Sources of Law    

            

Knowing what the law is on a given topic or issue is often a matter of knowing what laws have been passed by the Legislature (provincially) or Parliament (federally). But knowing how the courts have interpreted those laws is also an important factor in understanding the law. Also, there is a body of judge-made law known as "common law."

To gain a sense of what environmental law is in practice as well as in theory, it is sometimes necessary to understand legal decisions. Only once the law and its applications are known can informed decision-making proceed.

For lawyers, legal research involves consideration of all relevant legislation or statutes (e.g. Acts and Regulations), court decisions (also known as case law), plus case law commentaries, scholarly texts, and annotated statutes.

The primary sources of law are statutes and court decisions. Scholarly opinions are sometimes referred to by judges in the course of arriving at their decisions. The opinions of politicians, members of the government executive (i.e. Cabinet ministers), bureaucratic administrators, and policy makers are not binding on courts, but may be considered by them in deciding what the law requires.

 

         Common Law

 

In common law jurisdictions such as Canada, there is a body of "judge-made" law that we inherited from England at Confederation. The common law has evolved much since then through decisions of Canadian courts. While there are many "common law" countries with a similar body of judge-made law, some countries have organized civil laws as well as organized criminal and regulatory laws (France is one example of a "civil law" jurisdiction, and this approach is maintained in Quebec).

In practice, a judge is bound to follow the decisions that have already been made by previous courts deciding the same issue or facts, notably higher level courts. This is the concept that court decisions have "precedential" value, sometimes referred to using the Latin term "stare decisis." A previously decided case may become a "precedent" that will be followed by subsequent judges, providing that the facts and issues are similar enough.

The entire recorded body of case law in the common law system reveals the law as known, and must be followed, but of course, it is not that simple. If a case can be distinguished on its facts from the case presently before the court, it need not be followed. Very few cases are the same. If case law supports your position, you argue that the cases must be followed. If case law supports

 

             Obiter & Judgements   

             

In the course of writing a judgment, judges may make comments that are not considered to be legally binding. These comments, called "obiter", are comments that were not essential to the court's decision and the outcome of the case. Obiter comments do not directly determine the matter that is before the court, but may set out and explain related legal points. Obiter comments that are not related to the outcome of a case are not binding law.

Appeal Court and Supreme Court of Canada decisions are determined by a panel of judges (usually three judges on a panel of an Appeal Court, and up to nine judges for a panel at the Supreme Court of Canada).  If the judges on the panel do not reach a consensus, the decision of the majority of the judges on the panel determines the outcome of the case. Judges are dissenting from the majority decision often make compelling obiter arguments for an opposing result. When reading court decisions, you must always be aware of whether you are reading the reasoning of the majority or the minority. Sometimes, a dissenting opinion will eventually become accepted by the majority over the course of time.