Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Grade 12 Law > Unit 1 > Flashcards

Unit 1 Flashcards

1
Q

What are statutes

A

written laws enacted by the government

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are precedents

A

jugements or decisions of a court cited as an authority for deciding a similar set of facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What did jurisprudence originally mean

A

a latin term that meant “knowledge or skill in the law”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What does jurisprudence mean now

A

is used to describe the science or philosophy of law that deals with investigating the concepts, notions and principles of legal thought

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are the visible parts of the law

A

Statutes and precedents

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are the lesser known parts of the law

A

origins, changes over time, difference between the laws of different colours

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are the 6 functions of law

A 
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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Define remedy in law

A

legal court of action that is followed to correct a wrong

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Do laws reflect the values and beliefs of society?

A

Typically, yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is the rule of law

A

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’.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

How many main aspects are there of the rule of law

A

3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the 3 main aspects of the rule of law

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Why is law necessary to keep peaceful order

A

So that people can follow guidelines/rules and can coexist amongst each other

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What does it mean that law applies equally to everyone

A

No matter a person’s economic status, place in the government, social status… they are all treated the same under the law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the Constitution Act, 1867

A

The supreme, or highest, law in Canada

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is the Canadian Charter of Rights and Freedom

A

It is found in the Constitution Act, 1982– nothing can limit these rights for a person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the preamble of the Canadian Charter of Rights and Freedoms

A

Canada was founded upon principles that recognize the supremacy of God and the rule of law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What happens if a law contradicts with the Constitution

A

The law can be declared invalid and will be struck down or read down by the courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What are the 3 important historical events that led to the development of the rule of law in Canada

A

The Magna Carta, The Glorious Revolution, The Canadian Constitution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is the Magna Carta

A

An english legal charter established in 1215 that forced King John of England to accept that his actions would be bound by the law. This severely limited his power, but he was pressured to sign by a group of powerful nobles, called barons, who wanted to protect their own interests and property from being arbitrarily seized by the king

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Why was the Magna Carta important

A

Because this document provided the origin of law It set a precedent for all other nations in the British Commonwealth by establishing that no one, not even the monarch, was above the law (bu this didn’t mean that there was equal application of the law)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What was the glorious revolution (not on review)

A

The progresses represented by the magna Carta was advanced in 1688 during the Glorious Revolution. This event marked the overthrow of the absolute ruler, King James II, by a group of English parliamentarians who were aided by a portion of the Dutch army under William of Orange

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Why was the Glorious Revolution important (not on review)

A

Because it marked the beginning of a period when the English people refused to be led by an absolute ruler. From this point on, the rule of law has been the basis of our systems of government and law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is the Canadian Constitution

A

Sets out how Canada will be governed and how law will be made. A new law has to comply with the values, principles and powers found in the Constitution. Out constitution was first enacted in 1867 by the British parliament.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

When did Canada repatriate?

A

1982

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What are the mechanisms that uphold the rule of law

A 
Legal Independence-The separation of powers
Laws
Police
Courts
Sanctions
Administrative Review
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is legal independence-the separation of powers

A

To ensure that everyone is treated the same when it comes to law, those who create the law, are not the same as the ones that interpret and decide cases or those who represent individuals in legal matters

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What are the different separations of powers

A

Judicial Independence, Judicial Impartiality, Lawyer Independence and Judicial Accountability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is judicial independence

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is Judicial impartiality

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What is Judicial accountability

A

Judges are accountable for the decisions they make because parties have the right to appeal to a higher court. Only the supreme court of Canada has the power to make a legal decision that cannot be reviewed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is lawyer independence

A

Lawyers must represent their clients professionally, not let their personal opinions get in the way

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Are laws never changing?

