12 Law Unit Test Flashcards
What are the 4 driving forces behind the changes in Canadian law today?
- Demographics change - and laws need to be changed to reflect that. Population, religion, gender, etc., are never stagnant and are always changing and the law needs to keep up with that change.
- Technological Changes - affect the law
- Changes in values - affect the law—a person’s principles or standards of behaviour; one’s judgment of what is important in life.
4 National/State of Emergencies - affect the law
What are two technological changes that might affect a change in our laws in the next ten years? Explain your answer.
- The Advancement of Artificial Intelligence - as AI expands and can make things such as videos, our laws have to change so that evidence in court has to be proven to be real and not AI-generated
- The Expansion of the Internet of Things - as more devices become equipped with internet access and data collection, newer laws need to be created that address user privacy and ensure that our data is not shared
- Self-Driving Cars - New tech that we are going to have to navigate
Why is it important to change the law as time goes on?
It’s important to change the law as time goes on because our law is in place to protect an everchanging society
Thus, these laws need to reflect our current society and be relevant to the world around us
For example, we may no longer need laws relating to duels and battles to settle disagreements but will need laws surrounding the use of lawyers to settle disagreements
So, the law has to reflect the current society in terms of - changes in demographics, changes in technology, changes in values, and changes in the state of society and if it is in a state of emergency
The Rule of Law was formulated in what document? Why was it put there?
The Rule of Law was formulated in the Magna Carta
This document provided the origin of the rule of law. It set the precedent for all other nations in the British Commonwealth by establishing that no one, not even the monarch, was above the law.
Thus, it was put there to establish that no one, not even the monarch, was above the law.
Give the three parts of the rule of law and an example of how each can be broken.
- Everyone must accept that law is necessary, no one is above the law
For example - this could be broken if powerful figures such as the monarchs decide they are above the law and do not face the consequences that the rest of us do - The law applies equally to everyone
For example - this could be broken if people with more money decide that they can break the law and get away with it because of how rich they are - No one takes our rights away except in accordance with the law (ex. War Measures Act)
For example - If our democracy was not protected by laws and a dictator decided to take rights away from certain individuals
What is the name of the document that sets out our rights and freedoms? When was it ratified and under which PM?
The Canadian Charter of Rights and Freedoms
Ratified in 1982 as a part of the Canada Act Under the PM Pierre Trudeau.
The Name of the individuals who have changed the law that we learned in class. What laws did they have an impact on?
Delwin Vriend
Sue Rodrigez
Viola Desmond
Henry Morgentaler
Sharon Donna McIvor
Delwin Vriend
He set a precedent that allowed the courts to see that section 15 of the Canadian Charter of Rights and Freedoms did recognize sexual orientation in “the spirit of the law”
Sue Rodrigez
Applied to the Supreme Court of British Columbia to have section 241(b) of the Criminal Code declared constitutionally invalid (Section 241(b) prohibited assisted suicide). This is because it violates sections 7, 12, and 15 of the Charter - Right to one’s body and own life (she was not living a pain-free life and her right to end her life is protected now under the Charter). Supreme Court of Canada eventually allowed medically assisted suicide in February 2015
Viola Desmond
Through her persistent advocacy and protests with the help of the Black community, racial segregation was deemed illegal in Canada.
Ripple effect - the small act of challenging the laws that affect where you sit eventually leads to the overturning of many discriminatory laws as a result of recognizing their discrimination
Henry Morgentaler
The Supreme Court struck down federal abortion law as unconstitutional in 1988, thereby decriminalizing the procedure
Because of how he appeared before the Parliamentary Committee on Health and Welfare
Sharon Donna McIvor
McIvor took the federal government to court, arguing that section 6 of the Indian Act was discriminatory and infringed on her Charter rights
Section 6 prevented her from passing Indian status to her descendants in the way men can - her grandchildren could not receive Indian status through her bloodline, if she married a non-white man they would not be considered Indian (but this would apply if she were a man)
In response to this case, the federal government introduced new legislation (Bill C-3) in 2011 to counter gender discrimination in the Indian Act
Why do we create Royal Commissions?
Royal Commissions are boards of inquiry appointed by the government to investigate and report on a particular issue. They will often travel the country holding public meetings, calling witnesses and conducting research. Examples include the 1967 Royal Commission on the Status of Women. We create royal commissions to gather the opinions of the public and investigate significant matters that are of public interest.
Give 2 examples of different Lobby Groups in Canada.
