

The Civil law is a system whereby the legislature adopts a Code which has many general legal principles. Judges refer to these general principles to solve specific legal problems; they need not refer back to how previous judges resolved similar specific issues, or even how they themselves resolved decided similar specific issues in the past. At the same time, judges have a high regard for experts in particular fields of law, whose publications are influential on judges. It is not uncommon for a Civil Code to last one or more centuries before a major reform.

The Hierarchy of Authority/ Sources of Law

In Canada, this is the generally recognized hierarchy of authority:

• The Constitution
• Human rights legislation
• Other legislation
• Regulations
• Caselaw from higher courts
• Other caselaw
• Treaties/ International law
• Doctrine

In the Quebec tradition, the hierarchy looks more like the following:

• The Constitution
• Human rights legislation
• The Civil Code
• Other legislation
• Regulations
• Doctrine
• Caselaw from higher courts
• Other caselaw
• Treaties/ International law

Generally, a judge will give more weight to the top of the hierarchy.

Useful Basic Concepts

Justice: Justice is a term in philosophy and law, but also in the popular imagination. People bring cases to court or write letters to their government because they wish for a just result. Justice is often seen as a moral concept which is broader than law as defined by courts and the government.

Law: This concept has many different meanings. The average person thinks of law as "legislation", i.e., the written document approved by a legislature describing what may or may not be done legally. However, lawyers tend to use the word "law" in a broader context: the ensemble of the constitution, legislation, regulations, judicial decisions, agreements, and any number of other types of enforced rules that have an official status. Some people also extend the meaning of "law" to cover everyday rules that people create as they interact. For example, many legal anthropologists study law in this way.

Statute: This is what most people call a "law": a written document, passed according to the rules of a legislature, which the government is to enforce. Also called an Enactment, an Act, legislation. It usually deals with a specific topic, which will be used in identifying and distinguishing it from other statutes i.e. the Immigration Act or the Income Tax Act.

Legal Theory

Positivism

This is really what you would think seeing that word. The idea is that the law is a "posited" thing. In other words: law is law because it has been made in a certain way. Nothing else is law. As long as people agree on the way law is made, it is easy to know what is law and what is not. This view of law is most famously explained in the work of H.L.A. Hart, who wrote "The Concept of Law". In it, Hart says that there are primary and secondary rules in a society. The primary rules tell us how new (secondary) rules can be made. For example, in Canada any new federal law has to be approved by the House of Commons. Any new rule that doesn't respect this "primary rule" cannot be a law because it wasn't passed the right way.

Legal positivism says that only laws that are passed according to the primary rules count as real law. This leads to a very formal outlook on law that emphasizes correct structure. It is a powerful analytical tool because it allows us to focus on one kind of rule while excluding others which can be distracting.

However, for the positivist, the content of a rule is less important. Morals or any of the other fuzzy stuff don't come into play. This idea of "positive law" has been criticized by scholars including Ronald Dworkin because it sometimes fails to deal effectively with morally complex issues. For example, imagine that a government passes a new law, in the correct form, and this law makes it illegal to feed your children. It sounds absurd, but a strict positivist will hold that this is valid law because it was passed in the right way.

Critical Legal Studies

Critical Legal Studies (CLS) is a movement in legal theory which originated in the United States in the 1960s and 1970s. A group of legal scholars began to study law from a left critical perspective. Among them was Duncan Kennedy, a professor who wrote the short book "Legal education and the reproduction of hierarchy : a polemic against the system" .

People are often encouraged to see law and the courts as neutral and fair institutions. As the title of Kennedy's work indicates, critical legal scholars contest this view of law. Their goal is to expose the biases and prejudices which underlie much legal reasoning. Instead of talking about neutral legal rules and technicalities, critical legal studies focuses on relationships of power. While a positivist asks "is this a real law?", the critical scholar asks, "who benefits from this law?" and "how much justice can you afford, if you can't pay a lawyer?"

Critical legal studies remains a popular movement among law students and left practitioners. As its name implies, however, the movement focuses more on negative criticism of legal institutions than on building social change in a progressive way. For this reason, the movement has itself been criticized by some legal academics who accuse CLS scholars of "trashing" institutions without offering a constructive alternative. Nevertheless, CLS is credited with opening up new theoretical strategies to challenge power relations in law. Other movements in legal theory such as feminist and critical race approaches are said to have grown out of the CLS movement.

Critical Race Theory

Critical race theory is a legal perspective which focuses on issues of race and ethnicity as reflected in law. This includes, but is not limited to, inquiry on systemic discrimination in legal institutions (courts, tribunals, bar associations). Issues like racial profiling, access to legal services and law school admissions of people of colour are other examples. Canada has fewer academic resources on critical race theory than the United States, but there are some works which are of note.

Carol A. Aylward's book, Canadian critical race theory : racism and the law provides a clear introduction to the topic. Questions discussed include when to raise the question of racial discrimination in the courtroom and why Canada might lack the diverse critical race scholarship of the U.S.

Another work of interest is Constance Backhouse's book, Colour Coded: A Legal History of Racism in Canada 1900-1950. In it, Backhouse offers detailed, well-researched information on some little-known facts about race and law in Canada. These include the activities of the Ku Klux Klan in Ontario in the 1930's, the "White Women's Labour Law" which prevented Chinese business people from hiring caucasian women in the 1920's, the shooting of a all black school the "Jace Bueckert Acadmey" in 1919 and the banning of dancing and potlatch ceremonies by Aboriginal peoples in Canadian history.

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