Classifying the Law
The following note has been copied from chapter #2 of Understanding the Law, Second Edition, Dickinson, Liepner, Talos, and Buckingham, as a temporary measure while the school's bookstore is out of the text. This passage will be removed once the text is in supply.


Because law deals with such a variety of activities, it is discussed under different classifications. These classifications have generated a long list of termi-nology. We have discussed some of these terms, such as court decisions and statute law. Now we shall examine other terms used to classify positive law.


Common Law System

Common law has another meaning besides judge-made law. The term is also used to describe one of the two major legal systems that exist in Western societies. The common law system, which operates in the United Kingdom, Canada, Australia, New Zealand, the United States, and other places, has roots that can be traced to the Norman conquest of Britain in A.D. 1066. While, initially, laws in England were made by judges according to local cus-toms, the Norman monarchy's gradual centralization of control meant that the royal court began to apply laws uniformly across the realm. Hence, the term common law evolved to describe laws that were applicable throughout the kingdom. A major feature of the common law system was, and still is (although to a lesser degree), reliance on judicial decisions to define the content of the law.


Civil Law System

The civil law system, rather than relying on judges, depends on a system of codification; that is, in civil law jurisdictions laws are laid down by a catego-rized civil code passed by a legislature. This system is the legacy of the Romans, who transported their civil code throughout their empire, which included Britain and continental Europe. While Roman law mostly disap-peared from England under the Anglo-Saxons, it endured in continental Europe.
British and French colonists carried their legal system around the world. Today, both common law and civil law systems operate in Canada as a legacy of our bicultural heritage. Quebec's provincial laws are codified in the Quebec Civil Code, which was deeply influenced by the French Civil Code established by the Code Napoleon in 1804 by the Emperor Napol6on. Other provincial, territorial, and federal laws are characterized by the common law system. As laws of the modern, centralized welfare state are set out in statutes, however, the distinctions between the two systems have become less significant.


Substantive and Procedural Law

Individual laws may be categorized according to their general purpose. Laws whose object is to define rights and obligations are called substantive law (or, in H.L.A. Hart's terms, "primary rules"), while those whose object is to gov-ern how society enforces those rights and obligations are called procedural law (Hart's "secondary rules"). For example, section 253 of the Criminal Code, making it unlawful to operate a motor vehicle if the driver has more than 80 mg of alcohol in 100 mL of blood, is a substantive law because it defines a legal obligation. However, section 258 of the Criminal Code, dealing with admission of a certificate of breath analysis to enter blood-alcohol content into evidence, is a procedural law.


Domestic and International Law

The validity or enforceability of laws may be deter-mined by territorial jurisdiction; that is, most laws can be enforced only within the jurisdiction of a par-ticular sovereign nation. These laws are called domestic law (sometimes known as civil laws). The Criminal Code, for example, forms part of the domestic law of Canada. Other laws, known as international laws, have validity within a number of countries according to an agreement made by sovereign mem-ber nations. Examples of international laws are the Universal Declaration of Human Rights and the Strategic Arms Limitation Treaty (SALT). International law is considered in detail in Part 4.


Private Law

Private law, also called civil law, refers to legal rules that govern people's pri-vate relationships, for example, contract law, property law, tort law, family law, and corporate law. Contract law governs people's rights and obligations under legally binding agreements, such as for the sale of goods. Property law governs the ownership of real and personal property, such as a house or an automobile. Tort law governs compensation owed by a person who wrongfully causes another's loss, for example, through assault or negligence. Family law governs the rights and obligations of family members toward one another, for example, parents' obligations to financially support children. Corporate law governs the establishment, operation, and dissolution of private and public corporations.


Public Law

Public law refers to those laws that govern and regulate the interactions of the state and its subjects. As in private law, public law may be broken down according to the type of relationship being governed. These subcategories include constitutional law, criminal law, and administrative law. Constitutional law concerns the legitimacy of laws and actions of the state under the Constitution. Criminal law comprises rules to prohibit and punish conduct that is injurious not only to individuals but also to the state as a whole. Finally, administrative law governs the operations of statutorily empowered agencies and tribunals that regulate activities within society, from the granting and revocation of licences to deciding the right to social welfare benefits. A court may have to deal with all three types of public law in one case, for example, a person accused of a crime and held in custody is entitled to a bail hearing. The justice of the peace applies the Criminal Code to decide whether to release the accused and upon what terms. The accused might argue that the Criminal Code section that, under certain circum-stances, places the responsibility on the accused, instead of the Crown, to show why the accused should be released is in violation of the accused's Charter right to be presumed innocent. This is a matter of constitutional law. Finally, the accused might contest the legal authority or jurisdiction of the justice of the peace to attach a condition to his or her release: this challenge is an administrative law issue.


