Midterm Flashcards
(112 cards)
1
Q
What is law
A
it is a subset of rules and is differentiated in the formalities of documents and enforcement
2
Q
What do sanctions mean?
A
that you are subject to punishment
3
Q
What are physical laws?
A
Laws of nature in physics, chemistry, and biology
4
Q
What is an example of a physical law?
A
Law of gravity
5
Q
What are normative laws?
A
Normative laws are laws that govern human conduct, these laws are made by humans
6
Q
What is an example of a normative law?
A
Law: you shouldn’t steal
however, there is no law saying you physically cannot steal
7
Q
What is the difference between normative laws and normative rules?
A
The difference is in the way in which they were created
LAWS: They have formalized sanctions and are created by societal institutions (governments)
RULES: individuals’ beliefs about what is appropriate behavior
8
Q
Are laws neutral?
A
No, they are created by the political/philosophical values of the law maker
9
Q
How are judges appointed?
A
By political parties
10
Q
What is the product that politicians create?
A
Laws are the product politicians create
11
Q
Why aren’t laws value-neutral?
A
The laws are created by politicians, the laws created follow their values
the laws followed their political stance
12
Q
What are the two parts to the legislature?
A
Legislative assembly and the monarch
13
Q
What is the legislative assembly consist of?
A
Elected politicians
14
Q
What does the monarch consist of?
A
King Charles III, the governor general (federal), and the lieutenant governer (provincial)
15
Q
What does the monarch do?
A
Approves bills from the legislative assembly
16
Q
What are the three different schools of jurisprudence?
A
Natural law
legal positivism
Legal realism
17
Q
What is the natural law school of jurisprudence trying to answer?
A
“What should the law be?”
18
Q
What does old school natural law state?
A
It states that the natural law should be based on eternal fundamental truths inspired by god
19
Q
What does deistic natural law believe?
A
that it rests not on devine inspiration, but on the assumption that rational people who apply their inheritabilities of reason and logic to their perception of the world will arrive at basic principles of justice
20
Q
Where do most contemporary laws come from?
A
Deistic natural law
21
Q
What is legal positivism concerned with?
A
It is only concerned with “What is the law?”
22
Q
Who is the founder of positivism?
A
August Compt - the founder of sociology
23
Q
What is legal realism concerned with?
A
It is concerned with “Why is the law what it is?”
24
Q
What do laws provide?
A
They provide consistency and guidelines for individuals to follow
Essentially regulating society
25
What is the liberal capitalist view of a just society?
Market economy - driven by trading, buying, and selling. No government intervention in exchange (or limited)
Private property - everyone is better off because things for the average person are good
26
What is marxism (NDP)?
Believe in equality of condition - no one gets more than the other
Private property and the market mechanism are tools of the economic working class
27
What did jeremy bentham believe?
principal of utility - the greatest happiness of the greatest number (modern utilitarianism)
28
What were the problems with jeremy benthams belief?
It is based on maximizing happiness - but how do you measure happiness... it is very subjective
29
What is social engineering? (Roscoe Pound)
Scientific study of peoples needs and expectations and of prevailing values, more rational adjustments of the rights given to competing interests could be made to improve the lot of society
30
Does the law influence the development of society or is it a reflection of changing values in society?
Changes in law affect societies values
Example: drinking, smoking
31
Can scientific method be used to improve the quality of law-making or are scientific methods neutral instruments to be used by social groups?
Scientific methods often misused, abused, misinterpreted
32
If scientific methods can be effective in exposing societys ills is there a danger that they will destroy the myths upon which society depends on?
Sentencing and the probability of conviction are mich higher for minorities
Scientific study can destroy the myths
33
What is substantive law?
the rights and duties which person has in society, which may be enforced through the court process. it is concerned with liabilities
34
What is public law?
concerned with the conduct of government and with relations with government on one side and private persons on the other.
Divided into criminal, constitutional, administrative laws
35
What is procedural law?
the process through which liabilities can be enforeced
36
What is private law?
A branch of law that deals with the relations between individuals or institutions rather than relations between these and the government
People can go to court and have their rights decided by private law --> these rules are the basis for contract law, tort law, property law, and civil law
37
What is civil law?
