Legal Ease, July 23

Limits of the law


The law does not deal with everything. And that’s a good thing—one definition of a totalitarian state is a place where everything is prescribed, from what you say, to what you think, to where you live and what you do in your spare time.

In Canada, most things are not governed in a prescriptive way by law—people are free to decide what they want to do.

That does not, of course, mean that there are no social rules that may govern proper behaviour.

For example, it is usually appropriate and proper to eat soup with a spoon and not to drink it from the bowl, but if you were to drink your chicken noodle soup from the bowl you would not be breaking any laws.

Social rules can be very strong—you won’t be invited to many parties if you eat with your mouth open or pick your teeth with a knife in public.

On the other hand, you can behave like a total slob and that will not cause any legal difficulty, provided you do not impose your slobbishness on others.

That last point is important. Most of the time, the law is concerned to make sure that interactions between people are fair and reasonable.

If you do something really dreadful—say, eat yourself into being morbidly obese—that is your business unless you affect others. The law is designed to allow people to make their own life decisions.

The things the law does deal with tend to be covered in a hierarchical way.

So, really seriously bad things are criminal. Hitting your spouse, stealing other people’s property or driving when drunk are all criminal acts, and if you do them you will be punished and may well go to jail.

Society really wants to make sure these things don’t happen, and so there is a heavy punishment for these wrongful acts.

Things that are less seriously bad are punished—or regulated—in a less dramatic manner. So if you are caught smoking in a public place, or littering, or taking a few too many fish in season, you won’t risk jail, but you may well get a significant fine.

These acts are bad, but they are not so bad as to warrant the imposition of criminal liability.

Finally, as between individuals, sometimes the law will impose a resolution of a dispute but no punishment.

So, for example, if parents have a child and break up, and they cannot agree as to who pays for what, a judge may make a decision—based on law and precedent—saying who has to pay for what.

While this may feel like a punishment to the person paying, it is not intended to punish, but rather just to make sure money is there for the child.

If I carelessly injure you in some accident and we cannot agree to what I should pay you to compensate you, a judge may rule that I have to pay you a specific sum of money—again not as punishment, but as compensation.

As can be seen, in Canada most things are not dealt with by law. That means we are all free to decide pretty well what we want to do with our lives.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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