Exam Flashcards
What are the 2 types of bias
Unconscious and conscious
What is another word for unconscious bias
Implicit bias
What is another word for conscious bias
explicit bias
What is explicit bias
Being aware of the bias that is within oneself being vocal about it, indented bias
What is implicit bias
not aware the of bias that is held
Is unconscious/explicit bias permanent
No, one can work to minimize it
What did jurisprudence originally mean
a latin term that meant “knowledge or skill in the law”
What does jurisprudence mean now
is used to describe the science or philosophy of law that deals with investigating the concepts, notions and principles of legal thought
What is sovereignty
the principle upon which a nation or ruling body comes to exercise supreme political authority, jurisdiction, or power over the affairs of state (each country controls what happens within its boarders)
What is sovereignty the root of
National independence and international law
Is responsible for both peaceful and armed conflict between nations
What is internal sovereignty
The ruling body of the state
What outlines Canada’s sovereignty
The Constitution Act– it limits the power the governing bodies have
What is external sovereignty
The concept that a state is an independent political, social and cultural entity and is self determined
basically
What is common law
based on the legal principle known as stare decisis (relying on the decisions made by other courts when determining the outcome of similar cases)
Precedents is a major part of this
What are precedents
jugements or decisions of a court cited as an authority for deciding a similar set of facts
Why are the Circuit Judges (Britain) important (not on review)
Under King Henry II—traveling courts established the roots of our COMMON LAW or CASE LAW system
The creation of precedent `
What is Justice
appropriate standards of conduct, no definitive definition
What is Substantive justice
Concerned with the justice of the criteria upon which laws are based
What is procedural justice
Accurate reconstruction of events and fairness to all parties
How do you know if something is procedural just
Concerns the proper admin. of the formal rules or exercising the law (if all the administrative rules are followed, it is procedurally just)
Justice is concerned w. applying principles of law rather than their nature and substance
Justice becomes more than a matter of arriving at the right decision, it also involves giving a complete and fair hearing to all parties, acting impartially and making an honest effort to arrive at a just decision
What are the 2 ways justice is a test of law
Substative and Procedural just
What are the 6 parts to procedural justice
Principe of fairness (decision makers impartial, be fair)
Principle of Efficiency (avoid errors, be timely)
Principle of Restraint (minimum interference with individuals freedom, society should remain protected, convicted should have minimal harm caused to them)
Principle of Accountability (those in position of power should be held accountable for their decisions and the effects on the accused)
Principle of Participation (citizens involved in a positive way, participations promotes public acceptance of the criminal process)
Principle of Protection (criminal law serves to protect society, offender is entitled to full protection, criminals rights may not be infringed upon by anyone)
what is legal paternalism
To act for the good of another person without their consent, as a parent would their child.
What is public morality
An adopted norm or standard of ethical behaviour that is codified in law
What is Private morality
Our personal set of attitudes and values unobstructed by the law
What are example of laws that conflict with private morality
Abortion, polygamy, smoking marijuana (victimless crimes)
Who is Patrick Devlin
Legal philosopher and British judge
What does Patrick Devlin believe
regarding morals and criminal law are that the law should reflect the society’s morals.
Who is John Stuart Mull
English Philosopher
What does John Stuart Mull believe
that law should not intervene in mattes of private moral conduct more than necessary to preserve order and to protect the citizens against what is injurious
What is the difference between Mull and Devlin’s views
Mull- only intervene private morality a little, when it comes to safety of the people
Devlin- majority rules, so basically whatever most people want, goes even if it intervenes with private morality
What are the primary sources of law
Religion and morality -Judeo-Christian heritage -Moral Philosophy (right and wrong -Reason (Aristotle) Social and Political Philosophy Customs and Conventions Historical Influences
What is the rule of law
Definition; the rule of law is the idea that in order to function smoothly and fairly, all members of a given society agree to abide by a common set of rules, called ‘the law’.
What are the 3 main aspects of the rule of law
Law is necessary to keep peaceful order
Law applies to everyone equally
No one can have unrestricted power to limit rights unless authorized by law
What are the 3 important historical events that led to the development of the rule of law in Canada
The Magna Carta, The Glorious Revolution, The Canadian Constitution
What are the mechanisms that uphold the rule of law
Legal Independence-The separation of powers Laws Police Courts Sanctions Administrative Review
How are sanctions helping to enforce the rule of law
Retribution Removal Restitution Restoration Rehabilitation Reinforcements
What did the Magna Carta state
The law applies to everyone– even the King
The rule of law;
Law is necessary to regulate society
The law applies to everyone
People should not be arbitrarily detained
What are the different separations of powers
Judicial Independence, Judicial Impartiality, Lawyer Independence and Judicial Accountability
What is judicial independence
When judges hear legal cases, they must be able to do so without being influenced by any other source. So, if judges were subject to interest of the state, individuals who are tried by the courts would essentially be tried by the very body that they have wronged
What is judicial independence
judges must function independently of the government
What is Judicial impartiality
Judges and others who decide legal outcomes must listen to all sides of the story, and make a decision on based on the evidence presented infant of them, not on personal opinions
What is customs
A long established way of doing something, that overtime, acquires the force of law
What is customary law
unofficial law in short. It is the long-established customs (standards of community) of a particular place or locale that the general law regards as a legal practice
What is conventions
A way of doing something that has been accepted for so long that it amounts to an unwritten rule
What is consequentialist Moral Reasoning
Locates morality in the consequences of an act
Believes that the moral thing to do depends on the consequences of your actions (e.g. better that 5 should live if 1 should die)
What are the 2 types of Moral Reasoning
Categorical and Consequential
What is categorical moral reasoning
locates morality in certain duties and rights or in certain moral absolute truths, regardless of the consequences
(somethings are just wrong)
What are statutes
written laws enacted by the government
What are the visible parts of the law
Statutes and precedents
What are the 6 functions of law
Helps us avoid or settle disagreements Sets out rights and obligations Provides remedies Maintains order and provides protection Sets up structure of governments Directs how to make laws
Do laws reflect the values and beliefs of society?
Typically, yes
Who developed legal positivism
Henry VIII because the church wouldn’t allow for divorce and he wanted one… he was the king… he stripped the pope of his authority and took control of making laws
What does legal positivism derive from
The belief that law is based on HUMAN authority (e.g. political leaders or law makers)
Law is simply what the lawmaker commands
What is legal positivism
Justice means conformity to the law (Law and justice are identical)
What does legal positivism tell judges
Not to consider the substantive justice of their decision, merely whether the appropriate law has been applied impartially
What are the 2 categories of legal positivism
Letter of the law approach
Spirit of the law approach
Who are the philosophers of legal positivism
Jeremy Bentham and Thomas Hobbes
What is Letter of the law approach
law should be applied according to the literal meaning of the words
What is Spirit of the law approach
The focus should be on what the judge thins the law makers intended to achieve, not just what they stated
Recognizes that the values and purposes underlying the law should be considered
What are the Philosophies of law
Positive Law Natural Law Legal Realism Sociological Jurisprudence Marxism Feminist jurisprudence
What is legal realism
the school of legal philosophy that examines law i a realistic rather than theoretical fashion
Based on the belief that law is determined by hat actually happened in the courts as judges interpret and apply the law
Looks very closely at the discretionary power and creativity of judges and at the way individual judges interpret and apply the law one a case is in court
In legal realism, how might the judges differ from one another
There profession before being a judge, their ethnicity, all about their background
Legal realism stresses the importance of social reality in understanding law and in shaping legal decisions, what does this mean
in order to understand the legal process, one must be aware of the political, economic and social context in which law arises, changes and persists
Do legal realists believe in a “correct solution”
No, each situation is different
Is legal realism a philosophy of law
Not really, more of a method or technology for achieving a more grounded understanding of law and legal process
What is sociological jurisprudence
decision making must be concerned with the social effects of their decisions
Judges that subscribe o this philosophy would consider the impact that their decisions would have on society
All so that the law could be used as a social tool to write the wrongs of society in some respects
Who deals with disputes in Canada
Supreme Court of Canada
what is the highest court in canada
the supreme court
What is Natural Law
Holds that there is a “higher” law than the law makers made by human institutions or lawmakers
Just as natural physical laws like gravity, regulate the way physical objects operate in the world, so does natural moral law regulate the way that human beings are to operate
All human laws must conform to certain standards of morality and justice to be valid
What does Natural Law derive from
The belief that there is a set of idea, enduring, inflexible rules of conduct which is believed all human law should originate
What happens if human laws conflict with this “higher” natural law
Than they are invalid
“an unjust law is no law at all”
What are the sources of Natural Law
No definitive one, but some believe that it is GOD or human realism (rationalism)
Natural law is based on what
Universal Values (shared by all peoples of all times) and what society should work to
Where do many of the Charter of Rights and Freedoms come from
Natural Law
Who came up with Marxism and why
Karl Marx because he had a fascination of the class struggle he observed taking place between huge numbers of factories, mills and mines, and a small number of capitalist class who controlled these ‘means of production’
What did Marx believe
that the english law favoured the capitalist class by strengthening its power over the working class (e.g. there were laws outlawing the act of forming a union)
Who said, “Law is simply class rule. The ‘ruling class’ controls the information of law. Law is an instrument used for maximizing ruling class interests in society and controlling the working classes.”