Lobby Groups are groups of people that try to sway a legislative in a way that favours their cause. They are private and not government-funded. For example, MADD (Mothers Against Drunk Drivers) is a lobby group that allowed for harsher punishments to be put in place for impaired driving. Another example is the World Society for the Protection of Animals Canada - which fought for tighter animal cruelty laws. Lobby Groups are important to Canadian law because they allow for issues that impact citizens to be brought to the attention of the courts and have laws changed as a result.
How was our legal system influenced by ancient Rome?
Ancient Rome - gave us lawyers and the need for law school as well as Habeus Corpus and the …
12 Tables - 12 Stone tablets, each inscribed with laws. This began a new age where laws written for the promise of equality and all laws would be passed by the government and then publicly available
How was our legal system influenced by England?
England - gave us portions of the Magna Carta, Common Law, the Rule of Law, trial by combat, and oath-taking
Magna Carta - The first document to put into writing the principle that the king and his government were not above the law (one of the first times the laws were promised to be fair to everybody and not just the rich and powerful)
Common Law - The part of English law that is derived from custom and judicial precedent. Common law in Canada governs aspects of civil and criminal law (forms a basis for the legal system)
Rule of Law - is used as a safeguard for individual rights and freedoms. states that the law is necessary and no one is above the law; the law applies equally to everyone; no one can take our rights away except in accordance with the law (ex. War Measures Act.
How was our legal system influenced by The Middle East?
The Middle East - gave us…
Hammurabi’s Code and with it the idea of “an eye for an eye”
Restitution (Compensation) - you will be compensated if someone hurts you
Retribution - “An eye for an eye”
Codification - writing down laws for everyone to see
How was our legal system influenced by Asia?
Fingerprinting
The Book of Punishment - knowing what will happen to you if you do something wrong as it is written down
How was our legal system influenced by Greece?
Greece gave us… Democracy
Selective Democracy - Created by Cleisthenes of Athens in the 500s BC, however, it has undergone several massive changes throughout history. Only Athenian men who had completed military training could vote. The largest contribution and connection is clearly with modern-day democracy and leaders who do not stay in power for too long
How was our legal system influenced by Europe? - France
Europe (France) gave us…
Napoleonic Code and the idea of property laws
How was our legal system influenced by North America?
The Great Binding - Came from five indigenous nations, the Seneca, Cayuga, Onondaga, Oneida, and Mohawk in 1450. It states that if we look after the land it will look after us
Aboriginal systems of justice that emphasize community involvement and rehab are enjoying an increasing measure of respect among Canadian lawmakers.
What is common law?
Common law is at the bottom of the pyramid - can be overridden by statute and constitutional law. Based on previous decisions made by judges - precedents.
What are the 5 legal philosophies we studied in class? Be able to expand on them.
Natural Law (Universal)
Legal Positivism (Government-Based)
Legal Realism (Judge Based)
Critical Legal Theory (Legal Realism Magnified)
Feminist Jurisprudence (Feminist perspective of law)
Natural Law (Universal):
Some philosophers have argued that the world follows fundamental rules of fairness and justice that are always morally correct. Human beings have the ability to use reason and can recognize these higher laws, and so have a moral duty to follow them, even when the laws written down by our societies say otherwise. There are fundamental principles that are always morally correct (e.g., murder is always wrong)
Legal Positivism (Government-Based):
Laws should be followed simply because they are laws. Positivists insist that a law need not be moral to be a law – rather, the law should be followed simply because it is the law. Law gets its authority from the power of government. While laws often reflect important moral values, these values are not necessarily natural or universal
Legal Realism (Judge Based):
Courts are the authors of the law. The role of the judge is very important – the traits, dispositions, biases and habits of judges are just as important as precedents and legal principles in forming a decision. Thus the predictability of precedent is an illusion. This explains why two different judges can come to different conclusions with an identical set of facts about a case. What is true, moral and fair depends on the perspective of the individual who is creating the law
Critical Legal Theory (Legal Realism Magnified):
This theory argues that since laws reflect individual values, they can contain the biases of powerful social groups. Critical legal scholars argue that while the law appears to offer justice for all, in practice it is a tool most easily used by people who already have a high degree of social power and status. This means that the law can actually maintain social inequality by advancing the interests of powerful groups over the interests of marginalized groups. Laws reflect the biases of powerful social groups. E.g. You need an address to vote - what about the homeless people? This system shuts out voices that need to be heard and continues a cycle of privilege -reflects the biases of powerful social groups
Feminist Jurisprudence (Feminist perspective of law):
The state (and the law) is viewed as male and thus treats women the way men see and treat women. Laws have been framed to promote patriarchy – even laws that protect women (sexual assault laws) were originally produced to protect male property.
