- 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