A

No, they are always changing and adapting to fit the views of society. Judges also interpret laws depending on the case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What are the 2 ways to interpret law

A

Common and statute law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What are Sanctions

A

penalties that are received as a result of breaking the law, legislations or legal agreements

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

How are sanctions helping to enforce the rule of law

A 
Retribution
Removal
Restitution
Restoration 
Rehabilitation 
Reinforcements
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

What is retribution

A

taking revenge against the wrongdoer for breaking the la and causing suffering

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What is removal

A

separating potentially harmful people from the rest of society

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

What is restitution

A

returning things, especially finances to the way they were before the offence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

What is restoration

A

Making the victim emotionally whole and reiterating the offender into society

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What is rehabilitation

A

teaching offenders new skills and attitudes and strategies to help them avoid negative behaviour in the future

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

What is reinforcement

A

setting an example so that the public knows the harmful actions will be met with just consequences

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

What is administrative review

A

Not all disputes are settled in court, sometimes other bodies are appointed to make decisions about government actions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

What are the categories of law based on its purpose

A

Substantive and procedural law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

What is substantive law

A

Defines the rights, duties and obligations of citizens and levels of government… e.g. the right to own and protect property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

What is procedural law

A

Outlines the methods or procedures that must be followed in enforcing substantive laws
e.g. gathering evidence poorly, following the legal requirements for a lawful arrest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

What are the categories of law based on territorial jurisdiction

A

International and domestic

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

What is international law

A

includes laws that govern the conduct of independent nations in their relationships with each other

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

What is domestic law

A

Law made and enforced within nation’s borders
Includes both case law, statute law and constitutional law
Domestic laws differ greatly from country to country

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

What two sections can domestic law be broken into

A

Public and private

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

What is public law

A

law related to the relationships between the government and its citizens
Includes administrative law, criminal law, and constitutional law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

What is private law

A

Law governing relationship between private individuals and between individuals and organizations
Sometimes called civil law
Includes tort law, contract law, family law, estate law, property law, and employment law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

What can public law be broke down into

A

Administrative, criminal and constitutional law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

What is administrative law

A

Law related to the relationships between people and government departments. This refers to the many government departments, boards and tribunals that pay a role in regulating the relationship between people and the government agencies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

Give an example of administrative law

A

if you are injured in Ontario on the job, the case will go to Workplace Safety and they will decide how much money you get in compensation for your injury

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

What is criminal law

A

law that identifies crime and prescribes punishments
Prohibits and punishes behaviour that causes harm to others, such as murder
All crimes are described in federal statutes (e.g. criminal code of Canada)
Crimes are carried out not only against the individual but against society as a whole.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

In a criminal trial the public is represented by who

A

the crown

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

What is constitutional law

A

Body of the law dealing with the distribution and exercise of government powers
Divides law-making powers between the federal and provincial governments
Limits the power of the government by setting basic laws that all other laws must adhere to
Overrides all other laws

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

What can private law be broken down into

A

Tort law, contract law family law, will and estate law, property law, employment law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

What is Tort law (not on review)

A

Branch of civil law that holds persons or private organizations responsible for damage they cause another person as a result of accidental or deliberate action

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

Give an example for Tort law (not on review)

A

Joey falls on slippery floor in Walmart and breaks his wrist, he sues Walmart of damages
Plaintiff– person who has been harmed
Defendant–person accused of doing harm
Onus is on the plaintiff to prove to the court that the defendant’s actions caused the damage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

What is contract law (not on review)

A

The branch of civil law that provides rules regarding agreement between people and business

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

Give an example of contract law (not on review)

A

tim buys a car and signs a contract. If he does not keep up his end of the agreement or the car company doesn’t the courts assistance can be sought to have terms enforced

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

What is family law (not on review)

A

The branch of civil law that deals with various aspects of family life (e.g.custody or divorce)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

What is Will and Estate law (not on review)

A

The branch of civil law concerned with the division and distribution of property after death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

What is property law (not on review)

A

the branch of civil law that governs ownership rights in property, including real estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

What is employment law (not on review)

A

the ranch of civil law that governs the employer-employee relationship
Laws that regulate the workplace balance the rights of the employer ad the employee
Includes laws and regarding unions, hiring and firing practice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

What are the 2 types of bias

A

Unconscious and conscious

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

What is another word for unconscious bias

A

Implicit bias

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

What is another word for conscious bias

A

explicit bias

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

What is explicit bias

A

Being aware of the bias that is within oneself being vocal about it, indented bias

