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LAW 30: Study Guide and Notes
 
The Foundations of the Canadian Legal System
 
The Foundations of the Canadian Legal SystemI. The Need for Law
As humans developed the institutions of community, the need for norms of organized and predictable behaviour to guide the relationships between individuals became increasinglyimportant. Behavioural norms of early social groups were based upon local customs and spiritual beliefs, enforced through the power of individuals or groups. These were usually founded uponcommon sense, and transmitted to new members of societies by word of mouth. As thesecustomary norms were adopted over long periods of time, they became accepted as laws, and became part of the social contract of the society.The increasing complexity of societies resulted in the need for more formal and complex behavioural norms, or laws. Inconsistent application and interpretation of law was common.Decisions about the laws made in one particular community would often contradict decisions inanother community, even when circumstances were similar. Despite this injustice, the needremained to limit the behaviour of individuals where such behaviour infringed upon the freedomof others, or was offensive to the community at large.In England, this led to the development of the common law. This system of recording cases andexamining precedent significantly improved the application of law and administration of justice,and continues to be an important facet of the Canadian justice system today. The quest for consistency and fairness in application of the law continues as a significant issue for individuals,institutions and societies.
II. Functions of Law
Formalized law serves various functions within a society. It is:A set of established rules of conduct, which serves to minimize or reduce possible conflicts, andas a means to settle conflict when it does arise:
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a set of pre-existing, impartial rules, based upon criteria, that can be used to judge andsettle conflicts
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a protection for individual rights and freedoms
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a protection for society by serving as a framework defining orderly conduct
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a mechanism of legitimacy for actions of the state
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a mechanism for defining and protecting private property
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A mechanism for allocating power within society.Law is the primary avenue to remedy injustice in a peaceful, orderly manner. In Canada, theConstitution empowers the federal government "to make Laws for the Peace, Order, and goodGovernment of Canada."
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