Last Lecture: Legal Realism

and a few other things

R. v. Butler and theories of law

* we can find elements of all three theories of law in this case

Natural Law theory:

*"demonstrably justified in a free and democratic society"/ Oakes test: attempts to identify a standard to which the law is supposed to conform if it is to override constitutional freedoms.

* the Charter of Rights and Freedoms may itself represent an effort to enshrine natural law standards into Canadian law

Legal Positivism:

* court applies the law prescribed by the parliament, works with the definition of obscenity as written

* asks the factual question, does parliament have the authority to make such a law

Legal realism:

* judicial tests for obscenity tell us what obscenity is in Canada

* judges tell us if law conforms to the constitutional test for overriding fundamental freedoms

* judges' interpretation tells us what the law on obscenity is AND tells us what the fundamental freedom comes to

BUT notice:

* if parliament had not liked the court's interpretation, it could have invoked the notwithstanding clause (in this case, and others allowed by the constitution)

* also, judges have to make some effort to offer a reasonable interpretation of the constitution.

*judges also have to make some effort to offer a reasonable interpretation of the specific law in question (notice that "rule of law" does not mean "rule by judges")

Question: do judges "discover" the law?

Odd question: but think of "demonstrably justified in a free and democratic society", no real content until Oakes.

OK, but if the law is unknown, and unknowable until judges make a decision, then is there a difference between "discovering" and "creating" law?

Notice that judges are creatures as well as creators of law:

*how do you know if someone is a judge?

Should we say that something is a law because the people of a society treat it like a law?

*Do they treat it like law because it conforms to a natural law standard?

*Do they treat it like law because it was passed by the appropriate authority?

*Do they treat it like law because it was decided by the courts?

Couldn't it be all of the above?

Conclusion: the law is a strange thing

* the law is clearly political

* the law clearly controls people's behaviour

* the law contains certain guiding principles

* laws have to be made by someone; to count as laws they must be made by someone who is recognized to have the authority to make laws

* but laws are only effective when they are applied

* notice we rely on the law to tell us who can make the laws, and who can interpret the law. The whole thing seems circular.

But it seems to work.