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

What is implicit bias

A

not aware the of bias that is held

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

Is unconscious/explicit bias permanent

A

No, one can work to minimize it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

What are the primary sources of law

A 
Religion and morality
-Judeo-Christian heritage
-Moral Philosophy (right and wrong
-Reason (Aristotle)
Social and Political Philosophy
Customs and Conventions
Historical Influences
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

What is Hammurabi’s code

A

The first laws to be written down for people to see

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
76
Q

What roots of today can be found in Hammurabi’s code

A

Of modern crimes, like thievery and murder

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
77
Q

When was Hammurabi’s code

A

1750 BC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
78
Q

What is the great laws of Manu (not on review)

A

One of the earliest forms of law
Ancient indian creation story that outlined sacred laws
Laws protected all social classes and saw all men as equal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
79
Q

What is Mosaic Law

A

Summarized the 10 commandments
Judicial system with set of laws established by moses for Jewish people
Distinguished between accidental and deliberate laws
Every law breaker must suffer for their crimes
Emphasis on the individual to lead a moral and religious life
Emphasized obedience to the law as a means of encouraging a good life

80
Q

What is draconian

A

Punishment for most crimes was death

Introduced the state’s exclusive role in punishing guilty persons instead of relying on private justice

81
Q

What does draconian mean

A

unreasonably harsh laws.

82
Q

What was introduced during the times of Ancient Greece

A 
Draconian
Salon
Establishing democracy
Birth of Jury system
Family law
83
Q

Who is Salon

A

Credited with “democratizing” justice buy making the courts more accessible to citizens (our modern laws emphasize this principle), lays foundation for democracy

84
Q

Who established democracy

A

Cleistenes in Athens during 508-507 BCE

85
Q

What 2 important things happened in Roman Law that still influence today

A

The Twelve Tables

Justinians Code

86
Q

What is the 12 tables

A

Foundation of all modern public and private law
Promoted the organization of public prosecution of crimes (influenced our criminal system)
Started a system where injured parties could seek compensation (influence on our private law)
Reinforced principle that all of our laws must be written

87
Q

What is the Justinian’s code

A

Codification of Roman law in series of books (huge influence on our laws– e.g.. Criminal Code)
His work inspired the modern concept and the word of “Justice”
Development of wills and estate law here, and property and family law

88
Q

When was the Magna Carta signed

A

1215

89
Q

What did the Magna Carta state

A

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

90
Q

What is Habeas Corpus

A

People cannot be arbitrarily detained

91
Q

Why is the Magna Carta significant

A

The presumption of innocence (MAJOR PRINCIPLE OF OUR LAW SYSTEM)
Recognized the separation of church and state and gave the right to a trial by jury

92
Q

What is law built on

A

Religion and morality

93
Q

Why are the Circuit Judges (Britain) important (not on review)

A

Under King Henry II—traveling courts established the roots of our COMMON LAW or CASE LAW system
The creation of precedent

94
Q

What is the geneva Convention, 1864

A

A response to the suffering witnessed at the battle of Solferino, Italy (part of the second war of Italian Independence)
A treaty signed by designed to provide for minimal human rights in a time of war such as the protection of military medical personnel and for the humane treatment of the wounded

95
Q

How many geneva conventions are there

A

4

96
Q

What happened in them?

A

the first (1864) dealt with the protection of battlefield casualties, the second (1906) to protect those involved in the war at sea, the third (1929) dealt with protection and care of Prisoners of War, and the 4th (1949) focuses on the treatment and protection of civilians during times of war

97
Q

Why is the Geneva convention important to international law

A

Because it attempts to establish some rules of war

98
Q

What is the Nuremberg War Crimes Trials

A

these trials established legal principles and procedures for the enforcement of international law
led to the drafting of may important international conventions (e.g. Genocide Convention, the Universal Declaration of Human Rights, etc)
This was the first international attempt at International Criminal law and was the precursor to other international war crimes tribunals including the International Crime Court (2002)

99
Q

What led to the Nuremberg War Crimes Tribunals (1945-46)

