12 Law Unit Test Flashcards
1
Q
What are the 4 driving forces behind the changes in Canadian law today?
A
- Demographics change - and laws need to be changed to reflect that. Population, religion, gender, etc., are never stagnant and are always changing and the law needs to keep up with that change.
- Technological Changes - affect the law
- Changes in values - affect the law—a person’s principles or standards of behaviour; one’s judgment of what is important in life.
4 National/State of Emergencies - affect the law
2
Q
What are two technological changes that might affect a change in our laws in the next ten years? Explain your answer.
A
- The Advancement of Artificial Intelligence - as AI expands and can make things such as videos, our laws have to change so that evidence in court has to be proven to be real and not AI-generated
- The Expansion of the Internet of Things - as more devices become equipped with internet access and data collection, newer laws need to be created that address user privacy and ensure that our data is not shared
- Self-Driving Cars - New tech that we are going to have to navigate
3
Q
Why is it important to change the law as time goes on?
A
It’s important to change the law as time goes on because our law is in place to protect an everchanging society
Thus, these laws need to reflect our current society and be relevant to the world around us
For example, we may no longer need laws relating to duels and battles to settle disagreements but will need laws surrounding the use of lawyers to settle disagreements
So, the law has to reflect the current society in terms of - changes in demographics, changes in technology, changes in values, and changes in the state of society and if it is in a state of emergency
4
Q
The Rule of Law was formulated in what document? Why was it put there?
A
The Rule of Law was formulated in the Magna Carta
This document provided the origin of the rule of law. It set the precedent for all other nations in the British Commonwealth by establishing that no one, not even the monarch, was above the law.
Thus, it was put there to establish that no one, not even the monarch, was above the law.
5
Q
Give the three parts of the rule of law and an example of how each can be broken.
A
- Everyone must accept that law is necessary, no one is above the law
For example - this could be broken if powerful figures such as the monarchs decide they are above the law and do not face the consequences that the rest of us do - The law applies equally to everyone
For example - this could be broken if people with more money decide that they can break the law and get away with it because of how rich they are - No one takes our rights away except in accordance with the law (ex. War Measures Act)
For example - If our democracy was not protected by laws and a dictator decided to take rights away from certain individuals
6
Q
What is the name of the document that sets out our rights and freedoms? When was it ratified and under which PM?
A
The Canadian Charter of Rights and Freedoms
Ratified in 1982 as a part of the Canada Act Under the PM Pierre Trudeau.
7
Q
The Name of the individuals who have changed the law that we learned in class. What laws did they have an impact on?
A
Delwin Vriend
Sue Rodrigez
Viola Desmond
Henry Morgentaler
Sharon Donna McIvor
8
Q
Delwin Vriend
A
He set a precedent that allowed the courts to see that section 15 of the Canadian Charter of Rights and Freedoms did recognize sexual orientation in “the spirit of the law”
9
Q
Sue Rodrigez
A
Applied to the Supreme Court of British Columbia to have section 241(b) of the Criminal Code declared constitutionally invalid (Section 241(b) prohibited assisted suicide). This is because it violates sections 7, 12, and 15 of the Charter - Right to one’s body and own life (she was not living a pain-free life and her right to end her life is protected now under the Charter). Supreme Court of Canada eventually allowed medically assisted suicide in February 2015
10
Q
Viola Desmond
A
Through her persistent advocacy and protests with the help of the Black community, racial segregation was deemed illegal in Canada.
Ripple effect - the small act of challenging the laws that affect where you sit eventually leads to the overturning of many discriminatory laws as a result of recognizing their discrimination
11
Q
Henry Morgentaler
A
The Supreme Court struck down federal abortion law as unconstitutional in 1988, thereby decriminalizing the procedure
Because of how he appeared before the Parliamentary Committee on Health and Welfare
12
Q
Sharon Donna McIvor
A
McIvor took the federal government to court, arguing that section 6 of the Indian Act was discriminatory and infringed on her Charter rights
Section 6 prevented her from passing Indian status to her descendants in the way men can - her grandchildren could not receive Indian status through her bloodline, if she married a non-white man they would not be considered Indian (but this would apply if she were a man)
In response to this case, the federal government introduced new legislation (Bill C-3) in 2011 to counter gender discrimination in the Indian Act
13
Q
Why do we create Royal Commissions?
