cml2117 introduction to law 2008, lecture 2

Topics

Legal System&

Legal Philosophy

Law is...

Law is...

Rules

Acts intended to alarm Her Majesty or break public peace

49. Every one who wilfully, in the presence of Her Majesty,

(a) does an act with intent to alarm Her Majesty or to break the public peace, or

(b) does an act that is intended or is likely to cause bodilyharm to Her Majesty,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 49.

Reality

Rules → Reality

Reality → Rules

“Up to 35% of all PC software installed in 2004 was pirated.”

BSA study

RulesReality

Industry

Politics

Market forces

World events

Perceived reality

RulesReality

Industry

Politics

Market forces

World events

Perceived reality

RulesReality

Industry

Politics

Market forces

World events

Perceived reality

oo

o

o

o

o

o

o

Which rules?

Rules+ Regularity+ State+ Prescribed by HumansLaw

Philip S. James, 1969

Problems:� prescribed by humans?� always imposed?� authority of the state?

Jurisprudence

juris + prudentia

Legal Positivism

Natural Law

Natural Law

Common Law System

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right ofthe People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

United States Declaration of Independence, 1776

R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1.

MacMillan Bloedel v. Simpson (1994), 88 C.C.C. (3d) 148, 92 B.C.L.R. (2d) 1, [1994]

7 W.W.R. 259 (C.A.).

Historical Jurisprudence

Sumner

Savigny

Fuller

Law is Blind

Law is Blind

Legal Realism

Critical Analysis

� readings� Lon Fuller, “The Case of the SpelunceanExplorers”, Harvard Law Review, (1949) 62 (4): 616–645� To find it, Google “speluncean”

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