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Introduction To CLS (Brief - 2nd Edition) - Chapter 2

The document summarizes three main legal systems - common law, civil law, and indigenous law. It describes the origins and key features of common law in England and its use of precedents. It also outlines the origins and features of civil law which evolved in Europe and is codified in civil codes. Finally, it discusses indigenous law in Canada, its historical suppression but growing recognition, especially after the Truth and Reconciliation Commission report.

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9 views12 pages

Introduction To CLS (Brief - 2nd Edition) - Chapter 2

The document summarizes three main legal systems - common law, civil law, and indigenous law. It describes the origins and key features of common law in England and its use of precedents. It also outlines the origins and features of civil law which evolved in Europe and is codified in civil codes. Finally, it discusses indigenous law in Canada, its historical suppression but growing recognition, especially after the Truth and Reconciliation Commission report.

Uploaded by

derin
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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NOTICE

COPYRIGHT DISCLAIMER

This PowerPoint presentation is copyright protected. Individuals who


have adopted the related Emond Publishing textbook for their course
are granted permission to use this presentation for instructional
purposes only. Slides may not be distributed under any kind of Open
Access style license, or website, or be duplicated, copied, sold, or
otherwise exploited for any commercial purpose without Emond
Publishing’s express written consent. Thank you.
A Brief Introduction to Law in Canada, 2nd Edition

CHAPTER 2
Common Law, Civil Law, and
Indigenous Legal Systems
A Brief Introduction to Law in Canada, 2nd Edition 3

Learning Outcomes
• After reading this chapter, you will be able to:
• Describe the common law’s origins and defining
characteristics.
• Describe the civil law’s origins and defining
characteristics.
• Understand how the common law and civil law systems
compare and their relevance in the Canadian context.
• Recognize some of the measures taken in Canada to
harmonize the common law and civil law systems.
• Understand the increasing significance of Indigenous law
in Canada and how it may be recognized in the future.
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 4

Introduction
• World legal systems reflect the diverse history of the world’s
peoples
• Why learn about other legal systems?
• Multiculturalism, trade, globalization

• Comparative law categories:


1. Common law
2. Civil law
3. Customary law
4. Religious law (primarily Islamic law or sharia)
5. Indigenous law
6. Mixed or hybrid systems
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 5

Common Law
• System used in most of Canada

• Two primary sources of law:


(1) legislation, and (2) case law
• Defining feature: Judges follow precedent

• Prior to the 1066 Norman invasion, no centralized


nationwide justice system existed in England
• William the Conqueror: Unification and centralization
contributed to the formation of the common law system
• Curia regis
• King’s peace
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 6

Common Law (cont’d)


• Development of a royal court system
• Writ system (common law rules)
• Court of Common Pleas [civil and landholding disputes]
• Court of King’s (Queen’s) Bench [criminal matters]
• Exchequer Court [revenue matters involving the king]

• Equitable justice (equitable rules)


• Court of Chancery: Established later, to grant relief on
grounds of equitable justice outside the writ system;
parallel system of civil procedure
• 1873: Judicature Acts unified courts under one single court
system
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 7

Common Law (cont’d)


• Chief features of Common Law:
• Use of precedents: Judges apply earlier judicial
decisions to present cases if facts and law are
similar
• Principle of stare decisis (“to stand by decided
matters”)
• Adversarial court process: Truth will best be
determined when opposing lawyers present their
cases without interference from the trial judge

Copyright © 2021 Emond Montgomery Publications. All rights reserved.


A Brief Introduction to Law in Canada, 2nd Edition 8

Civil Law
• Evolved in continental Europe

• The civil code is the primary source of private law


• Precedents are used but are NOT binding

• Origins of civil law


• Code of Hammurabi
• 534 CE: Emperor Justinian codifies Roman law in
Corpus Juris Civilis
• Renaissance: Renewed interest in classical learning
• 1804 French Civil Code (“Napoleonic Code”) influenced
Quebec’s first code (1866) and the current Civil Code of
Quebec (1994)
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 9

Indigenous Law
• 2015: Truth and Reconciliation Commission of
Canada (TRC) recommendation
• Government support of implementing the United
Nations Declaration on the Rights of Indigenous
Peoples (UNDRIP)
• See Box 2.4
• There are many reasons Indigenous law lost its
influence after colonization
• Imposing order on Indigenous peoples that was
not their own
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 10

Indigenous Law (cont’d)


• Since TRC report and UNDRIP, Indigenous legal
traditions are widely acknowledged
• 2019–2020: Wet’suwet’en pipeline protests
• An interconnection between Indigenous law and
Canadian law exists but to improve and expand
that connection, more education is required

Copyright © 2021 Emond Montgomery Publications. All rights reserved.


A Brief Introduction to Law in Canada, 2nd Edition 11

Key Terms
• Aboriginal law, 44 • Civil Code of Quebec

• adversarial system, 36 (Code Civil du Québec),


40
• bijural, 29
• civil law, 29
• Bill of Rights (1689), 36
• common law, 29
• binding, 33
• Corpus Juris Civilis, 39
• Chancery, 30
• Court of Chancery, 32
• civil code, 37
• Court of King’s (or
Queen’s) Bench, 31
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
A Brief Introduction to Law in Canada, 2nd Edition 12

Key Terms (cont’d)


• distinguishable, 34 • king’s peace, 31

• equity, 32 • modern treaties, 51

• feudalism, 30 • persuasive, 34

• historic treaties, 51 • precedent, 33

• Indigenous law, 30 • ratio or ratio decidendi,

• Inns of Court, 33 33

• inquisitorial system, 41 • stare decisis, 33

• writ, 32

Copyright © 2021 Emond Montgomery Publications. All rights reserved.

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