A
Royal Commissions are boards of inquiry appointed by the government to investigate and report on a particular issue. They will often travel the country holding public meetings, calling witnesses and conducting research. Examples include the 1967 Royal Commission on the Status of Women. We create royal commissions to gather the opinions of the public and investigate significant matters that are of public interest.
14
Q
Give 2 examples of different Lobby Groups in Canada.
A
Lobby Groups are groups of people that try to sway a legislative in a way that favours their cause. They are private and not government-funded. For example, MADD (Mothers Against Drunk Drivers) is a lobby group that allowed for harsher punishments to be put in place for impaired driving. Another example is the World Society for the Protection of Animals Canada - which fought for tighter animal cruelty laws. Lobby Groups are important to Canadian law because they allow for issues that impact citizens to be brought to the attention of the courts and have laws changed as a result.
15
Q
How was our legal system influenced by ancient Rome?
A
Ancient Rome - gave us lawyers and the need for law school as well as Habeus Corpus and the …
12 Tables - 12 Stone tablets, each inscribed with laws. This began a new age where laws written for the promise of equality and all laws would be passed by the government and then publicly available
16
Q
How was our legal system influenced by England?
A
England - gave us portions of the Magna Carta, Common Law, the Rule of Law, trial by combat, and oath-taking
Magna Carta - The first document to put into writing the principle that the king and his government were not above the law (one of the first times the laws were promised to be fair to everybody and not just the rich and powerful)
Common Law - The part of English law that is derived from custom and judicial precedent. Common law in Canada governs aspects of civil and criminal law (forms a basis for the legal system)
Rule of Law - is used as a safeguard for individual rights and freedoms. states that the law is necessary and no one is above the law; the law applies equally to everyone; no one can take our rights away except in accordance with the law (ex. War Measures Act.
17
Q
How was our legal system influenced by The Middle East?
A
The Middle East - gave us…
Hammurabi’s Code and with it the idea of “an eye for an eye”
Restitution (Compensation) - you will be compensated if someone hurts you
Retribution - “An eye for an eye”
Codification - writing down laws for everyone to see
18
Q
How was our legal system influenced by Asia?
A
Fingerprinting
The Book of Punishment - knowing what will happen to you if you do something wrong as it is written down
19
Q
How was our legal system influenced by Greece?
A
Greece gave us… Democracy
Selective Democracy - Created by Cleisthenes of Athens in the 500s BC, however, it has undergone several massive changes throughout history. Only Athenian men who had completed military training could vote. The largest contribution and connection is clearly with modern-day democracy and leaders who do not stay in power for too long
20
Q
How was our legal system influenced by Europe? - France
A
Europe (France) gave us…
Napoleonic Code and the idea of property laws
21
Q
How was our legal system influenced by North America?
A
The Great Binding - Came from five indigenous nations, the Seneca, Cayuga, Onondaga, Oneida, and Mohawk in 1450. It states that if we look after the land it will look after us
Aboriginal systems of justice that emphasize community involvement and rehab are enjoying an increasing measure of respect among Canadian lawmakers.
22
Q
What is common law?
A
Common law is at the bottom of the pyramid - can be overridden by statute and constitutional law. Based on previous decisions made by judges - precedents.
23
Q
What are the 5 legal philosophies we studied in class? Be able to expand on them.
