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Legal System Purposes

Legal systems operate to create, end and prevent disputes.

Legal systems create some disputes when a new rule or change of an old rule is proposed. For example, when the government changed rules regarding judicial appointments, interested parties such as the Canadian Bar Association lobbied the government for change.

Legal systems also create some disputes when people who otherwise would not have a dispute, have one because one or more of the people believes a legal rule to be relevant to the parties' conduct by granting a right to one and a duty to the other. For example, when the government created the Personal Information Protection and Electronic Documents Act , it resulted in hundreds of complaints related to rights granted to them, and duties imposed upon organizations, by the Act.

Legal systems end some disputes by offering a compulsory process resulting in an order enforceable against property or a person. For example, Manitoba's The Court of Queen's Bench Small Claims Practices Act provides:

11(1) Where a defendant, or someone on behalf of a defendant, does not appear at the time and place fixed for the hearing of a claim, a judge or court officer may allow the claimant to prove service of the statement, give default judgment against the defendant and dismiss any counterclaim made by the defendant.

Consequently, once a claimant initiates the claim by filing paper with the court, the defendant must either defend or lose. Losing can result in loss of the defendant's money or property. The defendant can not end the process by simply declaring, "I do not wish to participate, and therefore the court may not make an order against me."

Legal systems also end some disputes by providing sufficiently clear rules prescribing the likely outcome of the compulsory process to cause potential disputants to settle their disputes prior to completing the compulsory process. For example, Manitoba's The Family Property Act provides a relatively clear rule regarding inheritances when families separate:

7(3) This Act does not apply to any asset acquired by a spouse or common-law partner by way of inheritance, unless it can be shown that the inheritance was devised or bequeathed with the intention of benefiting both spouses or common-law partners.

Legal systems prevent some disputes by providing rules regarding conduct some desire and others oppose when those rules are sufficiently clear for people to arrange their affairs so as to comply. For example, Manitoba's The Non-Smokers Health Protection Act establishes rules for where smoking may or may not occur by providing:

2(1) Except as permitted in sections 3 to 5.1, no person shall smoke in

(a) an enclosed public place;

(b) an indoor workplace;

(c) a group living facility;

(d) a public vehicle; or

(e) a vehicle used in the course of employment, while carrying two or more employees.

The examples above involve legislation. Court decisions settle disputes by providing final enforceable outcomes. Court decisions establish precedents which may be used by others to arrange their affairs to comply with the court decision. Even though one may not have been involved in the court case, one may rely upon the doctrine of stare decisis to assume that in the future similar situations would be decided similarly to the precedent set by the prior court decision.

Arbitration and mediation also end and prevent disputes. They end them when arbitration provides an enforceable arbitral award and when the parties reach a mediated agreement. They prevent future disputes when the parties use the arbitral award or mediated settlement as guides to future conduct. For example, they may have used arbitration to interpret a provision of a treaty or contract. Thereafter, they may use that interpretaion when behaving according to the treaty or or performing the contract. As an example for mediation, the disputants may have mediated how they would share the water from a stream. The purpose of the mediation would be to reach an agreement regarding how they would share the water in the future, possibly in addition to resolving pre-existing disputes regarding how the water was shared in the past. Also, others in the same fields of endeavor as the parties who used arbitration or mediation may look to what those parties do after the arbitration or mediation in order to determine what they should do with similar situations. Even though the original disputants may enter confidentiality agreements, if the arbitration or mediation affect their subsequent behaviour, that behaviour may be observed by others in their fields of endeaver, and considered as one possible way to handle the situation. When arbitration and mediation result in decisions or agreements that will be used by the parties or other parties in the future, they can have the practical effect of preventing future disputes.