WHAT IS THE LAW?
Why Do We Need the Law?
Almost everything we do is governed by some set of rules. There
are rules for games, for social clubs, for sports and for adults in
the workplace. There are also rules imposed by morality and custom
that play an important role in telling us what we should and should
not do. However, some rules -- those made by the state or the
courts -- are called "laws". Laws resemble morality because they
are designed to control or alter our behaviour. But unlike rules of
morality, laws are enforced by the courts; if you break a law --
whether you like that law or not -- you may be forced to pay a
fine, pay damages, or go to prison.
Why are some rules so special that they are made into laws? Why
do we need rules that everyone must obey? In
short, what is the purpose of law?
If we did not live in a structured society with other people,
laws would not be necessary. We would simply do as we please, with
little regard for others. But ever since individuals began to
associate with other people -- to live in society --laws have been
the glue that has kept society together. For example, the law in
Canada states that we must drive our cars on the right-hand side of
a two-way street. If people were allowed to choose at random which
side of the street to drive on, driving would be dangerous and
chaotic. Laws regulating our business affairs help to ensure that
people keep their promises. Laws against criminal conduct help to
safeguard our personal property and our lives.
Even in a well-ordered society, people have disagreements and
conflicts arise. The law must provide a way to resolve these
disputes peacefully. If two people claim to own the same piece of
property, we do not want the matter settled by a duel: we turn to
the law and to institutions like the courts to decide who is the
real owner and to make sure that the real owner's rights are
respected.
We need law, then, to ensure a safe and peaceful society in
which individuals' rights are respected. But we expect even more
from our law. Some totalitarian governments have cruel and
arbitrary laws, enforced by police forces free to arrest and punish
people without trial. Strong-arm tactics may provide a great deal
of order, but we reject this form of control. The Canadian legal
system respects individual rights while, at the same time, ensuring
that society operates in an orderly manner. In Canada, we also
believe in the Rule of Law, which means that the law applies to
every person, including members of the police and other public
officials, who must carry out their public duties in accordance
with the law.
Goals of the Law
In our society, laws are not only designed to govern our
conduct: they are also intended to give effect to social policies.
For example, some laws provide for benefits when workers are
injured on the job, for health care, as well as for loans to
students who otherwise might not be able to go to university.
Another goal of the law is fairness. This means that the law
should recognize and protect certain basic individual rights and
freedoms, such as liberty and equality. The law also serves to
ensure that strong groups and individuals do not use their powerful
positions in society to take unfair advantage of weaker
individuals.
However, despite the best intentions, laws are sometimes created
that people later recognize as being unjust or unfair. In a
democratic society like Canada, laws are not carved in stone, but
must reflect the changing needs of society. In a democracy, anyone
who feels that a particular law is flawed has the right to speak
out publicly and to seek to change the law by lawful means.
The System of Law and Justice
The law is a set of rules for society, designed to protect basic
rights and freedoms, and to treat everyone fairly. These rules can
be divided into two basic categories: public law and private
law.
Public Law
Public law deals with matters that affect society as a whole. It
includes areas of the law that are known as criminal,
constitutional and administrative law. These are the laws that deal
with the relationship between the individual and the state, or
among jurisdictions. For example, if someone breaks a criminal law,
it is regarded as a wrong against society as a whole, and the state
takes steps to prosecute the offender.
Private Law
Private law, on the other hand, deals with the relationships
between individuals in society and is used primarily to settle
private disputes. Private law deals with such matters as contracts,
property ownership, the rights and obligations of family members,
and damage to one's person or property caused by others. When one
individual sues another over some private dispute, this is a matter
for private law. Private suits are also called "civil" suits.
Of course, there is more to Canada's system of law and justice
than the laws themselves. Laws must be enforced, interpreted and
applied if they are to be effective, and the legal system includes
a number of institutions to carry out these duties. For example, we
have police forces to ensure that the law is enforced. We have
courts to interpret both private and public laws in specific cases,
and to impose remedies, "sanctions" or penalties. Persons found
guilty by a court of a criminal act can, for example, be
discharged, placed on probation, or sentenced to a fine or a period
of imprisonment. Persons who violate rules of private law, such as
failing to perform a contract, may be ordered to pay compensation
and their property or salaries may be seized if they refuse to
pay.
To understand Canada's legal system, we need to look at the way
law is applied in practice -- at what happens to a person who
violates a law. But first, we should examine our legal inheritance:
just where did "the law" come from?
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