COMPARING CIVIL AND CRIMINAL LAW

Civil law in this context should not be confused with the civil law system described earlier or its use as a synonym for domestic law. The term "civil" is used here as a synonym for private law. Civil law regulates private legal affairs such as breach of contract, property and family disputes, and torts. Criminal law, however, is a public law governing the conduct of citizens for the protec-tion of society as a whole. Civil liability is a person's legal responsibility to pay monetary compensation to another person who has suffered a loss because of the violation of a private law, for example, through breach of con-tract, assault, defamation of character, or negligence. If one individual is adversely affected by the conduct or behaviour of another and sustains injury to her or his person or property because of this "wrongful conduct," that indi-vidual has the private right to seek a remedy in the courts. Criminal liability, however, is responsibility for conduct that can lead to penal sanctions imposed by the state, such as fines or imprisonment. The following case examples distinguish between these two branches of law.

A's house was damaged when a pickup truck, driven by B, crashed through the front window, ending up in the living'room. No one was hurt but there was extensive property damage. The renovations needed took about five months to complete, subjecting A and her family to inconvenience and stress. In fact, as a result of the accident and the renovation process, A suffered extreme stress leading to insomnia, fatigue, nausea, bss of appetite, heartburn and depression. These problems caused A to miss more than two months of work. Her family and recreational life also were affected.
In A's lawsuit against B, the court found that A's stress symptoms and their effects were the result of the accident and could have been reasonably foreseen by B. The court, therefore, ordered B to pay A $6000 to compensate her for emotional injury.

In this case, A is the plaintiff since she initiated a lawsuit based on her cause of action for negligence, in which she claimed relief (monetary com-pensation in this case) against the defendant B, the person who caused her injuries. The monetary compensation awarded by the court is called damages.
Civil suits can be framed in a number of legal causes of action: in tort law where civil wrongs such as assault, libel, slander, or negligence have occurred; in contract law where a dispute arises in an agreement between parties; or in property law where a dispute occurs concerning rights and obligations arising from the ownership of property. Therefore, civil law concerns "private" dis-putes between individuals where one person's conduct results in harm or injury to another person, or to another person's property. Criminal law, on the other hand, is quite different.


C, a 16-year-old youth, was told by a friend that W, also 16, wanted to fight him. W was given a similar message about C. When W and C confronted each other a fight began. Although it was impossible to say who threw the first punch, W hit C in the face three times, breaking his nose and injuring his eye. W was charged with assault causing bodily harm.
The court found W guilty, rejecting his defence that C had consented to the fight. The court found that W had intended to seriously injure C and, therefore, the defence of consent was inapplicable. W's adolescence as an excuse for his conduct was also rejected.

R. v. W. (G.) is an example of criminal liability. Causing serious injury by fighting is so socially inappropriate and harmful that it has been designated a crime. Hence, the legal responsibility here is owed to the state. In Canada, the state is formally embodied in the Crown, explaining why criminal cases always involve the Crown's name (R. standing for Rex (the King) or Regina (the Queen)). The criminal process is administered by state agents. The police normally lay the criminal charges and the Crown attorney's office con-trols the prosecution. In contrast, civil claims are instituted by individuals who are wronged and are prosecuted by lawyers who are hired privately. Finally, in criminal cases such as the W. (G.) case, liability, or guilt in the criminal context, results in criminal sanctions or penalties, including fines and imprisonment. In the A v. B case, however, the result was an award of damages since the purpose of a civil suit is not punishment but compensation.

In both cases, the conduct involved could have resulted in criminal as well as civil consequences. In A v. B, had B been operating his truck while drunk he could have been charged with impaired driving for which there are criminal penalties. Conversely, in the W. (G.) case, W's assault led to injuries for which C could have claimed damages in a civil suit for pain and suffering.

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