Theorists/ Miscellaneous

Question 1

Hart

Answer 1

Rules of Obligation: rules of law and rules of morality
^^Secondary Rules: rules of change (rules for passing laws), rules of adjudication (rules that courts use regarding admissible evidence)
^^We have become political citizens and now we organize affairs in this way

Question 2

Hans Kelsen

Answer 2

Legal theory or jurisprudence does not need to be reduced to morals or rationality
Central figure in the philosophy of law
Occupies a middle ground between Austin’s idea of “command theory” and Hart’s legal positivism
-Pure Theory of Law: an appropriate theory of law must be pure, that is, logically self-contained and therefore not reliant on extra-legal values, natural law, or any other external source

Question 3

Kelson, Grundnorm

Answer 3

the basic norm from which all other norms derive validity (grounds all of these legal systems)

Question 4

Oliver Wendell Holmes,

Answer 4

Law that emerges in the early 20th century in the US
Law is appropriately used for social engineering; law is more than a technical process
Idea that judges act only on a case-by-case basis
Judges must shape society for the good of society

Question 5

Radical feminism:

Answer 5

patriarchy is the root cause of society’s problems that enables capitalism to exploit others
Women are reproducing the labor force that capitalists use for exploitation later–and women aren’t being paid
Liberalism props up unjust modes of reproduction

Question 6

Magna Carta, its meaning, and functions.

Answer 6

e “Great Charter of FReedoms” marks shift from monarchy to democracy
Charter later formed part of the Treaty of Lambeth; this document known as the Magna Carta. Promises protection of church rights, protection of barons from illegal imprisonment, access to justice, limitations of feudal paytems to the Crown
Brings in rule of law for EVERYONE

Question 7

Edwin Coke:

Answer 7

English jurist relied upon principles in Magna Carta arguing against the divine rights of kings to incorporate democratic values

Question 8

Habieus Corpus.

Answer 8

The “Great Writ” of habeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means “show me the body.”

Question 9

Zombie laws:

Answer 9

laws no longer in effect

Question 10

Shaw-Cross Principle:

Answer 10

federal attorney general is independent of the legislative branch as their role as the attorney general (same as minister of justice in Canada)

Question 11

John Finnus

Answer 11

Christian natural law theorist, opposed to gay marriage, demonstrates how natural law can be used as an excuse to restrict rights on the basis of religion

Question 12

Dworkin.

Answer 12

role of law is to protect the powerless, ensure justice and equity, natural law theorist working within the framework of legal positivism; judges have an obligation to appeal to justice and equity (natural law principles)

Question 13

The CCF’s Regina Manifesto (founding document of 1933)

Answer 13

called for amendments to the Constitution to protect racial and religious minorities and to offer greater protection for freedom of speech and association (protest groups and collectively bargain, strikes, etc., potentials for unionization)

Question 14

Define Jim Crow Laws.

Answer 14

Jim Crow laws were state and local statutes that legalized racial segregation.; demonstration of how legal positivism can enact bad laws.

Question 15

Define the U.S Patriot Act, the definition of a Police State, and its relation to legal positivism.

Answer 15

Completely abolished civil liberties with a very racist/colorist motivation; enacted after 9/11 to stop terrorism—government violated rights and freedoms drastically through the emergence of a Police State. Police-States: brings people into custody before they have committed a crime; US showed this in action after 9/11
Shows that harmful laws can be enacted under legal positivism without any reflection on morality.

Question 16

Truck House Trade Agreement.

Answer 16

: treaty between British and Mi’kmaq; significant Supreme Court of Canada; for the right to fish for eels out of season (assert self-governance and independent fishing and hunting rights for First Nations)

Question 17

Why does Quebec have civil law while the rest of Canada has common law?

Answer 17

British Parliament passed Quebec Act 1774: giving Roman Catholics right to participate in government and the use of French civil law
French civil law is used in Quebec; not common law, because of this (they use common law system for criminal law because that is a federal issue)

Question 18

Constitution Act 1791.

Answer 18

British Parliament passed Quebec Act 1774: giving Roman Catholics right to participate in government and the use of French civil law
French civil law is used in Quebec; not common law, because of this (they use common law system for criminal law because that is a federal issue)

Question 19

What grammatical interpretation rule allows for absurdities and repugnance to be altered?

