Quiz 2 Flashcards
Study Guide (47 cards)
What is the distinction between Natural Law and Positivism?
Natural law is based on a moral code, whereas positivism argues that law is created strictly by human authority.
How does Lon Fuller’s Natural law theory differ from John Finnis’ Positivism?
Fuller emphasizes moral principles in law, while Finnis focuses on laws created by human institutions.
How would Natural Law and Positivism interpret John Corvino’s description of homosexuality?
Natural law would agree with Corvino’s view that it is unnatural, while positivism would argue that lack of naturalness does not imply wrongness.
How is law and morality distinguished?
Law is a system of rules enforced by institutions, while morality is a system of beliefs about right and wrong.
What is Hart’s view on unjust laws?
Hart believes that even unjust laws are still laws if they follow legal procedures.
What does Fuller argue about systems that violate fundamental moral principles?
Fuller argues that such systems are not truly law.
What are the four key concepts of Positivism?
- The separation of law and morality
- Law as a human creation
- The rule of recognition
- Law as a system of rules
What is the ‘penumbra’ problem?
It refers to situations where legal rules are unclear or ambiguous, leading to interpretation beyond the literal text of the law.
How does the ‘penumbra’ problem critique positivism?
It highlights that judges may need to make moral decisions when laws are unclear, contradicting positivism’s separation of law and morality.
Why was the covenant in the Drummond Wren case declared invalid?
It took a progressive, public-policy based approach, leading to the invalidation of the covenant.
What was the outcome of the Noble and Wolf case regarding the covenant?
The case took a technical property law approach, allowing the covenant to stand.
What is Bentham’s view of Utilitarianism?
Utilitarianism is the best action or law that maximizes happiness for the greatest number of people.
What does Bentham argue about the relationship between law and morality?
Bentham argues that law is created by human institutions and should not be confused with morality.
What are the key applications of the Oakes Test in legal cases?
- Little Sisters’ case
- M. v. H. case
- R. v. Big M Drug Mart case
- Multani v. Commission scolaire case
- AC v. Manitoba case
- Irwin Toy case
- Keegstra case
What is the ‘Subjective Sincerity Test’ in religious freedom cases?
It assesses whether a claim of religious belief or practice is genuine based on the claimant’s sincere belief.
Is there a difference between individual religious freedom and collective religious freedom?
Yes, individual religious freedom protects personal belief and practice, while collective religious freedom allows communities to organize.
How are religious freedoms for Indigenous peoples in Canada distinct?
They integrate cultural practices tied to land, historical injustices, and have specific legal protections.
What challenges are posed by polygamous religious sects like Bountiful in BC?
They involve legal, social, and human rights concerns, including potential exploitation and the need to protect individuals.
What are the three natural rights according to John Locke?
- Life
- Liberty
- Property
What implications do Locke’s natural rights have for law and religious freedoms?
They influence legal systems prioritizing individual liberties, including the protection of religious freedoms.
How does Locke fit into the distinction between Natural Law and Positivism?
He is associated with Natural Law, believing in inherent rights and moral principles derived from human nature.
What is Locke’s view on the relationship between government and the people?
Locke advocates for a government with limited powers, reflecting the will of the people.
What is a social contract?
It is an agreement among individuals to form a society and establish a government for protection of rights.
What freedoms and limits on religion does Locke support?
Locke supports extensive religious freedoms but limits practices that harm public order or others’ rights.