A

Panel of 8 judges that convened in Nuremberg at the end of WW2 to try the big players (Nazi Officers) for crimes against peace, war crimes and crimes against humanity
This was the first time individuals were held accountable for war crimes on the international stage, prior to this it was only done domestically
No longer would ‘I was just following orders’ be an acceptable defence in times of war
These trials established ‘crimes against humanity’ as a share and demonstrated an international consensus that crimes against humanity were intolerable and should be severely punished by the international community

100
Q

What are the 3 different levels of law

A

Constitutional (highest)
Statue
Common (Lowest)

101
Q

The Charter of Rights and Freedoms is entrenched in what level of law

A

The Constitutional Law

102
Q

What does ultra vires mean

A

beyond the power of

103
Q

What does intra vires mean

A

within the power of

104
Q

What is judicial independence

A

judges must function independently of the government

105
Q

What is parliamentary Supremacy

A

The principle that Parliament has the supreme power of law making

106
Q

What is common law

A

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

107
Q

Who is sue rodriguez and why is she important

A

Sue Rodrigues case (1992) set the precedent that they right to life was more important than the right to security of the person when it came to assisted suicide. Carter et. al case (2015) involved the SCC distinguishing the case, as they did not follow their previous precedent set in the Rodrigues case but instead struck down assisted suicide laws, acknowledging that the right to security of the person should prevail and that terminally ill people should have the right to assisted suicide in Canada

108
Q

Who really has power of new laws that are created, or laws that are changed

A

The supreme court…. they tell parliament what can and cannot pass

109
Q

Who is Richard Sauve and why is he important

A

Richard Sauve, a convicted murdered (first degree) fought a 10 year battle to gain the right to vote
The Elections Act stated that prisoners did not have the right to vote
He claimed that it violated his rights in the charter (every citizen has the right to vote)
The Supreme Court ruled in his favour and made the Parliament rewrite the law, and they did so in the way that prisoners only in federal penitentiaries (prisoners sentenced to more than 2 years are typically in these penitentiaries).
He then remounted his case two years later and the Supreme Court ruled in his favour once again, unhappy with the parliament for doing what they did, and made them write it again so that all prisoners had the right to vote

110
Q

Why did the courts refuse to strike down the law on assisted suicide in Sue Rodriguez’s case

A

because they didn’t want people to abuse that power

111
Q

Who is allan borvoy and why is he important

A

He is a Canadian-jew that started working to combat discrimination during the events of WW2. He is a person for change because he played a key role in establishing the right for intervenors to participate in cases before the Supreme Court of Canada.

112
Q

What is consequentialist Moral Reasoning

A

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)

113
Q

What is Utilitarianism

A

uses consequentialist moral reasoning (always do the greatest good for the greatest number of people)
Believes that all humans are governed by pain and pleasure —we dislike pain and like pleasure
the right thing to do collectively or individually is always to act in a way that maximizes the happiness and minimizes pain for the greatest number of people

Ides, institution and actions should be judged on the basis of their utility or usefulness

114
Q

Who is Jeremy Bentham

A

18th Century English Political Philosophy that believed in Consequentialist Moral Reasoning

115
Q

Who said “The said truth is that the greatest happiness o the greatest number is the measure of right and wrong.”

A

Jeremy Bentham

116
Q

What are the 2 types of Moral Reasoning

A

Categorical and Consequential

117
Q

What is categorical moral reasoning

A

locates morality in certain duties and rights or in certain moral absolute truths, regardless of the consequences
(somethings are just wrong)

118
Q

What Philosopher is associated with categorical Reasoning

A

Emmanuel Kant, the 18th century german political philosopher

119
Q

What is Kant’s Categorical Imperative

A

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

120
Q

What is Imperative

A

something a person must do

121
Q

What is the primary focus of Kantian ethics

A

you must never use another human being as a means to an end

122
Q

When a moral action is being considered, according to Kantian ethics, what question should be asked

A

“What would happen if I made this action a universal law?”

123
Q

Give an example of Kantian Ethics

A

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.

124
Q

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.”

