Primary and Secondary Sources of Law

CLN4U – Mr. Andrez

Roots of Lawo most laws that we use today did not

appear out of nowhere o they have evolved over the years o all laws have roots and histories

o the knowledge of these roots and influences is part of Jurisprudence -the science and philosophy of law o Jurisprudence can also mean being skilled in

the legal field

o sources of the law can be divided into two types: Primary and Secondary

Primary Sources of Lawo Primary sources are

ideologies, beliefs and philosophies that have influenced our society’s ideas and values over the years

o They are religious, social and philosophical views that have led to our existing legal system

o The biggest influence was from Britain

Religion

Religiono even in secular societies, most laws

are based on religion in some way o Mosaic Law is the basis of Judeo-

Christian teaching o Judeo-Christian teaching is the basis

of Canadian law o VI: Thou shall not kill (murder) o VIII: Thou shall not steal (theft/robbery) o IX: Thou shall not bear false witness

(perjury)o Early Canadian laws were steeped in

moral and religious ideas i.e.:o -Lord’s Prayer in schools o -Lord’s Day Act, Sunday shopping

Religion Cont…

o Even the preamble of the Charter begins with:o “Whereas Canada is founded upon principles that

recognize the supremacy of God and the rule of law.”

o Ontario Education Act Section 264 (1)(c)

o -“It is the duty of a teacher and a temporary teacher:…to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues;”

o Canada has no official separation of Church and State

o Religion is recognized as a fundamental right in Canada

Customso another example

of a primary source is a custom

o customs may be entrenched, prohibited

o They are usually written down

o some evolve over time, while others are legislated o i.e. Peter the Great

and the beard tax, westernization

o Diplomatic immunity

Conventionso a less formal, usually unwritten form of

custom is a convention

o a commonly accepted way of doing things o i.e. in Canada the party with the largest number

of seats in the House of Commons forms the government

o i.e. PM is usually an MP rather than a Senator

o while these aren’t written down the Governor General usually follows these conventions - but he/she doesn’t have to

o these are different from conventions like the Geneva Conventions

Secondary Sources of Lawo All the laws in Canada fall

into one of three categories:

o Constitutional lawo Statute lawo Common law or Case law

Constitutional Lawo Developed in 1867

with the British North America Act

o Refined in 1931 with the Statue of Westminster—more independence for Canada

o Patriated in 1981 with the addition of an amending formula

o 2/3rd of the provinces comprising 50% of the population

Constitution cont…

o 1982—Charter of Rights and Freedoms

o The most important laws in Canada

o Gave more power to the Courts

o All laws must be balanced with the rights and freedoms outlined in the Charter

Statute Lawo These are the laws passed by

Parliamento The second most important

laws in Canadao Laws are enacted by the

Members of Parliament that are elected by Canadian voters

o All statutes must be consistent with the rights and freedoms guaranteed within the Charter

Statute Law cont…

Common Lawo Common law relates to decisions

made by judges in previous caseso This is the biggest area of law,

but is the lowest level on the legal hierarchy

o Again, all decisions must be consistent with the Charter of Rights and Freedoms

o Laws made by judges based on precedent

Types of lawo Note the order of

importance

o Both Constitutional law and Common law are highly influenced by Judge’s Decisions

o Statute law is Government made law; must be consistent with the Charter

Constitutional law

_____________

Statute law_____________________

Common law