Karl Marx
What is feminist Jurisprudence
The theory that law was/is an instrument of oppression by men against women
This theory directly chat;edges the notion that the law is objective and neutral in its application and that everyone is treated equally under the law
The “unequal treatment” that is mentioned in feminist jurisprudence takes what three forms
- Historical example of discriminatory laws (e.g. women not considered “persons” could not vote until 1918)
- Law’d Historical Failure to Respond to Women’s needs as distinct from those of men (e.g.1989 it was finally illegal for insurance plans to deny benefits for a pregnant woman)
- Legal institutions are systemically biased against allowing women to attain positions of power and prestige
what is FGM
Female Genital Mutilation
Who are some natural law philosophers
Plato, Aristotle, Cicero,
What did Cicero believe
Civil or human laws should be disobeyed if, in the minds of “wise and intelligent men”, the laws were deemed to conflict with those of nature
The first naturalist to propose the use of civil disobedience to compile law makers to reform laws that failed to conform with the laws of nature
What did Plato believe
Laws should reflect Universal, absolute and eternal truths and virtues
Although people could never fully achieve these truths, the law should strive to
Who is Jeremy Bentham
18th Century English Political Philosophy that believed in Consequentialist Moral Reasoning
Who said “The said truth is that the greatest happiness o the greatest number is the measure of right and wrong.”
Jeremy Bentham
Who are the philosophers of legal positivism
Jeremy Bentham and Thomas Hobbes
What Philosopher is associated with categorical Reasoning
Emmanuel Kant, the 18th century german political philosopher
What is Kant’s Categorical Imperative
The categorical imperative is based on the idea that there are certain ethical or moral rules in the world that we have a duty to follow
This theory focuses more on intent and action itself as opposed to the consequentialist focus of utilitarianism
What is the primary focus of Kantian ethics
you must never use another human being as a means to an end
When a moral action is being considered, according to Kantian ethics, what question should be asked
“What would happen if I made this action a universal law?”
Give an example of Kantian Ethics
someone insults you. You feel like you want to kill them. What would be the moral thing to do? What would happen if I made this action a universal law? You must then kill everyone that insults you. It is unlikely that you would want to make this a universal law. Therefore, you shouldn’t kill that person. AND
you are at a red light early in the morning. No one is coming in any direction and the red light is notorious for being long and you are running late for work. Now you could go ahead and run this red light, according to Kantian ethics, if and only if you would will this action into universal law. This means that you would tell everyone to run red lights anytime they want in a similar circumstance.
Who said “There is, therefore only one categorical imperative. It is: Act only according to the maxim by which you can at the same time will that it should become universal law.”
Kant
What did Thomas Hobbes believe
There can be no such things as rights without strong, coercive human laws to enforce them
Human rights can be given and taken away by the state
Who is Henry Mortentaler
Doctor who preformed abortions despite the law, and eventually got the abortion law struck down
How does Mortentaler’s case reflect the changing morals of a Canadian Society
because even though the majority of people believed that portion was wrong, it directly interfered with the Canadian Charter of Rights and Freedoms… resulting in the retraction of the abortion law. This shows that even the most followed laws can be changed if it interferes with the Canadian Charter of Rights and Freedoms —which is the basis of Canada.
Who is Ingrid Newkirk
animal rights activist and the president of People for the Ethical Treatment of Animals (PETA), the world’s largest animal rights organization.
Why in Ingrid Newkirk a person for change
Improving animal rights with PETA, stopped the silver spring monkeys case (monkeys living in horrific conditions and being tested on)
Closed the largest slaughter house in North America
Convinced major designers to stop using real fur
Ended all car-crash animal tests world wide
Who is Cesar Chavez
Spanish man, who faced discrimination and was forced to work from a young age and in terrible conditions
Why is Cesar Chavez a person for change
because he exposed people who would send Mexican workers in exchange for cheap labour, he changed the working landscape for minorities, getting them to be treated and payed fairly
His work was overshadowed by that of MLKJ because they happened at the same time
Who is Sylvia Rivera
Transgender woman, and LGBTQ activist
Why is Sylvia Rivera a person for change
Person that advocated for the LGBTQ community, fought against discrimination
When police raided stonewall inn (gay bar) and implemented the 3 piece of clothing rule (had to wear 3 pieces of clothing that fit with birth gender) they arrested people and she was the first to throw a beer bottle at a police officer
What methods did Sylvia Rivera use to create change
Violence– as she started riots with the police
Speeches
Who is Harvey Milk
Gay rights activist
Why is Harvey Milk a person for change
Joined politics so he could advocate for gay rights
What methods did Harvey Milk use to create change
Peaceful protests
Who is Mary Two Axe Early
Aboriginal Womens Rights Activist
Why is Mary Two Axe Early a person for change
Started because her friend was ordered to leave reserve when she married a Mohawk from another reserve
She did not accept the fact that women were considered possessions of their husbands
Did not accepts the fact that if married to a non-india, the woman would lose her Indian status
Founded Equal Rights for Indian Women
Got Bill C-31 amended!