A

Kant

125
Q

Who is Donald Marshal

A

A young man who was wrongly convicted of killing another man, Marshal was the victim up broken procedural law

126
Q

What is public morality

A

An adopted norm or standard of ethical behaviour that is codified in law

127
Q

What is Private morality

A

Our personal set of attitudes and values unobstructed by the law

128
Q

What are example of laws that conflict with private morality

A

Abortion, polygamy, smoking marijuana (victimless crimes)

129
Q

Who is Patrick Devlin

A

Legal philosopher and British judge

130
Q

What does Patrick Devlin believe

A

regarding morals and criminal law are that the law should reflect the society’s morals.

131
Q

Who is John Stuart Mull

A

English Philosopher

132
Q

What does John Stuart Mull believe

A

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

133
Q

What is the difference between Mull and Devlin’s views

A

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

134
Q

Who is Henry Mortentaler

A

Doctor who preformed abortions despite the law, and eventually got the abortion law struck down

135
Q

How does Mortentaler’s case reflect the changing morals of a Canadian Society

A

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.

136
Q

what is legal paternalism

A

To act for the good of another person without their consent, as a parent would their child.

137
Q

Why is legal paternalism controversial

A

It is controversial because it advances people’s interest at the expense of their liberty.

138
Q

What is Mill’s “The harm principle”

A

holding liberty can only be justified to prevent harm to the people, not to prevent self-harm.

139
Q

Who is Philip Selznick

A

Developed the Concept of Restrain of Power, is legal professor at Stanford

140
Q

What is the Concept of Restraint of Power

A

Assesses the quality of a country’s laws;

  • argued that the law’s essence does not lie in “the exercise of power and control, bit in the predictable restraint o those using that power”
  • **country will have the best laws, and justice will be achieved only when there is an independent body or branch of government that can challenge, review and limit the laws made by the ruling power
141
Q

What did Philip Selznick’s argument apply to

A

Dictatorship ;
Law represents the will of the dictator, who makes sure there is no opposition to the law no matter how unjustly
The quality of law must be very poor in a dictatorship precisely because there is no independent body to review and restrain the dictator’s laws

142
Q

What would Selznick think about Canadian legal system

A

He would think it to be excellent

143
Q

What are the Philosophies of law

A 
Positive Law
Natural Law
Legal Realism
Sociological Jurisprudence
Marxism
Feminist jurisprudence
144
Q

Who developed legal positivism

A

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

145
Q

What does legal positivism derive from

A

The belief that law is based on HUMAN authority (e.g. political leaders or law makers)
Law is simply what the lawmaker commands

146
Q

What is legal positivism

A

Justice means conformity to the law (Law and justice are identical)

147
Q

What does legal positivism tell judges

A

Not to consider the substantive justice of their decision, merely whether the appropriate law has been applied impartially

148
Q

What are the 2 categories of legal positivism

A

Letter of the law approach

Spirit of the law approach

149
Q

What is Letter of the law approach

A

law should be applied according to the literal meaning of the words

150
Q

What is Spirit of the law approach

A

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

151
Q

Who are the philosophers of legal positivism

A

Jeremy Bentham and Thomas Hobbes

152
Q

What did Thomas Hobbes believe

A

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

153
Q

What is Natural Law

A

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

154
Q

What does Natural Law derive from

A

The belief that there is a set of idea, enduring, inflexible rules of conduct which is believed all human law should originate

155
Q

What happens if human laws conflict with this “higher” natural law

A

Than they are invalid

“an unjust law is no law at all”

156
Q

What are the sources of Natural Law

A

No definitive one, but some believe that it is GOD or human realism (rationalism)

157
Q

Natural law is based on what

A

Universal Values (shared by all peoples of all times) and what society should work to

158
Q

Where do many of the Charter of Rights and Freedoms come from

A

Natural Law

159
Q

Who are some natural law philosophers

A

Plato, Aristotle, Cicero,

160
Q

What did Plato believe

A

Laws should reflect Universal, absolute and eternal truths and virtues
Although people could never fully achieve these truths, the law should strive to

161
Q

What did Aristotle believe

A

Orrin of law is found in Natural (people, society) not the divine
Humans are capable of finding real justice through reason and observation of nature
The application of reason to the student of nature reveals natural laws for governing human behaviour

