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  • A constitution is the highest law of a land.

  • It provides the basic building blocks for all other laws and no law may be inconsistent with it.

  • A constitution sets up the structure of the government and legal system within a nation.

  • It says who has the jurisdiction or the authority to pass laws and render judgements, in all areas of law.

  • A constitution also outlines the procedures for properly passing or changing laws. Thus, a constitution is a political and legal blueprint for a society.
  • You may see the terms “ultra vires” or “intra vires ” mentioned in discussions about constitutions and constitutional law.

  • These terms respectively mean “outside the authority of” and “within the authority of”.
  • As you can imagine, constitutions of various nations reflect different values, principles, and goals.

  • Examples of two democratic countries are Canada and the United States of America.

  • Both countries have constitutions which perform the similar functions but reflect much different values.

  • The American Constitution came about as the result of violent armed rebellion, while Canadians achieved their constitution through more peaceful negotiations.

Most constitutions contain the same basic elements such as:

  • statements of principles and values for that nation (e.g. democracy, individual rights, rule of law)
  • the definition of the main branches and institutions of government
  • the definition of the main branches of the judicial system
  • the main responsibilities and limits of power for all government and judicial branches
  • an amending formula (a way of changing the constitution so it can adapt to future, unforeseen changes)
  • some provision for residual powers (mention of which level of government gets authority to pass laws on items not specifically listed in the constitution).
  • Some of the most obvious sources of our laws are the actual statutes or acts themselves.

  • Statutes and acts are written, debated, modified, and voted on by our elected representatives.

  • They are open to public input and scrutiny before they are enacted.

  • Once passed, they become our laws.
  • When considering legal issues, one of the first steps is to consult the written laws that are relevant to see what they say.

  • Proposed legislation under debate is referred to as a bill.
  • Statutes are most often broad policy statements with some specifics mentioned.

  • Statutes and acts that require more detailed specifics in order to become fully functional may require regulations or orders-in-council.

  • These are separate legal documents made under the authority of a statute that contain finer details omitted in the statute.

  • Unlike statutes, these are not debated and voted on in a legislature, but are approved by cabinet.

  • Thus, regulations and orders-in-council are laws made by the executive branch of government only.
  • Another vitally important source of our laws and legal understanding in Canada is the body of law created by previous court decisions.

  • This is often referred to as common law .

  • A key guiding principle in common law is the rule of precedent (which is also known by the Latin term stare decisis).

  • This principle emphasizes that courts follow the reasoning of previously decided cases with similar facts.
  • The purpose of following precedents is to create predictability and uniformity in our legal system. We expect our legal system to be consistent as opposed to arbitrary.

  • The rule of precedent helps ensure that similar cases are treated similarly.
  • While few court cases are exactly the same, there are general rules and reasoning that apply to certain situations.

  • In Canada, we have an open public court system.

  • Judges are required to state, on record, the reasoning behind their decisions.

  • The essence of their legal reasoning is known as the ratio decidendi, the “reason for deciding”.

  • A ratio decidendi may start as a narrow rule applied to a specific case.

  • But, as it is applied in further cases, it becomes a broader guideline for the courts to follow.

Secondary Sources of Law

Constitutions:

Regulations and Orders-in-Council

Statutes, Acts, and Bills:

Court Decisions

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