A
Natural Law (Universal)
Legal Positivism (Government-Based)
Legal Realism (Judge Based)
Critical Legal Theory (Legal Realism Magnified)
Feminist Jurisprudence (Feminist perspective of law)
24
Q
Natural Law (Universal):
A
Some philosophers have argued that the world follows fundamental rules of fairness and justice that are always morally correct. Human beings have the ability to use reason and can recognize these higher laws, and so have a moral duty to follow them, even when the laws written down by our societies say otherwise. There are fundamental principles that are always morally correct (e.g., murder is always wrong)
25
Legal Positivism (Government-Based):
Laws should be followed simply because they are laws. Positivists insist that a law need not be moral to be a law – rather, the law should be followed simply because it is the law. Law gets its authority from the power of government. While laws often reflect important moral values, these values are not necessarily natural or universal
26
Legal Realism (Judge Based):
Courts are the authors of the law. The role of the judge is very important – the traits, dispositions, biases and habits of judges are just as important as precedents and legal principles in forming a decision. Thus the predictability of precedent is an illusion. This explains why two different judges can come to different conclusions with an identical set of facts about a case. What is true, moral and fair depends on the perspective of the individual who is creating the law
27
Critical Legal Theory (Legal Realism Magnified):
This theory argues that since laws reflect individual values, they can contain the biases of powerful social groups. Critical legal scholars argue that while the law appears to offer justice for all, in practice it is a tool most easily used by people who already have a high degree of social power and status. This means that the law can actually maintain social inequality by advancing the interests of powerful groups over the interests of marginalized groups. Laws reflect the biases of powerful social groups. E.g. You need an address to vote - what about the homeless people? This system shuts out voices that need to be heard and continues a cycle of privilege -reflects the biases of powerful social groups
28
Feminist Jurisprudence (Feminist perspective of law):
The state (and the law) is viewed as male and thus treats women the way men see and treat women. Laws have been framed to promote patriarchy – even laws that protect women (sexual assault laws) were originally produced to protect male property.
29
Who were the legal theorists/philosophers we studied in class? Give an example from their theories.
Ancient and Medieval Theories of Law
Socrates (Naturalist)
Plato (Naturalist)
Aristotle (Naturalist)
St. Thomas Aquinas (Naturalist)
English Theorists
Thomas Hobbes (Positivist)
John Locke (Positivist)
Jeremy Bentham and John Austin (Positivist)
Modern and Contemporary Theories of Law
Mary Wollstonecraft (Naturalist)
Karl Marx (Positivist)
John Rawls (Positivist)
30
Socrates (Naturalist):
Socrates believes to remain good one should follow what is “just” for the concept of laws. Socrates also does NOT believe in “an eye for an eye.” This saying implies that if you do wrong, I then have the right to do you wrong. He thinks that it is NEVER right to do an injustice even if you were the first to suffer. He believes that laws are just, but can be unjustly used. Any law that doesn’t produce justice and harmony should be disobeyed. His views and theories focus on virtue and justice.
31
Plato (Naturalist):
Believed that the state was organized to help citizens live according to Natural law. Thought that laws must be followed because they are a moral guide. His views and theories would focus on knowledge. He believed in God and God created laws. Humans use their reasoning and their education to do good and follow natural laws.
32
Aristotle (Naturalist):
Said that “The rule of law...is preferable to that of any individual freedom” Views similar to Plato when it came to the dangers of democracy and oligarchy but differed as he did not think education alone was the answer to make people “do good”. He felt only law could compel people and thus should train to become part of the government. Also a believer of the natural law that many philosophers agree with.
33
St. Thomas Aquinas (Naturalist):
Law is an eternal natural law that has been revealed through the bible, especially the 10 commandments through God. Laws need to be in accordance with natural law so that people do what's right. Humans create laws with this in mind to regulate our behaviour and to allow the state to function in the proper fashion.
34
Thomas Hobbes (Positivist):
Hobbes believed that the natural state of Humans was war. The strong and powerful dominate the weak. The law of the Jungle or Anarchy. Hobbes believed that laws should be left to the individual who understands them, a “Philosopher King” This king will understand how to interpret Natural law for the masses, thus creating a Positive law we can follow.
35
John Locke (Positivist):
Believes in individual rights & Freedoms - Private property, Life, and Liberty. Law is simply a tool to preserve law and order and to defend people’s rights. Should a government or leader stop listening to their people/citizens then the people should overthrow that government and replace it.
36
Jeremy Bentham and John Austin (Positivist):
The founder of modern utilitarianism (Bentham), which is an ethical theory that means that your actions are morally right if they tend to promote the most happiness or pleasure over pain to the greatest number of people. Law and morality are separate and all human-made laws can be traced back to human lawmakers. Argued that the laws were rules, like commands
37
Mary Wollstonecraft (Naturalist):
Society keeping women inside as “domestic slaves” was a major detriment as it women back from economic independence. Believed women should be trained in (most of) the same careers as men. Republican for liberty in the sense of not being dependent on or vulnerable to tyrants. Believed some laws were wrong and equality’s importance that women should be treated as equals.
38
Karl Marx (Positivist):
He created “Marxism.” He places importance on the power of economic forces in society rather than the concept of the rule of law. Marxists believe that the material forces (resources) of a society and those that control these forces (the Bourgeoisie/ruling class) will shape the society's legal system. The rich control the poor. The working class is controlled by the ruling class and they use laws to oppress them.
39
John Rawls (Positivist):
Added a requirement to assume that the choice of social justice principles would be impartial. Called his concept of social justice “Justice as Fairness,” which consists of two principles. The 1st principle means that everyone has the same basic liberties, which can never be taken away. The 2nd principle focused on equality → believed that society could not avoid inequalities among its people. He insisted that a just society should find ways to reduce inequalities in areas where it can act. Positivist because he endorsed a form of a positivistic claim for the separation between the concept of law and substantive moral values.
40
What does judicial independence mean?
Judicial independence is the concept that the judiciary should be independent from the other branches of government. judicial officers of the Court have the freedom to decide each case on its own merits, without interference or influence of any kind from any source, including another branch of government. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law. This would hope to diminish any bias.
41
What does Jurisprudence mean?
Jurisprudence is the philosophy or science of law. It is concerned primarily with what the law is and what it ought to be.
42
What does civil disobedience mean, and give an example of it.
Civil Disobedience is where people peacefully refuse to obey a particular law. For example, Gandhi is one of the most renowned practitioners of civil disobedience in modern history. He employed nonviolent resistance as a means to challenge British colonial rule in India. One of Gandhi's most famous acts of civil disobedience was the Salt March in 1930. In response to the British monopoly on salt production and the imposition of a salt tax, Gandhi led a 240-mile march to the Arabian Sea coast to produce salt from seawater, in defiance of British law.
43
What are the main differences between a Primary and Secondary source of law? Give an example of both.
A primary source of law is derived from religion, morality, history, customs, conventions, and social/political philosophy. An example from history could include how Canada incorporates parts of Indigenous law such as the "The Great Binding Law" of the Iroquois Confederacy. While Secondary sources of law include constitutional law, statute law, and common law. For example, Canada’s Charter of Rights and Freedoms would be an example of constitutional law. In summary, primary sources originate from various sources like religion and history, while secondary sources include established legal frameworks such as constitutional law and statutes.
44
Case Law/Common Law:
information “common to all” relying on case law → made by judges.
45
Precedent:
i.e. what came before – applying a previous decision to a similar case. Precedent and common law prevent judicial bias from influencing the laws that are already set → they need to follow what is set.
46
Statute Law:
Statute law is based on government officials' decisions that may reflect the citizen's opinions. Statue law can also override common law. Government reps make statute law - more control as citizens because we elect government officials into power.
47
Conventions:
Conventions are unwritten rules but accepted ways.
48
Ultra Vires:
Ultra vires mean outside the power of a government, like how provincial governments can’t enact gun laws or how the federal government can’t control a province’s education system.
49
Intra Vires:
Intra vires means inside the power of a government like how the federal government can control matters with Indigenous people and how the provincial government can control their police forces.
50
Legal Scholarship:
Producing scholarly issues and books on a particular topic. Feminists have used this tactic to publish feminist perspectives on a wide variety of issues. Examples include – feminist writings on Battered Women’s Syndrome which were fundamental in having this condition accepted as an exculpating factor in self-defence trials
51
Legal Positivism:
Laws should be followed simply because they are laws. Positivists insist that a law need not be moral to be a law – rather, the law should be followed simply because it is the law. Law gets its authority from the power of government. While laws often reflect important moral values, these values are not necessarily natural or universal.
52
Entrenched:
Has constitutional status, can't be changed easily needs an amending formula to change it. Well protected from being changed.
53
Ad Hoc Lobby Group:
“Ad Hoc” meaning at the time. Certain lobby groups - if something happens they respond with an “Ad Hoc” group that is not permanent.
54
Royal Commission:
A board of inquiry appointed by the government to investigate and report on a particular issue. Will often travel the country holding public meetings, calling witnesses and conducting research. Government may act on recommendations but it does not have to. Examples include the 1967 Royal Commission on the Status of Women.
55
Patriate:
(To bring something back) to return or turn over full legislative powers, as of amendment, to (a constitution) that were formerly held by the government of another country: a term used in Canada to describe the action of taking over the power to amend the constitution from the British parliament in 1982.
56
Stare Decisis:
Stare Decisis means to stand by the decision as in precedents made by past judges and use those precedents as Common law.
57
Plaintiff:
A person who brings a case against another in a court of law. (ComPLAINer). Important to Canadian law because we have them.
58
Utilitarianism:
An ethical theory that means that your actions are morally right if they tend to promote the most happiness or pleasure over pain to the greatest number of people.
59
Marxism:
Marxists believe that the material forces (resources) of a society and those that control these forces (the Bourgeoisie/ruling class) will shape the society's legal system.The rich control the poor. The working class is controlled by the ruling class and they use laws to oppress them
60
Feminist Jurisprudence:
The state (and the law) is viewed as male and thus treats women the way men see and treat women. Laws have been framed to promote patriarchy – even laws that protect women (sexual assault laws) were originally produced to protect male property.
61
Legal Realism:
Courts are the authors of the law. The role of the judge is very important – the traits, dispositions, biases and habits of judges are just as important as precedents and legal principles in forming a decision. Thus the predictability of precedent is an illusion. This explains why two different judges can come to different conclusions with an identical set of facts about a case. What is true, moral and fair depends on the perspective of the individual who is creating the law.
62
Battered Women’s Syndrome:
When women in abusive relationships react by killing their spouses. The effects of prolonged spousal abuse were used to advance the justification of self-defence. Battered Women’s Syndrome is not, strictly speaking, a defence in itself but rather an explanation of an abused woman’s state of mind that can be used to help advance the justification of self-defence.
63
Critical Legal Theory:
This theory argues that since laws reflect individual values, they can contain the biases of powerful social groups. Critical legal scholars argue that while the law appears to offer justice for all, in practice it is a tool most easily used by people who already have a high degree of social power and status. This means that the law can actually maintain social inequality by advancing the interests of powerful groups over the interests of marginalized groups. Laws reflect the biases of powerful social groups E.g. You need an address to vote - what about the homeless people? This system shuts out voices that need to be heard and continues a cycle of privilege -reflecting the biases of powerful social groups.
64
Demographics change and laws need to be changed to reflect that. Population, religion, gender, etc. never stagnant and is always changing and the law needs to keep up with that change.
Examples…
Laws need to change to accommodate Canada's rapid growth of new immigrants, (ex. the recently extended 2026 housing ban on non-citizens)
Voting rights laws were changed in 1918 when women were granted the right to vote. Then in 1950 indigenous men and women were granted the right to vote
Bill C-16 added 'gender identity or expression' to the Canadian Human Rights Act to stop discrimination on the basis of gender identity and gender expression
65
How would Technological Changes affect the law?
Examples…
Bill C-27 Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act
Distracted driving laws were created because of cell phones OntarioHighway Traffic Act, Sections 78 and 78.1
Copyright Modernization Act (2012): updates the rights and protections of copyright owners to better combat the challenges of the Internet
66
How would changes in values affect the law? A person's principles or standards of behavior; are one's judgment of what is important in life.
Examples…
1918 Women's Franchise Act (Women's Suffrage)
Women now have the right to own and sell property without the permission of their husbands
Legalization of marijuana
67
How would the National/State of Emergencies affect the law?
Examples…
2001 Anti-Terrorism Act was passed after the events of 9/11
Laurier Palace Theatre was on fire and killed 70+ kids after this a new law was instated to not allow children >16 to enter theatres
The Heron Bridge collapse in Ottawa killed 9 workers and injured 55. Construction Safety Act was created.
68
After learning about the 4 factors that drive fundamental changes to our laws, which factor (in your opinion) has the most influence? Explain why you believe this and give some evidence to back your opinion up.
After learning about the 4 factors that drive fundamental changes to our laws, I think the factor of changing values affects the law the most. I think this because our law is in place to protect society and as a result, our law is demonstrative of a particular society's values. Thus, as our values change and hopefully become increasingly more progressive, our laws are significantly influenced and change with society's values. For example, as religion became less regarded, the idea of divorce was more readily accepted because the value of being with one person until death was not as important. This change in values reflected a society that was open to marriages ending which allowed for Canada's first unified divorce law to be passed in 1968.
69
Law:
A rule of conduct or procedure established by custom, agreement, or authority
70
Justice:
The quality of being just; fairness.
71
Jurisprudence:
The philosophy or science of law.
72
The Need for Law (Why Do We Need Law?)
- Organizes society to provide peace and good order
- Provides predictability and structure for safe and peaceful environments
In order for this system to work, in
- Law is applied to everyone regardless of status
73
The “Rule of Law”
1. Everyone must accept that the law is necessary, no one is above the law
2. The law applies equally to everyone
3. No one takes our rights away except in accordance with the law (ex. War Measures Act)
*The opposite of the Rule of Law is sometimes called the “Rule of the Jungle” or “might is right”
The biggest + strongest are the ones that lead (large, strong males in charge)
Not necessarily the smartest or the best leaders
74
The Functions of Law
Helps us avoid/settle disagreements
Sets out rights and obligations
Provides remedies (i.e. solutions)
Sets up the structure of government
Maintains order and provides protection
Directs how to make new laws/revise laws
Helps solve disputes peacefully through discussion and negotiation or through courts as a last resort
Establish rules of conduct in public
Protects rights and freedom
75
Possibility for Change in a Legal System
What conditions need to exist in order for people to be able to change the law?
- Democracy
- Independent Judiciary (judges independent of the government in power not voted in by a party and biased)
- Rule of Law
76
Delwin Vriend
He set a precedent that allowed the courts to see that section 15 of the Canadian Charter of Rights and Freedoms did recognize sexual orientation in “the spirit of the law”
77
Sue Rodrigez
Applied to the Supreme Court of British Columbia to have section 241(b) of the Criminal Code declared constitutionally invalid (Section 241(b) prohibited assisted suicide). This is because it violates sections 7, 12, and 15 of the Charter - The right to one’s body and own life (she was not living a pain-free life and her right to end her life is protected now under the Charter). Supreme Court of Canada eventually allowed medically assisted suicide in February 2015.
78
Viola Desmond
Through her persistent advocacy and protests with the help of the Black community, racial segregation was deemed illegal in Canada. Ripple effect - the small act of challenging the laws that affect where you sit eventually leads to the overturning of many discriminatory laws as a result of recognizing their discrimination.
79
Henry Morgentaler
The Supreme Court struck down federal abortion law as unconstitutional in 1988, thereby decriminalizing the procedure. Because of how he appeared before the Parliamentary Committee on Health and Welfare.
80
Sharon Donna McIvor
McIvor took the federal government to court, arguing that section 6 of the Indian Act was discriminatory and infringed on her Charter rights. Section 6 prevented her from passing Indian status to her descendants in the way men can - her grandchildren could not receive Indian status through her bloodline, if she married a non-white man they would not be considered Indian (but this would apply if she were a man)
In response to this case, the federal government introduced new legislation (Bill C-3) in 2011 to counter gender discrimination in the Indian Act.
81
There are four primary ways for groups of people to effect change…
Lobby Groups
Royal Commissions
Legal Scholarship
Political Demonstrations
82
Lobby Groups:
(there are two types)
A number of people trying to influence legislators on behalf of a particular cause or interest.
There are Two Types:
Ad hoc – an organization created for a specific purpose for a short period of time
National Organization – Which represents a particular group of people on a permanent basis.
Examples include – the Canadian Council for Tobacco Control and an ad hoc group that pushed for gun control after the Montreal Massacre.
83
Royal Commissions:
A board of inquiry appointed by the government to investigate and report on a particular issue. Will often travel the country holding public meetings, calling witnesses and conducting research. Government may act on recommendations but it does not have to. Examples include the 1967 Royal Commission on the Status of Women.