162
Q

What is rationalism

A

The idea that humans are capable of finding real justice through reason and observation of nature (Aristotle)

163
Q

What did Cicero believe

A

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

164
Q

What is legal realism

A

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

165
Q

In legal realism, how might the judges differ from one another

A

There profession before being a judge, their ethnicity, all about their background

166
Q

Legal realism stresses the importance of social reality in understanding law and in shaping legal decisions, what does this mean

A

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

167
Q

Do legal realists believe in a “correct solution”

A

No, each situation is different

168
Q

Is legal realism a philosophy of law

A

Not really, more of a method or technology for achieving a more grounded understanding of law and legal process

169
Q

What is sociological jurisprudence

A

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

170
Q

Who came up with Marxism and why

A

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’

171
Q

What did Marx believe

A

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)

172
Q

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.”

A

Karl Marx

173
Q

What is feminist Jurisprudence

A

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

174
Q

What soared the feminist jurisprudence movement

A

The women’s liberation movement of the 1960’s

175
Q

The “unequal treatment” that is mentioned in feminist jurisprudence takes what three forms

A
  1. Historical example of discriminatory laws (e.g. women not considered “persons” could not vote until 1918)
  2. 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)
  3. Legal institutions are systemically biased against allowing women to attain positions of power and prestige
176
Q

What is Justice

A

appropriate standards of conduct, no definitive defintion

177
Q

What is procedural justice

A

Accurate reconstruction of events and fairness to all parties

178
Q

What is Substantive justice

A

Concerned with the justice of the criteria upon which laws are based

179
Q

What is the concept of justice

A

Despite the difficulty in giving a common meaning to justice, justice itself remains the predominant purpose of the law

180
Q

What is the great binding law

A

Aboriginals-
Laws were in form of oral stories, transferred from elders to other tribe members
Took 40 years to get all different tribes to agree to be bund by a formal constitution called the Great Binding Law
The decisions are made from a consensus, rather than a majority of votes
The US constitution and UN referred to this law
All chiefs were appointed by clan mothers, and the clan mothers could take it away if they acted no with the clans best interest in mind

181
Q

How do you know if something is substantively just

A

Is attained if the criteria and content upon which the law is made are just (if you agree with the law)
The content of the law itself must be just
One should not automatically presume that because a law exists that it is just (legalist should not be acquainted with justice)
To find out if a law is just it must be determined to what extent the law is incorporated or assimilated into the system of beliefs, values and ideals recognized by the community in which it operates

182
Q

How do you know if something is procedural just

A

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

183
Q

Can something be procedurally just but not substantively just

A

Yes, and vis versa

184
Q

What are the 3 purposes of Justice

A

As an instrument of society
As a test of Law
As a social norm

185
Q

How is justice used as an instrument of society

A

Promotes the process of civilization, e.g.. curbs cruel or excessive punishment

186
Q

What are the 2 ways justice is a test of law

A

Substative and Procedural just

187
Q

How is Justice as a Social Norm

A

Originates from society’s morals, beliefs
Concept of justice forms part of out moral behaviour and establishes a standard upon which we assess human behaviour
e.g. a socialist state justice would mean equal distribution of wealth and a capitalists state justice would mean the freedom to own property and make a profit

188
Q

What are the 6 parts to procedural justice

A

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)

189
Q

What is sovereignty

A

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)

190
Q

What is sovereignty the root of

A

National independence and international law

Is responsible for both peaceful and armed conflict between nations

191
Q

What is internal sovereignty

A

The ruling body of the state

192
Q

What outlines Canada’s sovereignty

A

The Constitution Act– it limits the power the governing bodies have

193
Q

Who deals with disputes in Canada

A

Supreme Court of Canada

194
Q

What is external sovereignty

A

The concept that a state is an independent political, social and cultural entity and is self determined
basically

195
Q

What is customs

A

A long established way of doing something, that overtime, acquires the force of law

196
Q

What is conventions

A

A way of doing something that has been accepted for so long that it amounts to an unwritten rule

Grade 12 Law (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions