Category: Foundations of Canadian Law

Foundations of Canadian Law #6: The Hart-Fuller Debate

This podcast we will do a brief overview of the Hart-Fuller debate. What happens when two overeducated professors duke it out in the Harvard Law Review? Hart defends the positivist stance that law and morality are separate, while Fuller maintains that law must encompass a certain amount of morality to explain its binding power. My Foundations professor tells me that the consensus across the Atlanic is that Hart won the debate. I’m not sure I see it.

Foundations of Canadian Law #5: Rules and Obligations

As Foundations abruptly stops being simple, I attempt to explain the philosophies of HLA Hart and Ronald Dworkin regarding the nature of law, legal systems, and the source of our obligations to obey. Hart’s positivism views law as seperate from morality (more on this next podcast), and explains obligations as a product of social rules. Dworkin criticizes this social rule theory and views duties as a product of normative principles.

HLA Hart, “The Concept of Law”
Ronald Dworkin, “Taking Rights Seriously”

Foundations of Canadian Law #4: Conceptions of Justice

What is justice? Is it the same as law? What happens when laws are unjust or harmful to us? In this episode we discuss Aristotle’s Ethics, Plato’s Republic and Dialogues, and Sophocles’ Anitgone. We will discuss different conceptions of justice, and the moral dilemna that arises in regards to obeying laws which harm us.

Foundations of Canadian Law #3: Aboriginal Title

This podcast we look at the landmark Delgamuukw case, in which the Supreme Court recognized the aboriginal title held by several First Nations in BC. This title is not the same as ownership, it is the sui generis right to exclusive use and occupation of the land, inalienable but to the crown. (If you were in Civil Property you’d be musing that the first part sounds a lot like the definition of ownership under article 947 CCQ, except minus the free disposal.) We will also talk about other historic cases dealing with First Nations rights, because it’s a complex and interesting issue. For the record, I think it’s very lame that we only did one class on this, but have spent about four on the “Hart-Fuller debate”.

Delgamuukw v British Columbia (1997)
R v Guerin (1984)
Calder v BC (AG) (1973)
St. Catherine’s Milling v the Queen (1888)

Foundations of Canadian Law #2: Court System

In this episode we look at the structure of the court system in Canada. The most important feature to remember is that Canada is a unified (as opposed to a dual) court system. So our courts sit in direct hierarchies, with the Supreme Court serving as the final court of appeal for both federal and the provincial courts. We will talk a little bit about each court and its jurisdiction.

Supreme Court Act 1985
Constitution Act 1867, s96

Foundations of Canadian Law #1: Civil Law History

This is the first podcast in a class called Foundations of Canadian Law at McGill University. In Foundations we tend to cover a wide variety of topics related to law such as philosophy, aboriginal title, history, rights, rules and morals, etc., so many of these episodes can stand alone. In this short episode, I talk a little bit about the history of civil law in Canada. For a more comprehensive history of Canada’s pre-confederate legal system you may also listen to Canadian Constitutional Law #3.

Royal Proclaimation 1763
Quebec Act 1774
Coutume de Paris 1510
Civil Code of Lower Canada 1866