In tort law if you come from the perspective of the economist then judges behave ‘as if’ they were setting precedents that discourages negligent behaviour. There are two primary approaches:
1) ex ante: precedent used as deterrent,
2) ex post: used to compensate victims.
Remember,
ex ante: the effect that decisions in this case will ahve on future behaviour (punish the tortfeasor).
ex post: ignores future behaviour, observes equitable distance between two parties (compensation of victims).
2 Functions of Tort Courts:
1) Determine Liability: who pays
2) Damages: how much they pay.
States can make treaties and international organizations can make treaties. For example, there is a treaty between the UN and Cambodia to establish the special criminal tribunal.
What are treaties? Treaties are instruments that establish international rights and obligations. Treaties go by many names: conventions; memorandums, etc. at the root at ii if it’s a binding instrument subject to international law then it’s a treaty.
Where does the legal weight of treaties come from? Pacta servanta – there ought to be an obligation amongst states to adhere to their treaty obligations.
Federal Courts Act s 2(1):
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prereogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96”.
There are exceptions to the above definition:
-if statute gives power to another Court
-if remedy is not provided by Federal Court act e..g habeus corpus application
There are two grounds for judicial review – Procedural and Substantive.
Continue reading Federal Courts Act and Rule of Law (CANADA)
Historically, there are two main approaches to international law:
– Natural law, which can be thought of as the idea that power of law does not come from voice of authority. In contrast positivisim says the authority is what makes the law the law. Natural law says there is a higher reason why the law is the law (e.g morality, universal principles, religious, etc.). Under natural law, horrific immoral laws would not be valid even if they came from a legitimate authority.
The application of these approaches goes back 2000 years. Natural law finds its origins in ancient Rome and Cicero the philosopher. Thomas Aquinas examined source of the aw’s legitimacy; according to him natural law is God’s natural law.
A modern definition explores how natural law is universally applicable with rules derived from reason; a doctrine that human affairs should be governed by ethical principles understood by reason.
Continue reading Two main approaches to international law: positivism and naturalism
Types of intentional torts include:
Battery – unwanted intentional touching
Assault – threat of battery
Intentional infliction of mental suffering
Intentional interference with chattels (theft)
Recklessness
Here are some introductory points on the tort of negligence.
The Elements of a Negligence Action –
Remember, the plaintiff usually has the burden of proving the first five, while the defendant has the burden of proving the sixth.
1. Duty of Care (limiting step) – there are policy considerations that can lead to the finding and non finding of a duty of care; this duty of care exists when it is reasonably foreseeable that your actions will have an effect on another person.
2. Standard of Care and its Breach – in most (but not all) negligence actions, the standard of care is the reasonable person standard .
3. Causation – has the breach of the duty of care caused an injury to the plaintiff? But for the breach of the duty of care, would the injury have occurred?
4. Remoteness of Damages (limiting step) – also called legal causation; if the damages are found to be too remote from the breach of the standard of care, then the plaintiff will not win the case.
5. Actual Loss – without loss, the plaintiff will not be successful (as opposed to intentional torts)
6. Defences – voluntary assumption of risk, illegality
A type of custom that cannot be avoided.
E.g. a persistent objector cannot opt out of a jus cogens norm.
Jus cogens is in contravention on a strict positivist approach because it does not seem to based on state consent because states are bound by these norms even if they do not consent to them. The existence of jus cogens still remains somewhat controversial, however they have achieved quite an wide scope of acceptance. The notion of jus cogens is that these norms are owed by states to all of the international law community.
In international law, opinio juris requires evidence which usually comes from resolutions. For example, general assembly resolutions. However, just because there is a general assembly resolution, does not mean that the resolution is law itself. There has to be state practice connected to the resolution. In international law general assembly resolutions must be approached with caution.
A treaty has signed participants who pass legislation pursuant to it. A declaration is just the UN declaring something. You can determine which one equates to quicker application.
There is a Doctrine of state continuity which means if a state signs a treaty, even if there is a major change of government, the state is still bound by its prior treaty obligations.
Continue reading The difference between a treaty and declaration.