The development of laws in Western countries has not been a straightforward path, theorists, realists, and positivist all define law in different ways. Natural law theorists define Law in moral terms; they believe only good rules are considered law. Legal positivists defined law by looking at its source; this group believed that only the rules enacted by people with authority qualify as law. A third group, legal realists, defined law in practical terms, stating that only those rules that the courts are willing to enforce qualify as law.
But it was the legal positivists helped shape the concept of the Canadian legal system. In Canada, parliamentary supremacy requires the federal Parliament or provincial legislatures to enact laws, which are the primary law source.
Today, we deal with rules everywhere, at the office, at work elsewhere, at college or university, and even at home. However, the laws of the land are only those rules the courts give effects to and enforce. A person dealing with government agencies, such as labour relations boards, workers’ compensation boards, or city and municipal councils, must recognize that these bodies can also render decisions in matters that come before them. The rules enforced by these bodies are also laws within this definition (Yates, 2019).
Substantive and Procedural Law
The primary categories of laws in Canada are substantive and procedural law. Substantive law establishes an individual’s rights in society and limits their conduct, the latter determines how the substantive laws will be enforced. Some examples of substantive law are:
- Mobility rights
- Rights to travel
- To vote
- Own property
Prohibitions against theft and murder and other actions that harm our neighbors are examples of substantive laws that will be enforced. Some examples of procedural law:
- Rules governing arrest
- Pre-trial and court processes in criminal and civil cases.
Public Law and Private Law
Law can also be distinguished by its function into two categories, public law and private law. Public law includes constitutional law and determines how the country is governed. Private law includes the laws that govern the relationship between the government and the individuals. Such as:
- Criminal law
- Regulations created by government agencies
- Canadian Immigration and Citizenship.
On the other hand, private law involves the rules governing the relationships between individuals, such as their:
- Business relations
These are enforced when one person sues another in a private or civil action. Yates (2022) states that knowing the law and how it functions allows us to structure our lives as productive and accepted members of the community and be able to predict the consequences of our conduct. This structure can tie in with the Canadian legal system and the use of a multitude of different laws.
There are ten provinces and three territories that makeup Canada, nine out of the ten provinces have adopted the common law legal system developed in England, except for the province of Quebec, which has adopted the French Civil Code. Here we are engaging with the laws of the Province of British Columbia, and as such, a brief overview of the common law system is presented.
While Roman Civil Law was taking over Europe, relations between the existing English and French kingdoms were frequently strained. Yates (2022) states that this strain was a significant reason for England to maintain its unique common law justice system rather than adopting the more widely accepted Roman civil law.
The early Norman kings established a robust feudal system in England that centralized power in the Monarchy. As long as they remained strong, they maintained their control; but when less controlling kings were on the throne, authority was delegated to the nobles. This ongoing struggle for power between kings and nobles and later between kings and Parliament affected the growth of the common law legal system. When power was decentralized, the administration of justice fell to the local lords, barons, or sheriffs, who would hold court as part of their feudal responsibility.
At the time, there was the assumption that God would intervene on behalf of the righteous party. Strong kings, especially Henry II, enhanced their power by establishing travelling courts, which provided a more attractive method of resolving disputes. They were decision-makers who were available to people in conflict at different locations. As more people used the king’s courts, their power broadened, and their effectiveness increased. Eventually, the courts of the nobles fell into disuse. The function of the royal courts was not to impose any set of laws but to be as fair and impartial as possible and make reasonable decisions. To this end, they did not create new rules but enforced the customs and traditions they already found in the towns and villages they visited. The judges also began to look to each other’s orders for rules to apply when faced with new situations.
Gradually, a justice system developed in which the judges were required to follow each other’s decisions. This system is called starre decisis, or “following precedents.” A factor that affected the development of stare decisis was the creation of courts of appeal, which did not reweigh the evidence but evaluated how the already established rules applied to the decided cases. Although the process of appeal at this time was rudimentary, trial judges tried to avoid the embarrassment of having their decisions overturned and declared in error. Eventually, following precedent became institutionalized (Department of Justice, 2014).
Starre decisis became the most significant feature of the common law legal system, and now the decision of a judge at one level is binding on all judges of the lower courts who function in a court of lower rank, provided the facts in the two cases are similar. Thus providing the basis of the Canadian legal system.