Chapter 1 heritage of law
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Chapter 1 – Heritage of Law. The Role of Law in a Democratic Society. Agenda. 1. Take-up R. v. Lavalee 2. The Role of Law in a Democratic Society 3. Hwk . Oakes case (reading and questions). Learning Goal for Today.

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Chapter 1 – Heritage of Law

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Chapter 1 heritage of law

Chapter 1 – Heritage of Law

The Role of Law in a Democratic Society


Agenda

Agenda

  • 1. Take-up R. v. Lavalee

  • 2. The Role of Law in a Democratic Society

  • 3. Hwk. Oakes case (reading and questions)


Learning goal for today

Learning Goal for Today

  • By the end of the lesson, students will be able to describe the role of law in a democratic society & identify the distinction between a policy and principled argument


Expectations

Expectations

  • CGE7e – witnesses Catholic social teaching by promoting equality, democracy, and solidarity for a just, peaceful and compassionate society

  • Trace the development of law from its primary sources… in social and political philosophy


The role of law in a democratic society

The Role of Law in a Democratic Society

  • When does the idea of majority rules work in society?


The role of law in a democratic society1

The Role of Law in a Democratic Society

  • Ex. BC HST – Policy/pragmatic issue


The role of law in a democratic society2

*The Role of Law in a Democratic Society

  • Principled issues are where the legal system plays an important role & where the legal system quite often kicks in

  • Brings out the issue of the conflict between the common good v. making space for the individual (i.e. protecting individual rights)


The role of law in a democratic society3

*The Role of Law in a Democratic Society

  • Rights create space within which individuals can form & pursue individual projects

  • Rights trump community good in some cases


The role of law in a democratic society4

*The Role of Law in a Democratic Society

  • Arguments of Policy are for the collective good of the community

  • Usually originate with government

    ex. free high quality high school


The role of law in a democratic society5

*The Role of Law in a Democratic Society

  • Arguments of principle respect some individual or group right

    • Ex. Freedom of Religion

    • Ex. Anti-discrimination provisions of the Charter and the Human Rights Code


The role of law in a democratic society6

*The Role of Law in a Democratic Society

  • Some arguments can be both a policy and a principle argument

    • Ex. Free High Quality High School (class discussion)


The role of law in a democratic society7

The Role of Law in a Democratic Society

  • One modern legal philosopher, Dworkin, thinks that what legitimizes the legal system is that it legitimizes arguments of principle

  • Judges – appointed – don’t have to run for office – rights v.

  • Politicians – elected to talk about & pursue collective goals


The role of law in a democratic society8

The Role of Law in a Democratic Society

  • The way to protect right of individuals isn’t about democracy, it’s about what rights people have

    • Ex. Illegal search & seizure – individual rights trump collective good of protection of society


The role of law in a democratic society9

*The Role of Law in a Democratic Society

  • Section 1 of the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.


The role of law in a democratic society10

*The Role of Law in a Democratic Society

  • Under the Charter, courts will examine arguments of principle, but will also consider arguments of policy

  • Section 1 requires the courts to balance all different rights against each other, considering rights holistically as a whole


The role of law in a democratic society11

The Role of Law in a Democratic Society

  • What is a reasonable limit?

  • What does it mean to be prescribed by law?

  • What does it mean if a limit is demonstrably justified in a free & democratic society?


The role of law in a democratic society12

*The Role of Law in a Democratic Society

  • What about notwithstanding clause?

  • Section 33 of the Charter allows a government to temporarily (up to 5 years) keep a law in place, even if it violates the Charter

  • Generally, same as s.1 argument


The role of law in a democratic society13

The Role of Law in a Democratic Society

  • Doesn’t this completely gut the Charter?


The role of law in a democratic society14

The Role of Law in a Democratic Society

  • Ex. Common law partner rights to support in Quebec upon breaking up

  • Need to discuss distinction between gov’t disagreeing for policy reasons (ignoring trump of individual rights) v. disagreeing b/c they thing it is a bad law


Obligatory humour break

Obligatory Humour Break


The role of law in a democratic society15

The Role of Law in a Democratic Society

  • Oakes Case – Homework – Read handout online (Classnet – Unit I Heritage – Case 2 – Oakes & do ?’s KU 1,3, A 1)


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