Who were the legal theorists/philosophers we studied in class? Give an example from their theories.
Ancient and Medieval Theories of Law
Socrates (Naturalist)
Plato (Naturalist)
Aristotle (Naturalist)
St. Thomas Aquinas (Naturalist)
English Theorists
Thomas Hobbes (Positivist)
John Locke (Positivist)
Jeremy Bentham and John Austin (Positivist)
Modern and Contemporary Theories of Law
Mary Wollstonecraft (Naturalist)
Karl Marx (Positivist)
John Rawls (Positivist)
Socrates (Naturalist):
Socrates believes to remain good one should follow what is “just” for the concept of laws. Socrates also does NOT believe in “an eye for an eye.” This saying implies that if you do wrong, I then have the right to do you wrong. He thinks that it is NEVER right to do an injustice even if you were the first to suffer. He believes that laws are just, but can be unjustly used. Any law that doesn’t produce justice and harmony should be disobeyed. His views and theories focus on virtue and justice.
Plato (Naturalist):
Believed that the state was organized to help citizens live according to Natural law. Thought that laws must be followed because they are a moral guide. His views and theories would focus on knowledge. He believed in God and God created laws. Humans use their reasoning and their education to do good and follow natural laws.
Aristotle (Naturalist):
Said that “The rule of law…is preferable to that of any individual freedom” Views similar to Plato when it came to the dangers of democracy and oligarchy but differed as he did not think education alone was the answer to make people “do good”. He felt only law could compel people and thus should train to become part of the government. Also a believer of the natural law that many philosophers agree with.
St. Thomas Aquinas (Naturalist):
Law is an eternal natural law that has been revealed through the bible, especially the 10 commandments through God. Laws need to be in accordance with natural law so that people do what’s right. Humans create laws with this in mind to regulate our behaviour and to allow the state to function in the proper fashion.
Thomas Hobbes (Positivist):
Hobbes believed that the natural state of Humans was war. The strong and powerful dominate the weak. The law of the Jungle or Anarchy. Hobbes believed that laws should be left to the individual who understands them, a “Philosopher King” This king will understand how to interpret Natural law for the masses, thus creating a Positive law we can follow.
John Locke (Positivist):
Believes in individual rights & Freedoms - Private property, Life, and Liberty. Law is simply a tool to preserve law and order and to defend people’s rights. Should a government or leader stop listening to their people/citizens then the people should overthrow that government and replace it.
Jeremy Bentham and John Austin (Positivist):
The founder of modern utilitarianism (Bentham), which is an ethical theory that means that your actions are morally right if they tend to promote the most happiness or pleasure over pain to the greatest number of people. Law and morality are separate and all human-made laws can be traced back to human lawmakers. Argued that the laws were rules, like commands
Mary Wollstonecraft (Naturalist):
Society keeping women inside as “domestic slaves” was a major detriment as it women back from economic independence. Believed women should be trained in (most of) the same careers as men. Republican for liberty in the sense of not being dependent on or vulnerable to tyrants. Believed some laws were wrong and equality’s importance that women should be treated as equals.
Karl Marx (Positivist):
He created “Marxism.” He places importance on the power of economic forces in society rather than the concept of the rule of law. Marxists believe that the material forces (resources) of a society and those that control these forces (the Bourgeoisie/ruling class) will shape the society’s legal system. The rich control the poor. The working class is controlled by the ruling class and they use laws to oppress them.
John Rawls (Positivist):
Added a requirement to assume that the choice of social justice principles would be impartial. Called his concept of social justice “Justice as Fairness,” which consists of two principles. The 1st principle means that everyone has the same basic liberties, which can never be taken away. The 2nd principle focused on equality → believed that society could not avoid inequalities among its people. He insisted that a just society should find ways to reduce inequalities in areas where it can act. Positivist because he endorsed a form of a positivistic claim for the separation between the concept of law and substantive moral values.
What does judicial independence mean?
Judicial independence is the concept that the judiciary should be independent from the other branches of government. judicial officers of the Court have the freedom to decide each case on its own merits, without interference or influence of any kind from any source, including another branch of government. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law. This would hope to diminish any bias.
What does Jurisprudence mean?
Jurisprudence is the philosophy or science of law. It is concerned primarily with what the law is and what it ought to be.
What does civil disobedience mean, and give an example of it.
