Midterm Flashcards
(38 cards)
1
Q
LAW
A
- Rules to abide by
- Geographically situated
- Regulates human behaviour
- Helps us to discover what is right and wrong
- Change depending on values
2
Q
JUSTICE
A
- Fairness for all
- Discovering the truth
- Depends on political stance, values, and morals
3
Q
IS LAW ALWAYS JUST?
A
- No
- Law is not universal, and does not cover the full spectrum of human behaviour
- Laws can be made by fallible legislators (bias)
- Laws are often applied differently to certain people
- Law and ethics is not the same
- There is a monetary bias in the legal system
4
Q
NATURAL LAW
A
- Made up by Thomas Aquinas
- Based on religion
- First pillar of law, and instinctual to human beings
- No written or formal code
- Fundamentally connected to equality and justice
5
Q
LEGAL POSITIVISM
A
- Second pillar of law
- Made up by a sovereign
- Derives from scientific positivism (what you can see, feel, etc.)
- Pushes morality aside
6
Q
WHO MAKES LAW?
A
- Originally it was God, and appointed royalty
- The Magna Carta was made to regulate authority
- In modern law, lawmakers are democratically elected officials
- They debate in the House of Commons
7
Q
JESUITS
A
- Arrived in Canada is 1608
- Shocked by the Indigenous peoples
- Began missions to Christianize Indigenous communities
- Believed in heaven and hell, sin and guilt, eternal punishment, and they had a patriarichal structure which was the opposite of the Indigenous communities
8
Q
PUNISHMENT
A
- The consequence of wrongdoing applied by authority (sentence to jail)
9
Q
MODERN PUNISHMENT
A
- Fines
- Probation
- Community service
- Mandatory counselling
- Indigenous healing lodges
10
Q
CAPITAL PUNISHMENT
A
- Influenced by punishment in France
- Exercising political power
- For the government, it was cheaper to use fear to control
- The belief in human depravity justified repression and harsh sentences
- Brutality not only was rooted in a notion of human nature and a fear of social disorder, it also compensated for police inefficiency
- In moving toward modern law, capital punishment was taken out as this was no longer seen as God’s will
11
Q
RIGHTS
A
- Defined conditions and protections that can be breached or taken away by others (government)
- Everyone has rights to life, liberty, security of person, challenging authority, freedom of speech and religion, no discrimination, etc.
- There are constitutions to uphold our rights
12
Q
INDIGENOUS RIGHTS
A
- North America was colonized and the British and French were fighting over territories
- Both sought allies with Indigenous nations, but after the British won the war, they did not uphold their promises
- Treaties were signed which gave Indigenous peoples certain land
- Some places (like BC) do not have treaties which has led to issues
- British imposed their government onto Indigenous peoples, and did not see them as persons
- This led to residential schools (forced assimilation)
13
Q
JUDGES
A
- A public official appointed to a court of law
- They form opinions and decisions about cases
- Suppose to ensure equal access to the law
- There is an issue with impartiality because judges can be biased
14
Q
BIAS
A
- Unconcious bias is when we make judgements based on prior experience, but we are not aware that we are doing it
- We usually have positive biases towards our ingroups, and negative biases to those outside our groups
- Biased judges can influence legal outcomes
15
Q
COURT
A
- A place where legal judgements are made
- Judges listen to disputes and try to come to fair conclusions
16
Q
JUDICIAL INTERPRETATION
A
- Judges can use various ways to interpret the law
- Textualism is interpreting legislation by the words in the statute alone
- Originalism is when judges try to interpret the text by considering about the intent of who originally wrote it (subjective)
- Contextualism is when judges consider the text, but also the purpose of the law and the context of the situation (values and morals of society)
17
Q
JUDICIAL REVIEW
A
- When the supreme court analyzes a decision made by an administrative tribunal
- This is not an appeal
18
Q
LAWS AND CONSTITUTION
A
- Looking at actions and making sure they are consistent with the constitution
- Look at the purpose of the law and the effect of the law and then make changes based on that
19
Q
LAWS AND CHARTERS
A
- Must first define the meaning of the right and then determine if the right has been violated
- The government has to determine if the law is justifiable in a democratic society
20
Q
JUDICIAL ACTIVISM
A
- Believe legal reasoning is malleable rather than scientific