Civil law is the same thing as private law
38
What does civil law rely on?
It relies on law code - a systematic collection of interrelated articles
39
What does common law rely on?
Precedent cases
40
What is the role of judges in court cases?
judges determine facts and apply legal principals
41
Who is the mediator appointed by in a disagreement?
They are appointed by the statue or by agreement - and can only suggest a solution
42
What can conciliation do?
Get the parties talking but cant suggest anything
43
Who is the plaintiff?
The person who is suing
44
What is a ratio decidendi?
a term that refers to the key point of reasoning in a case that drives the final judgement
45
What was the king called in early times?
Fountain of justice where he created all the laws
46
Who did the judge appoint to be in the court of equity? (Court of chancery)
The Chancellor
47
What is the Judicature Act?
It created one set of courts who simultaneously dispensed common law principles and principles of equity
48
What is stare decisis?
Its latin for "to stand by things decided" - aka judges adhere to precedent cases
49
What do legislatures do?
produce laws known as statutes / acts
50
What do delegate bodies produce?
Subordinate legislation
51
What is subordinate legislation?
legislation made by a person or body other than the sovereign in parliament by virtue of powers conferred either by statute or by legislation
52
Can delegates delegate?
No
53
Where can delegate bodies create legislation?
They can only create legislation within the jurisdiction given by statutes
54
When can judges create laws?
Only when a dispute arises
55
Are laws made by judges reactive or proactive?
reactive
56
Are legislatures proactive or reactive?
Proactive
57
What do courts wait on to make new laws?
they must wait for the appropriate dispute to arise
58
What is a judge looking for throughout a trial (3 things)
What are the facts of the case?
Apply an appropriate legal principle to resolve the matter
The result with a remedy
59
In Europe what are the two legal systems?
Civil law & Common law
60
What act let Quebec retain the civilian system?
The Quebec act
61
What law system does Canada follow?
mostly the common law system with exception for qubec
62
What does codification mean in black's legal dictionary?
the process of collecting and arranging the laws of a country or state into a code, that is into a complete system of positive laws, scientifically ordered and promulgated by a legislative authority
63
What is a critical weakness in the civil law system? (the one biggest weakness)
Each judge can select the principles that they see fit regarding a case they adjudicate
64
What are the weaknesses of civil law
The absence of a doctrine of precedence
In development where there arent specific principles, judges can do whatever they want
65
What is common law?
it applies to the court created law and how it is applied
66
What is the only binding principle?
The ratio decidendi
67
What is the ratio decidendi?
It is the principle(s) of law on which the court reaches its decision
The reasons the court gives for reaching its decision
68
What is a ratio? *important*
Narrowest and necessary principle upon which a judicial decision was based
69
What is obiter dktum?
Everything else besides the ratio
70
What is the hierarchy or jurisdiction?
JCPC (hightest)
Supreme court of canada
Court of intermediate appeal
Court of queens bench
Provincial courts (lowest)
71
Do you have to follow decisions from judges who are above you (in higher courts)?
Yes
72
Do you have to follow decisions from judges who are on the same level as you?
No
73
What are some problems with the stare decisis doctrine? (two)
Because it follows pre-existing decisions - if a court makes a error or a bad principle it will last for a long time
The ratios themselves in the common law system arent that clear - they are interpreted
74
What is the nature and roles of courts?
courts are an institution of dispute resolution. Their unique feature is that they make law simultaneously. There are other institutions that make law and resolve disputes: arbitration, mediation, reconciliation, settlement
75
What does quasi federal country mean?
it means that there's government of two levels each of which are independent and each is assigned a different jurisdiction.
76
What is ADR?
alternative dispute resolution
77
What is alternative dispute resolution (ADR)
use private procedures instead of courts to resolve disputes.
78
What is arbitration?
Parties have an individual other than a judge in a court, with final decision-making authority.
79
What are major motivators for using arbitration to settle disputes?
