unit 1: chapter 1&2 , legal foundations Flashcards
why should you study law?
- you need to know what the law is and what your rights are to assist you in recognizing any violation of your rights
- knowing what the law is and how the legal system works can provide you with the insight and tools to influence changes that reflect prevailing values
- as an informed, thoughtful, and active citizen, you can contribute to ensuring that the legal system serves the public
what is law
- law regulates our social, political, and economic activities from birth to death
- in some societies, law is the will of the person in power, for others it is a social necessity, and for others a reflection of religious values, morality, and justice
Rules differ from laws…
- rules do not apply outside a game or institution, so you can opt
- laws apply to the entire community, including the rule-guided games and institutions. You cannot opt out.
- rules are not enforced by the courts but laws are
The Need for Law
- to protect us from the violence of others,
- to safeguard our property, and
- to settle disagreements and disputes.
define rule of law
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
list three main aspects of the Rule of Law
- 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
law and morality
- laws generally reflect the values, attitudes, and beliefs of the majority of Canadians
- tension will continue to exist between law and personal or community standards of right and wrong
What is the relationship between law and morality in Canadian society?
Many of our laws are based on religion and morality. We accept that we should not steal but we also agree that acts considered immoral, such as murder, should be against the law. The moral values of our society, that people should be treated equally and with compassion, are reflected in our laws.
Generally, Canadian laws reflect the values of Canadians. That is, the moral standards that are applied to determine right from wrong are shared by most citizens and lawmakers. Individuals who do not share these moral values can express their opposition and lobby the lawmakers to change the law. At times, the lawmakers can apply standards that go beyond what the community values or wants (e.g., the Canadian government abolished capital punishment in 1976 despite division of public opinion on the issue).
what is law and justice
while the concept of justice is open to debate, we share common agreement on the characteristics of justice
characteristics of justice
- Treat like cases alike and different cases differently. (Stare decisis= precedent)
- Discrimination on the basis of irrelevant characteristics is unjust. ( It would be reasonable to deny a person entrance to a university program because of poor marks, but it would be unjust to deny admission based on gender or race.)
- Laws should be applied impartially. (A police officer who stops someone for drinking and driving should treat that person the same as anyone else regardless of celebrity status or political power.)
The law itself must reflect a balance of conflicting rights that is consistent with society’s values. (In our society it is considered unjust to buy or sell a child. )
Criteria for Judgment:
- are the considerations for individual rights (explicit or
implied within the case summary) relevant to deciding the outcome? - are the considerations (other than individual rights)
relevant and appropriately applied? - does the decision/outcome reflect a fair balancing of
conflicting rights? - and/or other considerations?
law and society
- our legal system strives to represent the principles and values of Canadians
- each generation influences and changes the legal system to reflect its vales and beliefs
Hammurabi’s Code: Years and Explanation
Years:
* Codified the laws
1901
* Earliest records of written laws
Explanation:
* Theft and Assault
* Fair is Fair
* Marital Issues
* Responsibility
* Do As You Should
* How to Determine Truth
Hammurabi’s Code: Significance
- Punishment could only be imposed under law – a step forward at the time
- Needed a lot of proof before someone was put to death as punishment
- Made sure that no person could be punished without first being charged and found guilty.
Mosaic Law: Years and Explanation
Years:
* Commonly known as the Ten Commandments
* Ancient set of recorded laws
* Given to the Hebrew people around 1500 BC
* Various other written Hebrew Laws supplemented the Ten Commandments
* was more concerned with punishing a deliberate action than an accidental act of harm
Explanation:
* Thou shalt not utter a false report. Thou shalt not join hands with a wicked man, to be a malicious witness.
* Thou shalt take no bribe, for a bribe blinds the officials, and subverts the cause of those who are in the right.
Mosaic Law: Significance
-
Greater emphasis on protecting the innocent
Example: if an ox gored a man or woman to death, the ox would be killed but the owner would not be harmed. -
Distinguished between deliberate, careless and accidental acts.
Example: if the owner knew that the ox had killed someone before but took no steps to prevent further accidents, both the ox and the owner would be put to death.
Justinian Code: Years and Explanation
- Roman laws recorded on stone tablets beginning in approx. 300 BC
- Laws were reorganized and recorded in understandable form, or ‘code’, by Roman Emperor Justinian, 533 AD
- Then he created his own new laws
Justinian Code: Significance
- Increased laws in number
- More complex system (put in “books”)
- Provided for legal study throughout Europe
- Inspired the modern concept of justice and serve as an important basis for law in contemporary society
Napoleanic Code
- AKA French Civil Code 1804
- Civil/Private Matters: properties, wills, contracts, family law
- Significance - women can now demand divorce, but only if the husband cheats in their house
- made law accessible to the public
Trial By Ordeal
- Before 1066 AD
- Common way to determine if a person was guilty or innocent
- Involved physically painful or dangerous tests
- Believed that God controlled outcome
E.g Trial by Hot Iron: people in dispute each grabbed a red-hot iron rod. The guilty person dropped iron first
Trial by Combat
- Replaced trial by ordeal
- Duels between people in dispute
- Still believed that innocent guided to victory by God
- Women and priests involved in disputes could choose others to duel for them
Trial by Compurgation
- If an accused person could find 12 “compurgators” to swear that they were innocent and their statements were true, then they would be declared innocent
- After 1066 AD
- Elements of this are in Canadian system today
- 12 jury members make important decisions in some trial
Restitution: Definition
Restitution refers to some method of compensation to the victim of a crime.
Restitution: Pros & Cons
Pros: Restores the victim, as much as possible, to his or her circumstances prior to the crime. This might include repairing or paying for property damage.
Cons: A monetary payment may not ensure that the offender is sufficiently sorry.
Retribution: Pros & Cons
Pros: Designed to ensure that the offender experiences the consequences of his or her action.
Cons: Some may say it is not appropriate for a modern civilized society to exact revenge. The offender may become hardened and more likely to re-offend.
Retribution: definition
Retribution refers to punishment or revenge (teaching a lesson).
Case law
Prior to Henry II, judges working in isolation from each other often made inconsistent rulings. During Henry II’s reign, circuit judges began to bring some consistency to similar cases, and eventually written records of cases were prepared to provide guidance from previous decisions. Accurate written records of court decisions are still critical today to help lawyers prepare their cases, and to help judges make their rulings. The records of the cases and their decisions (case law) have helped to establish a common method of dealing with similar cases or legal issues