Civil Disobedience is where people peacefully refuse to obey a particular law. For example, Gandhi is one of the most renowned practitioners of civil disobedience in modern history. He employed nonviolent resistance as a means to challenge British colonial rule in India. One of Gandhi’s most famous acts of civil disobedience was the Salt March in 1930. In response to the British monopoly on salt production and the imposition of a salt tax, Gandhi led a 240-mile march to the Arabian Sea coast to produce salt from seawater, in defiance of British law.
What are the main differences between a Primary and Secondary source of law? Give an example of both.
A primary source of law is derived from religion, morality, history, customs, conventions, and social/political philosophy. An example from history could include how Canada incorporates parts of Indigenous law such as the “The Great Binding Law” of the Iroquois Confederacy. While Secondary sources of law include constitutional law, statute law, and common law. For example, Canada’s Charter of Rights and Freedoms would be an example of constitutional law. In summary, primary sources originate from various sources like religion and history, while secondary sources include established legal frameworks such as constitutional law and statutes.
Case Law/Common Law:
information “common to all” relying on case law → made by judges.
Precedent:
i.e. what came before – applying a previous decision to a similar case. Precedent and common law prevent judicial bias from influencing the laws that are already set → they need to follow what is set.
Statute Law:
Statute law is based on government officials’ decisions that may reflect the citizen’s opinions. Statue law can also override common law. Government reps make statute law - more control as citizens because we elect government officials into power.
Conventions:
Conventions are unwritten rules but accepted ways.
Ultra Vires:
Ultra vires mean outside the power of a government, like how provincial governments can’t enact gun laws or how the federal government can’t control a province’s education system.
Intra Vires:
Intra vires means inside the power of a government like how the federal government can control matters with Indigenous people and how the provincial government can control their police forces.
Legal Scholarship:
Producing scholarly issues and books on a particular topic. Feminists have used this tactic to publish feminist perspectives on a wide variety of issues. Examples include – feminist writings on Battered Women’s Syndrome which were fundamental in having this condition accepted as an exculpating factor in self-defence trials
Legal Positivism:
Laws should be followed simply because they are laws. Positivists insist that a law need not be moral to be a law – rather, the law should be followed simply because it is the law. Law gets its authority from the power of government. While laws often reflect important moral values, these values are not necessarily natural or universal.
Entrenched:
Has constitutional status, can’t be changed easily needs an amending formula to change it. Well protected from being changed.
Ad Hoc Lobby Group:
“Ad Hoc” meaning at the time. Certain lobby groups - if something happens they respond with an “Ad Hoc” group that is not permanent.
Royal Commission:
A board of inquiry appointed by the government to investigate and report on a particular issue. Will often travel the country holding public meetings, calling witnesses and conducting research. Government may act on recommendations but it does not have to. Examples include the 1967 Royal Commission on the Status of Women.
Patriate:
(To bring something back) to return or turn over full legislative powers, as of amendment, to (a constitution) that were formerly held by the government of another country: a term used in Canada to describe the action of taking over the power to amend the constitution from the British parliament in 1982.
Stare Decisis:
Stare Decisis means to stand by the decision as in precedents made by past judges and use those precedents as Common law.
Plaintiff:
A person who brings a case against another in a court of law. (ComPLAINer). Important to Canadian law because we have them.
Utilitarianism:
An ethical theory that means that your actions are morally right if they tend to promote the most happiness or pleasure over pain to the greatest number of people.
Marxism:
Marxists believe that the material forces (resources) of a society and those that control these forces (the Bourgeoisie/ruling class) will shape the society’s legal system.The rich control the poor. The working class is controlled by the ruling class and they use laws to oppress them
Feminist Jurisprudence:
The state (and the law) is viewed as male and thus treats women the way men see and treat women. Laws have been framed to promote patriarchy – even laws that protect women (sexual assault laws) were originally produced to protect male property.
Legal Realism:
Courts are the authors of the law. The role of the judge is very important – the traits, dispositions, biases and habits of judges are just as important as precedents and legal principles in forming a decision. Thus the predictability of precedent is an illusion. This explains why two different judges can come to different conclusions with an identical set of facts about a case. What is true, moral and fair depends on the perspective of the individual who is creating the law.
Battered Women’s Syndrome:
When women in abusive relationships react by killing their spouses. The effects of prolonged spousal abuse were used to advance the justification of self-defence. Battered Women’s Syndrome is not, strictly speaking, a defence in itself but rather an explanation of an abused woman’s state of mind that can be used to help advance the justification of self-defence.
