LAWS1000 Fall Review Flashcards
(43 cards)
1
Q
Jurisprudence
A
- The theory or philosophy of law
2
Q
Artifactualism
A
- Delvins theory
- Recognizes that law is just a social construct
- Law is capable of reorganization and modifications
- Artifactualism: recognizes that it is impossible to conceive of law without reference to the social values reflected in, and enforced by, law.
- Important: there is however nothing separate or “out there” about law.
- Artifactualists claim that Realists exclude certain structural commonalities of the judiciary. For example, their homogeneity in terms of class, race and gender.
- Artifactualism posits that law is best understood as the complex product of a host of interacting social forces.
- Artifactualists emphasize that law is about power;
- Not only a reflection of the power relations in our society, but that it simultaneously constitutes and legitimizes those power relations.
- Power is seen as relational because it is negotiated (although unequally) between the different communities in a society.
- Law is not simply perceived as an instrument of the power elites: it is conceptualized as a terrain of struggle over the meaning and quality of societal existence.
3
Q
Natural Laws
A
- It claims to be universal
- The validity of law depends on the content, not just the form
- Connections between moral and law
- Natural law is superior to human laws
- Provides moral and legal arguments for obedience -> law is only valid if its in accordance with the right reasons
- Encourages us to pursue the good
Some Criticisms… - Not as universal as it may seem
- Inherently ambiguous
- Too general, abstract, or vague to offer any real or practical legal solutions
- No rational way to know whats right or wrong
- Hume – you’ll shape law based on your ideology -> common good – who you exclude from your common good, ect.
4
Q
Legal Positivism
A
- Analytical jurisprudence
- The content of law also depends on the social constructs, not just its merits
- Aspires to be a scientific account of law
- legal and moral become distinct. Speculations about the essence of stuff, including justice, is discouraged. What matters are positive Laws, as enforced by the State.
5
Q
Max Webber
A
- Laws enacted by legislators and modified by the court decisions, define criminal behaviors and specify the sanction imposed for violations…
6
Q
Mala in se
A
- Things that most people would consider evil
7
Q
Informal Social Control
A
- internalized group norms
- no leader or official group mechanism
8
Q
Formal Social Control
A
- The use of universal sanctions
- Securing conformity in a systematic and visible way -> military, stuff like that
9
Q
Formal Social Control
A
- The use of universal sanctions
- Securing conformity in a systematic and visible way -> military, stuff like that
10
Q
What is the “Job” of Law?
A
- Negotiating and settling disputes
11
Q
What is the most highly structured formal system?
A
- Criminal sanctions
- Criminal sanctions are Laws enacted by legislators and modified by the court decisions, define criminal behaviors and specify the sanction imposed for violations…
12
Q
Hoebel
A
- Thought that law is at the center of how a society is organized
13
Q
Hoebel and Llewellyn’s Five Basic Law Jobs/ Functions of Law
A
- Law disposes of trouble in society by dealing with minror cases
- Law regulates conflict by dealing with opposing interests -> laws role is to produce and maintain order
- Law helps decide and regulate institutions of governance and to allocate authority
- Law helps organize society as a whole
- there is a law that maintains and trains and regulates other tools and people charged with performing other law jobs
14
Q
Emile Durkheim
A
- (Distinction between primitive and complex society on the scale of their specialized labors; Law is moving from repressive to compensation and even restoring measures). Topology of Solidarities, evolving.
15
Q
Ratio Dicidendi
A
- The grounds for the decision
16
Q
What does the Butler Test deal with? Wha are the tests that came out of this case?
A
- The Community Standards Tolerance Test: now what you personally can not handle, but what you wouldn’t want other Canadians dealing with
- The Degradation or Dehumanization Test:
1. Notion of Harm - Materials which portray people in positions of subordination, servile submission or humiliation run against equality and dignity of all persons—even with consent (constitutional limitation)
2. 3 Categories of Porn: with Violence, without but degrading, neither…
17
Q
What is the arbiter?
A
- the “community” as a whole
18
Q
“Artistic Defence” and “Internal Necessity”
A
- The question is - is the undue exploitation of set the point of the work?