84
Legal Scholarship:
Producing scholarly issues and books on a particular topic. Feminists have used this tactic to publish feminist perspectives on a wide variety of issues. Examples include – feminist writings on Battered Women’s Syndrome which were fundamental in having this condition accepted as an exculpating factor in self-defence trials.
85
Political Demonstrations:
The most common types are Protest rallies where large groups of people carry signs and listen to speeches (Days of Action) or Civil Disobedience where people peacefully refuse to obey a particular law (Ghandi, Martin Luther King). Sometimes protests can turn violent either by design or through infiltration by people with a more extreme agenda (OCAP, Summit of the Americas in Quebec , G20 in Toronto).
86
“Battered Women’s Syndrome” -
When women in abusive relationships react by killing their spouses. The effects of prolonged spousal abuse were used to advance the justification of self-defence. Battered Women’s Syndrome is not, strictly speaking, a defence in itself but rather an explanation of an abused woman’s state of mind that can be used to help advance the justification of self-defence.
87
Self-defence:
The use of reasonable force to defend against an attack.
88
What did we generally get from the Middle East?
Hammurabi’s Code and with it the idea of “an eye for an eye”
Restitution (Compensation) - you will be compensated if someone hurts you
Retribution - “An eye for an eye”
Codification - writing down laws for everyone to see
89
What are the specific laws from the Middle East?
Hammurabi’s Code - One of the earliest and most complete written legal codes created by the Babylonian king Hammurabi (1792 to 1750 B.C.E).
The Code of Ur-Nammu - The Code of Ur-Nammu is the oldest law code found in Mesopotamia and was written by King Ur-Nammu or his son Shulgi, dating back to between 2100 & 205. Emphasized the idea of written laws and established many penalties for various crimes. He heavily focused on FINES and punishment regarding money.
10 Commandments - Teaches us to be conscious of our actions and hold others accountable
90
What did we generally get from Europe? - France
The idea of property laws (France)
91
What are the specific laws from Europe?
Justinian Code - One of the main concepts from the Justinian Code was the introduction of the idea of "Innocent until proven guilty" & the development of using Lawyers
Cannon Law - created within the Catholic Church and became a legal system
Draco’s Law - Draco's Law was established in Athens around 621 BC during a period of political issues. It is known for its severity, the law had harsh punishments, including death, for a wide range of offences.
Napoleonic Code - The Napoleonic Code, also known as the French Civil Code, was created in 1804 under the leadership of Napoleon Bonaparte. The Napoleonic Code emphasized equality before the law, property rights, and the sanctity of contracts.
92
What did we generally get from Greece/Rome?
Democracy (Greece)
Lawyers + law school (Rome)
Habeus Corpus - to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful.(Rome)
93
What are the specific laws from Greece/Rome?
12 Tables - 12 Stone tablets, each inscribed with laws. This began a new age where laws written for the promise of equality and all laws would be passed by the government and then publicly available
Solon Law - constitutional law that was used to separate 4 classes the Pentacosiomedimni, Hippeis, zeugitae and thetes
Lycurgus of Sparta - Lycurgus created a military culture, using tax money to fund the Spartan army. This parallels the heavy focus on military spending in the USA.
Selective Democracy - Created by Cleisthenes of Athens in the 500s BC, however, it has undergone several massive changes throughout history. Only Athenian men who had completed military training could vote. The largest contribution and connection is clearly with modern-day democracy and leaders who do not stay in power for too long
94
What did we generally get from the Americas?
A lot of Indigenous ideas of community involvement as a consequence of crimes committed
Also, laws that emphasize protecting our environment
95
What are the specific laws from the Americas?
Declaration of Independence (USA) - states that all men are created equal and have unalienable rights, something seen today in many Western countries that promote equality
The Great Binding - Came from five indigenous nations, the Seneca, Cayuga, Onondaga, Oneida, and Mohawk in 1450. It states that if we look after the land it will look after us. Aboriginal systems of justice that emphasize community involvement and rehab are enjoying an increasing measure of respect among Canadian lawmakers.
