This Crazy Little Thing Called 'Law': Legal Materials and Institutions

• Author: Allan C. Hutchinson
• Pages: 53-81

Law is a dynamic and social force, but its formal existence can be

traced to a variety of sources. These are the raw materials of the law

that make up the basic phenomenon of “law.” They will be the basic

working resources that you will need to learn and become familiar

with, if you are to make any progress in understanding law. However,

you will make a serious mistake if you understand these sources as

lifeless and dry forms; these products and processes of the law are

human creations and, as such, are organic substances in a state of

constant flux. The sources may be constant, but their outpourings are

volatile and varied. Also, as Dickens put it in Bleak House, courts are

“the foggiest and muddiest of places,” and law students ought not to

be surprised that the task of identifying and understanding the basic

resources of the law is not as straightforward or as clear as they might

like it to be. This chapter maps the essential features of the legal

topography that students must learn to negotiate in their efforts to

come to grips with legal study: the constitution, the common law, leg-

islation, and customs and values.

this crazy little thing called “law”

legal materials and institutions

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the constitution

Many people wrongly assume that Canada has had a constitution only

since 1982. However, Canada has had a formal constitution since its

creation in 1867 by the British North America Act and, even before,

there were legal instruments stretching back to the first colonial settle-

ments that established a Canadian territory. Of course, none of this tra-

ditional history tends to recognize that Aboriginal nations had consti-

tutions that can be traced back for hundreds of years. Although the

British North America Act was a statute of the British government, it

formed the basis of Canada’s constitution until the repatriation of the

constitution in 1982. At this time, the name of the British North

America Act was changed to the Constitution Act, 1867 (but its content

remained unchanged), and the Constitution Act, 1982, added, among

other things, the Charter of Rights and Freedoms to Canada’s constitu-

tion. These constitutional measures place definite, if unclear, con-

straints on what the federal government and its provincial counter-

parts can and cannot do. As such, the doctrine of legislative suprema-

cy has always had a special and attenuated significance in Canada.

Up to 1982, the constitution divided powers between the federal

and the provincial governments, but did not restrict what they could

do or enact within their authorized area of action. For example,

whereas the federal government had power to legislate on criminal

law, the provinces had power to regulate property and civil rights: the

difficulty has been to fathom the relation between various powers in

a society that is very different from that of 1867. Since 1982, the

Charter has also placed limits on the kind of action that any particu-

lar government or legislature can take; Canadians have a constitu-

tionally guaranteed freedom of communication and the right to life,

liberty, and security of the person that government cannot infringe.

For instance, if a government wished to introduce legislative meas-

ures to control smoking or tobacco advertising, the only question that

used to be asked was whether that particular government had the

authority to act. Now, once the issue of jurisdiction is resolved, the

question has to be asked whether any government can take such

steps for fear of infringing the rights and freedoms of Canadian citi-

54 / the law school book