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The Canadian constitutional framework is foundational to the contemporary Canadian legal system. This section provides a brief introduction to that framework. Governance is about systems of social organization and control and governmental power is the capacity to establish and maintain such systems. The ‘constitution’ of a society has been ...
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tion of legal reality, from high-minded academic legal discourse to demon-. strators placards, reveals the significance of legitimacy to law in the dis-. tinction between law and non-law, as well as in questions regarding the. identification of sources, the role of the courts, the content of legal norms, and so on.
This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights.
- Introduction
- The Possibility of The Null Model
- The Rule of Law
- A Fresh Start
- Two Modes of PRECEDENTIAL Reasoning
- Evaluating The Modes
- Conclusion
Many of our normative practices are influenced by the force that past decisions exert on similar, future situations, in favour of reaching the same result as before. We normally call these past decisions precedents, and when it comes to the law we often say that precedents influence the decisions of courts when relevantly similar disputes arise. Bu...
Justice and courts have always had a complex relationship. John Gardner wrote that ‘judges should first and foremost administer justice’,9 and before him HLA Hart held that we naturally think of justice as being administered according to law.10 This complex relation has contributed to the way we have historically called courts, shifting between cou...
Many ideas are usually associated with the expression ‘the rule of law’. It is often said, for example, that the rule of law is first and foremost a requirement of good governance. People exercising positions of political authority should be subject to mandatory rules aiming to minimise the potential for arbitrary government and even tyranny.21 The...
Having argued against the null model, it is time to propose a fresh start. Unlike before, where I proceeded bottom-up,46this time I will proceed top-down. I will start from the rule of law and then articulate two modes of precedential reasoning that are consistent with this ideal. The argument in this section is as follows. The first subsection arg...
Commitment to the rule of law can make room for courts to adjudicate under robust precedent-following. Thus, the mere fact that an earlier court decided a dispute is a reason for the later court to follow this decision in a relevantly similar dispute. Under the strong version, the existence of a precedent-governed dispute triggers a non-contingent ...
In this final section, I want to analyse how both modes of precedential reasoning deal with two evaluative questions. The purpose of this analysis is to offer someof the tools that are vital for determining whether there is a model that should be preferred, and eventually for criticising the particular practice of precedents held by courts.
There is a minimum requirement of the rule of law in regard to precedent, and I have called it the persuasive mode of precedential reasoning. The null model, however lawful, runs counter to the rule of law. Yet the question still remains open as to which of the two modes that are compatible with the rule of law should be preferred. I do not think t...
Nov 5, 2023 · Conclusion. The legal system within a society is a complex edifice built upon foundational principles of justice, equity, and the rule of law. It is an ever-evolving system, responding to the needs and changes within society, guided by the constant pursuit of fairness and the protection of rights. Its strength lies not only in the written laws ...
The courts can decide who the real owner is and how to protect the owner's rights. Laws help to ensure a safe and peaceful society. The Canadian legal system respects individual rights and ensures that our society is orderly. It applies the same law to everybody. This includes the police, governments and public officials.
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of any particular legal system. The central theme of the article is the distinction between formal and substantive meanings of the rule of law. This dichotomy, is as will be seen below, of crucial importance in determining the nature of the specific legal precepts which can be derived from the rule of law.