Time + cost savings
80
What is mediation? (ADR)
voluntarily can be entered into
The mediator does NOT have final decision making authority but they can suggest resolutions
81
What is a conciliator (ADR)?
most "liberal", the conciliator just gets the parties talking, there are no suggestions made
82
What is a settlement (ADR)?
making a deal before you go to court - happens in the course of a lawsuit. people make a deal because they see that the lawsuit will cost a lot of money and time
83
What are the advantages of the alternative dispute resolution system? (5 of them)
speed of resolution
Cost savings
Choice of the decision maker
Preserving ongoing business relationships
Confidentiality
84
Explain the speed of resolution advantage with alternative dispute resolution (ADR)
Cases are resolved a lot quicker using ADR rather than using the court system
85
Explain the cost saving advantage with alternative dispute resolution (ADR)
Cost of employing lawyers are huge - using ADR minimizes cost
86
Explain the choice of the decision maker advantage with alternative dispute resolution (ADR)
When you go to court you dont select the judge - so you may get unlucky in that they don't know the area pertaining to your case very well
You can pick the arbitrator/mediator yourself - ex: someone who knows a lot about that particular region of law
87
Explain the preserving ongoing business relationships advantage with alternative dispute resolution (ADR)
When going through court proceedings - you learn to hate your opponent. this drives the parties apart
Reaching a principle resolution of the dispute may preserve the functioning relationship
88
Explain the confidentiality advantage with alternative dispute resolution (ADR)
Court actions are public with public records
Arbitration/settlements on the other hand often have confidentiality clauses
89
What is the adversary system?
its up to each party to hire council to represent them (present proof and legal argument to the decision making tribunal)
90
Why would the adversary system not always work well?
People arent of equal means (if you are rich you can hire better council and witness experts)
Lying and covering up evidence
Self interests ca create abuses of procedures
91
What are the three court systems in Canada?
Courts of 1st instance (trial courts)
Court of appeal
Supreme court of Canada
92
What are the courts of 1st instance?
trial courts
It is divided into two sections
93
What are the two sides of the courts of 1st instance (trial courts)?
Provincial court
Court of Queens bench
94
What is the court of appeal?
person appealing the case - the appellant
person defending the appeal - the respondent
anyone can appeal
don't hear evidence, only principles of law
95
What court do you go to if you appeal from the courts of 1st instance?
the court of appeal
96
If you arent satisfied with your appeal result from the court of appeals, is there anything you can do?
You can appeal from the appeals court to eh supreme court of canada
97
Who appoints people in the supreme court of Canada?
the prime minister
98
How long can trial processes last?
8-10 years is not uncommon
99
Are lawsuits expensive?
They can be very expensive
100
What are the two ways lawyers charge?
an hourly rate ($150 - $500 per hour)
Contingency agreement
101
What is a contingency agreement?
paying the lawyer on the basis of the money obtained through the settlement (25% - 40%). they only receive payment if you win
102
What happens if you lose and you had a contingency agreement with the lawyer?
The lawyer doesnt get paid
103
What is federalism?
Federalism is where powers of government are split between federal and provincial levels.
the federal government has jurisdiction over the whole country
Each provincial government has jurisdiction over its population and region
104
What is a unitary state?
government power is vested in one national authority
there are municipal governments with powers over their localities but differ because they are legally subordinate to the national authority (can amend, control, or take power away)
105
What are the two corollaries for federalism?
to be truly federal, a final arbitrator of constitution is required which neither level of government alone can control or appoint
A method of constitutional amendment in areas related to the division of power is required which neither level of government can control
106
What is the first reason that Canada is a federal country?
We are subject to the laws of two authorities and jurisdictions assigned to both
107
What is the second reason that Canada is a federal country?
The statutes are entrenched
Entrenchment means the inclusion of a charter of rights as part of the constitution
108
What is the third reason that Canada is a federal country?
The existance of the amending formulae
109
What is the fourth reason that Canada is a federal country?
The colonies are to be federally united (as written in the BNA act of 1867 by the fathers of confederation)
110
What is the fifth reason that Canada is a federal country?
There were judicial decisions that consolidated federal realities
111
Is canada a federal country?
No canada is at best quasi federal, but it acts like a federal country
112
