Flashcards in Ch. 1 Intro to politics, law, and judicial process Deck (23):
Describe the Jonathan Drummond Case
Jonathan Drummond Case- shot herself up to her vagina with a bb gun and subsequently, the baby had a severe infection from the metal object lodged in his brain. The law recognizes that a child becomes a human being (legally) within the meaning of this Act when it has completely processed, in a living state, from the body of its mother. S.223 (1) of the Criminal Code Act
Politics- It has been said that politics is about “ who gets what, when, and how”. In other words, politics is about making decisions that distribute resources such as how money should go to programs. It is also about creating rules, which often have associated economic, social, environmental, and moral consequences.
The study of politics, therefore, focuses on two interrelated subjects: The processes surrounding the making of decisions and the outcomes of the decision-making process. It’s important to ask, who has the legitimate authoritative power?
Classical Natural Law Theory Define
For a law to be valid it had to be morally permissible - St Augustine argued that an “unjust law is no law at all” - and moral duties can be discovered in the natural order (as perhaps fixed by God) through reasoning.
Metaphysical/cosmical idea, morally lives outside of the human experience. We have access to our moral duties and gain them through reason and natural order.
It is defined by the morality
Problem - Finding what is “moral”
Legal positivists Characters (4)
1. Law is a “body of rules” as distinct from customs or conventions (norms – can or cannot be) attempts to divorce the law from reality because morality has this tendency to enrich favorited interest (christian)
2. Enacted and applied by public officials. Law, therefore, is the domain of government actors. Private groups and institutions often have rules but not considered law. Government is the legitimate source of law. Keeps accountability.
3. Laws must be enacted in a legitimate manner. Legal rules developed according to specified procedures by government actors (must also follow) that can be distinguished from rules or orders developed by terrorism, criminal gangs, or other organizations not recognized to have authority to make rules for a political community. Public institutions must adhere to the constitution. If they do not adhere to these standards then court follows.
4. Backed by the force of the state. Meaning threat of penalties, jail, etc.
Rule of Law
1) Body of rules enacted and applied by public officials
2) Applied in a legitimate manner
3) Backed by state force
4) Every person, no matter political bend, economic status, are equal before the law
5) Public officials must act in accordance to the law
6) Law must be publicly accessible and cannot be enforced retroactive
7) Must be applied fair & impartial
8 essential requirements for effective law making to achieve internal coherence or the internal morality required for valid law.
6) Possible to comply
8) Congruence between declared rules and official action
Roncarelli v. Duplessis (1959) Case
Duplessis was a the Premier and Attorney General of Quebec and ordered Roncarelli to have his liquor license revoked. This lead to Roncarelli going out of business because he was been a public nuisance to the system. Subsequently the case made it way into the Supreme Court and saw no legitimate cases for the license to be revoked. The Court noted there always be some discretion associated with the administration of government, but that public officials including the Premier, could not act with untrammeled discretion, because the abuse of power could destroy rule of law.
Illustrates the importance of the rule of law on officials. 3 officials said that he did not have the power to do so. 4 said although he had power but in executed in bad faith.
Question if a public officer who has given power to act at their desecration; exercise that desecration without limits and with accordance to personal preference.
The Neo-Classical Natural Law define
1) advance good/prosperity
2) Must be reasonable
Explain why SS guards were sent to jail
Lon Fuller – King Rex
He asked to imagine kind chaos__. We can approximate that theirs 8 kind of failures (1-8)
1) King rex does not manage to formulate general rules, so his decision are always made on an ad hoc basis
2) He fails to inform subjects of the rules that apply to them
3) He uses retroactive legislation that not only fails to guide action but undercuts the integrity of rules prospective in effect. Since it puts the under the threat of retro-spective change.
4) His rules are not understood by subjects
5) Enacts contradicting rules
6) His rules demand that subject behave in a way that’s out of their power
7) Rules are changed frequently
8) Fails at aligning the rules that are announced and administrative reality
To manage population and prevent anarchy
Riggs v. Palmer
The decision by the Court of Appeals of New York in Riggs v. Palmer, which declare that an heir who murdered his grandfathers would not be entitled to his inheritance even though the status (law legitimately passed by the New York government) concerning wills had clearly been satisfied. Dworkin notes approvingly that the court has based its decision on the federal principles, found in legal precedents, that a person should not profit or benefit form fraud or from his/her own crime.
What are the categories of law?
2. Domestic (Public & Civil) Law
Domestic Law define
Rules that are made by individuals sovereign states for a given territory-. And whereas individual sovereign states have a “monopoly on the legitimate use of violence within a given territory.
Name All Public Law subcategories
1) Cosntitutional Law
2) Tax Law
3) Criminal Law
4) Administrative law
Name All Private Law subcategories
1) Tort Law
2) Contract law
3) Property Law
4) Family Law
Name the 3 different systems of law used around the world
1) Common Law
2) Civil Law
3) Religious Law
Describe the CIVIL LAW SYSTEM
Civil law system is built on the premise that codes contain a concise, but comprehensive, expression of rules governing relationships and disputes.
judges in civil law systems are expected to resolve disputes by applying the legal principles in the codes to the facts of the case before them (using deductive reasoning).
Describe the COMMON LAW SYSTEMS
In a common law systems, however, DISSENTING and CONCURRING opinions are allowed in judgement involving more than one judge, and frequent references are made to past legal decisions called PRESCEDENTS. The reliance on past cases in common law can be explained by the act that, unlike civil law, the common law is built upon a system of INDUCTIVE REASONING (reasoning from example) where the legal principles developed in past cases are applied or modified as necessary to the facts of the case before the courts. This reliance of precedents stems from the origins of the common law system.
New Institutionalist (NI) Approach (3
1)Laws to some degree are the product of political and socio-economic forces, but can privilege some groups or ideas above others.
-Can influence the strategies of actors in the political and soci-economic system.
2) Second assumption, the judicial system is influenced by formal/informal rules and the relationship to other levels of government.
3) Courts have an important role in the government process. However, nature of role depends on various factors.
methodolocal approach to social science, economic, organizational behavior, industrial behavior and less sociology. The goal is to explore how institutional structures rules within those rules, norms, and cultures as well as constrain (limit) or enable the choices and conduct of individuals within institutions.
Legal positivists Characters (4) - Define the Law is a "body of rules"
Law is a “body of rules” as distinct from customs or conventions (norms – can or cannot be) attempts to divorce the law from reality because morality has this tendency to enrich favorited interest (christian)
Legal positivists Characters (4) - Define Enacted and applied by public officials.
Enacted and applied by public officials. Law, therefore, is the domain of government actors. Private groups and institutions often have rules but not considered law. Government is the legitimate source of law. Keeps accountability.
Legal positivists Characters (4) - Laws must be enacted in a legitimate manner.
Laws must be enacted in a legitimate manner. Legal rules developed according to specified procedures by government actors (must also follow) that can be distinguished from rules or orders developed by terrorism, criminal gangs, or other organizations not recognized to have authority to make rules for a political community. Public institutions must adhere to the constitution. If they do not adhere to these standards then court follows.