Answer 19

Golden Rule

Question 20

Define “National Dimensions” and its relation to Section 91 and 92 of the BNA Act.

Answer 20

means that during an epidemic or war the federal government usurps provincial powers and virtually all provincial powers come under federal control

Question 21

Lon Fuller theories.

Answer 21

Demonstrating to the legal positivists that the entire structure of the legal system contains moral values (he wrote the evil king rex and presented this as evidence of such)

Question 22

Difference between absolute liability and strict liability offenses.

Answer 22

In strict liability offences the Crown does not need to prove intent. The defences of due diligence and mistake of fact are valid defences.[4]

In absolute liability offences the Crown does not need to prove intent.The defence of due diligence is not available.[5]

Question 23

Sections 91 and 92 of the BNA Act.

Answer 23

91: parliamentary powers/federal powers
92: provincial/municipal powers

Question 24

Section 1 of the Charter.

Answer 24

Limitations on freedoms clause/ Oakes Test.

Question 25

Section 15 of the Charter.

Answer 25

Discrimination/ reverse discrimination

Question 26

Section 33 of the Criminal Code.

Answer 26

Deals with non-insane automatism.

Question 27

Section 24 of the Charter.

Answer 27

Illegally obtained evidence is excluded if its admission would bring the administration of the law into disrepute.

Question 28

Section 33 of the Constitution Act.

Answer 28

Notwithstanding clause—1, 2, or three provinces may enact the notwithstanding clause.

Question 29

Section 7 of the Charter.

Answer 29

Right to life, liberty, and security of person: relates to the Morgentaler case.

Question 30

Section 14 of the Charter.

Answer 30

of the Charter deals with hate propaganda/ incitement of harm/ immutable characteristics/

Question 31

R v. Butler Case.

Answer 31

man artistically representing his childhood sexual trauma through art, charged with possession of child pornography, couldn’t be charged bc of artistic spin

Question 32

Criticisms of Cultural Marxism, rad feminism, radical CRt.

Answer 32

Says that people don’t have agency when exposed to the kinds of materials that these theories would censor: porn, economic materials, racist materials: that they are not able to decipher between “fact and fiction” and what is good on paper vs. in real life.

Question 33

Define “ex post facto” and its relationship to the Nuremberg Trials.

Answer 33

Latin principle that declares it unconstitutional to retroactively create/apply a law.
problem of vengeance in the name of righteousness; bringing someone before the court for genocide—laws were valid laws at the time and therefore it is difficult to therefore punish these people in the name of “universal justice”: this is a huge violation of the principles of natural justice because they created a law and applied it retroactively

Question 34

Section. 21 of the Criminal Code.

Answer 34

Charges parties to an offense/ parties to an offense may be held as criminally responsible as the person or persons who actually commit the offense if some act of aiding or abetting must occur over and above mere presence during the unlawful act

Question 35

Artistotle’s ideas regarding natural law.

Answer 35

Human beings have a natural purpose (telos) that purpose is happiness – human flourishing
* Conditions for human flourishing include political conditions that promote virtue (good habits of mind)
* Laws cultivate justice and facilitate the acquisition of virtue
* Justice is a moral state reflected in moral choice – habitually acting fairly (even though social justice on
this view included slaves)
* Laws bind men in states to facilitate the development of social states that reflect natural justice which
allows for human flourishing

Question 36

Plato’s ideas.

Answer 36

Justice connected to virtue (and truth) available to us through reason
* A just society respects ‘natural’ hierarchy in which elite philosopher kings steer society through reason
* Law is unnecessary in a properly balanced hierarchical society

Question 37

St. Augustine’s theories of natural law.

Answer 37

State rulers who do not subscribe to clear notions of justice (Christian moral values)
are no different that criminal gangs (robber-bands)
* Human laws must mirror a Christian God’s eternal laws of nature

Question 38

St. Thomas Acquinas natural law.

Answer 38

much later version of Christian thinking less concerned with eliminating sin through
human law
* God embeds moral values in our souls and grants us the capacity to reason
* Laws derive their authority from eternal natural law
* Law secures a common good (happiness)
* Governments that corrupt the law have no moral authority and these laws do not
have to be obeyed (Antigone)

Question 39

Define the two different types of damages in tort law.

Answer 39

compensatory (reimbursement for plaintiffs loss) and punitive damages (recognition of defendant’s misconduct)