- Artistic rest on the freedom of expression, and must be upheld
19
Q
What is the key notion in the degradation test?
A
- The notion of harm -> materials portray people in positions of subordination, servile submission or humiliation run against equality and dignity of all persons—even with consent (constitutional limitation)
20
Q
POGG
A
- Peace, order, and good governance
- principle informing “residual powers” -> the power to enact laws not assigned to provinces
- It is a principle derived from 1867
21
Q
Ultra Vires
A
- “beyond the powers”
22
Q
Positive Law
A
- statues that have been laid down in legislature
23
Q
The Perka Test
A
- The test used to see if you can use the defence of necessity
- Imminent peril or danger
- No reasonable legal alternative
- Proportionality in harm inflected/avoided
- In sum, the legal option=
choice=voluntariness=criminal act
24
Q
Obiter Dictum
A
- the judges incidental expression of opinion
25
Stare Decisis
- "to stand by things decided"
| - basically what common law is based off of - the use of precedents
26
What are the three components of social life?
- conflicting purposes
- competition for scarce resources
- disagreement on how we should be doing things
27
Legal Realism
- Realism sees law not as an object, but as part of a larger system which is always in flux.
- Realism sees law as a means to achieve some social ends.
- Therefore, it adopts a functionalist approach which inquires into both the purpose and effects of law.
- Realism sees any analytical separation of "is" and "ought" as purely heuristic: it admits that values have an unavoidable impact upon legal rules.
- Realism casts doubt on the judicial rhetoric which claims that judging is politically neutral because judges are simply following the rules.
- Realism encourages us to look behind the rules to see what the judges are actually doing as opposed to what they say they are doing.
- Realists encourage us to inquire into the personalities, prejudices, political sympathies, economic preferences and other factors that affect actors within the legal system
- Methodology: Realism demands that we draw upon disciplines outside of law to help us better understand
- Scope: Realism suggests that there is a great deal more to law than simply looking at what the courts do.
- Law is part of a broader social system and has many dimensions beyond the judicial decisions.
28
The Golden Rule
- the text of the law can be modified as to avoid flagrant absurity or inconsistancy
29
The Mischief Rule
-Judge can consider underlying purpose of legislation by examining the history of law and why it was made
30
Switzman and Elbing
- Switzman was a Marxist who wanted to turn the apartment into a Communist lab
- The landlord was afraid that her apartment was going to be confiscated under the Padlock Law, which was a law meant to protect Quebec from communism/bolshevism
- Anyways, the case let to the striking down of the Padlock Law because of the ultra vires and freedom of speech -> it went to the COA, and they voted in favour of Swizman
31
The Oakes Test
- The test used to see if a law is unconstitutional
| - kind of defines section 1 of the charter -> "reasonable limits" part of the rights
32
Royal Proclamation of 1763
- the thing that gave power to the British in terms of North America after the Seven Years War
- Constitutional framework for how the First Nations people were to be treated in terms of the government
33
S. 35
- The outline of the existing aboriginal and treaty right of the aboriginal peoples in Canada
34
Difference between aboriginal and indigenous rights
- Aboriginal Laws: the laws enacted by the Canadian government in regards to the aboriginal people
- Indigenous Laws: The laws that the indigenous people create themselves
35
S.91
- Federal responsibility
36
S.92
- Provincial responsibility
37
S.15
- Equality rights
38
S.19 of CCC
- The defence of ignorance of the law
39
John Stewart Mill
- Harm principle: one cannot use their own liberty to infringe on the rights of another
40
White Paper
- Federal government policy document presented by a minister intended to state the governments policy on certain issues, which is argumentative in nature, and intended to mark a change in a policy before the legislation is actually enacted
41
S. 469
- "Every count of criminal jurisdiction has jursisdiction to try an indictable offence other than an offence under any of the following categories/ sections involving treason, piracy, mutiny, ect"
42
The Principle of Paramountcy
-
43
Ammending Formula
- S.38
| - 7 provinces and 50% of the population must vote in favour to change something in the constitution