- There are no “right” answers
- Considers societal values/morals and social justice
21
Q
CHAMPIONS OF SELF RESTRAINT
A
- Skeptical and believe laws have fixed meanings
- Seek to separate powers and the democratic process
22
Q
JURIES
A
- People are randomly selected to sit on a panel and judge criminal cases
- Long process to pick a jury due to human fallibility
23
Q
VOIR DIRE
A
- Process of questioning jury members to determine eligibility
- Trying to find the presence of bias
24
Q
CHALLENGE WITH CAUSE
A
- Eliminating a jury member based on eligibility (not over 18, not a citizen), or because they cannot be impartial
25
PEREMPTORY CHALLENGES
- Eliminating a jury member for no particular reason
- Usually it is based on "unfavourability to the case"
- Can be used to eliminate people and "stack" the jury so that the jurors are more favourable to the defense or prosecution
- Even though it is not to be used to eliminate anyone based on discrimination, this still happens
26
CONFIDENCE HEURISTIC
- People are more likely to believe someone who is confident when displaying evidence, even if the evidence is wrong
27
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
- Fundamental freedoms such as freedom of religion and freedom of speech
- Democratic rights such as the right to vote
- Mobility rights such as right not to be banished, right to move around freely in the nation, and right to leave
- Legal rights such as right to liberty, right to know why you are being arrested, and right to a lawyer
- Equality rights
- Offical languages of Canada
28
BILL C-279
- Gender Identity Bill
- Last introduced in 2011
- Gender expression was previously not protected in the charter
29
BILL C-16
- Amendment of the Canadian Human Rights Act to include gender identity or expression
- Was exceptionally controversial because people thought this bill was unnecessary as sex is already included
30
ZOMBIE LAWS
- Laws that have been struck down in the Supreme Court but still remain in the criminal code
EX:
- Blasphemous libel (profane talk, especially about God)
- Alarming her Majesty
- Making a reward with no questions asked
- Provoking a person to fight in a duel
- Crime comics
- Erectile dysfunction ads
- Witchcraft
31
Henry Morgentaler
- Survivor of holocaust who came to Canada and became a doctor
- He was a pro-choice advocate who preformed abortions even when it was illegal
- Used his privilege as a white educated man to overturn the ban on abortions
- Case related to who makes laws and how laws do not always reflect everyone's morals and values
32
Sativa Halappanavar
- Pregnant woman in Ireland who started experiencing abdominal pain
- Found that she had sepsis, but abortion was banned at the time, so the doctors let her have a natural miscarriage
- Sativa died, and the outrage sparked an overturn of the ban on abortions in Ireland
- Case related to who makes laws and how laws do not always reflect everyone's morals and values as well as is law always just?
33
Kalief Browder
- 16 year old boy who was accused of stealing someone's backpack
- Was sentenced to 3 years in solitary confinement
- Eventually the case was dismissed and he was allowed to go home, but he died by suicide not long after
- Case related to is law always just?
34
Anne de Brueil
- She killed, stole, and seduced
- Was punished through being branded by this flower symbol and then decapitated
- Case related to capital punishment
35
MICHEL FOUCAULT
- Believed that punishment was an exercise of political power and of social dominance
- Believed that punishment is an intimidating display of the state’s power
- Case related to capital punishment
36
PURPOSE OF SENTENCING
- To denounce the unlawful conduct and harm to the victim
- To discourage the offender and others from committing such crimes
- To separate offenders from society when necessary
- To assist in rehabilitating the offender
- To provide reparations for harm done to the victim and the community
- To promote a sense of responsibility in offenders and acknowledgment of the harm done
37
RAINA EL-ALLOUL
- In courtroom she was asked to take off her hijab or the judge would not listen to her
- Judge said that the courtroom is a secular place
- The judge was using the law to uphold inequality
- This was appealed and Raina won under freedom of religion
- Case related to Canadian Charter of Rights and Freedoms
38
CONVENTIONS VS DECLARATIONS
- Declarations are not legally binding (declaration of human rights)
- Conventions are suppose to be legally binding (UN convention rights of the child)