Aztec Laws - A system of courts and judges determined guilt and punishment. They had different levels of courts all the way up to a supreme court
96
What did we generally get from England?
Portions of the Magna Carta, Common Law, the Rule of Law, trial by combat, and oath-taking
97
What are the specific laws of England?
Magna Carta - The first document to put into writing the principle that the king and his government were not above the law (one of the first times the laws were promised to be fair to everybody and not just the rich and powerful)
Common Law - The part of English law that is derived from custom and judicial precedent. Common law in Canada governs aspects of civil and criminal law (forms a basis for the legal system)
Rule of Law - is used as a safeguard for individual rights and freedoms. states that the law is necessary and no one is above the law; the law applies equally to everyone; no one can take our rights away except in accordance with the law (ex. War Measures Act.
98
What did we generally get from Asia?
Fingerprinting
The Book of Punishment - knowing what will happen to you if you do something wrong as it is written down
99
What are the specific laws of Asia?
Lao-Tzu - Chinese philosopher who founded the philosophical system of Taoism. He believed that strict laws and rules need to be put in place to get rid of negative impulses through
Fingerprinting - Dates back to 1000 BC in China, Babylon, Persia, etc.
The Great Qing Legal Code - Established the format of China’s criminal and civil laws. A set of instructions to officials and higher authorities that tried to list punishments for every possible offence to maintain law and order (ranked by severity)
Aryan Cast System (India) - 4 class divisions during the Vedic Period (1750-500 BCE) in India.
Book of Punishment - It is a collection of engraved plates, where each plate depicts a punishment and a list of crimes that warrant it
100
Natural Law (Universal):
Some philosophers have argued that the world follows fundamental rules of fairness and justice that are always morally correct. Human beings have the ability to use reason and can recognize these higher laws, and so have a moral duty to follow them, even when the laws written down by our societies say otherwise. There are fundamental principles that are always morally correct (e.g., murder is always wrong)
101
Legal Positivism (Government-Based):
Laws should be followed simply because they are laws. Positivists insist that a law need not be moral to be a law – rather, the law should be followed simply because it is the law. Law gets its authority from the power of government. While laws often reflect important moral values, these values are not necessarily natural or universal
102
Legal Realism (Judge Based):
Courts are the authors of the law. The role of the judge is very important – the traits, dispositions, biases and habits of judges are just as important as precedents and legal principles in forming a decision. Thus the predictability of precedent is an illusion. This explains why two different judges can come to different conclusions with an identical set of facts about a case. What is true, moral and fair depends on the perspective of the individual who is creating the law
103
Critical Legal Theory (Legal Realism Magnified):
This theory argues that since laws reflect individual values, they can contain the biases of powerful social groups. Critical legal scholars argue that while the law appears to offer justice for all, in practice it is a tool most easily used by people who already have a high degree of social power and status. This means that the law can actually maintain social inequality by advancing the interests of powerful groups over the interests of marginalized groups. Laws reflect the biases of powerful social groups. E.g. You need an address to vote - what about the homeless people? This system shuts out voices that need to be heard and continues a cycle of privilege -reflects the biases of powerful social groups
104
Feminist Jurisprudence (Feminist perspective of law):
The state (and the law) is viewed as male and thus treats women the way men see and treat women. Laws have been framed to promote patriarchy – even laws that protect women (sexual assault laws) were originally produced to protect male property.
105
Origins of Natural Law
Early Civilizations: did not distinguish between the forces responsible for the physical properties of the natural worlds and the forces regulating human behaviour. Deities (gods) were accountable for everything and every action, natural or human. Natural phenomena were the only judges of man's actions.
Question: What was the flaw of this belief?
“God made me do it” - no consequences for your actions
You can do anything in the name of God because “I believe that I can kill people, God told me to”
106
Plato - Shortcomings: believed humans could never fully achieve absolute eternal truth and virtue, but their laws should at least strive to do so. Hence, a human lawmaker (gov’t) should be a servant of the universal laws which aim for true happiness for all citizens. Only great philosopher kings possessed the wisdom to ascertain virtuous laws and understand absolute justice.
Question: What are the shortcomings of this theory?
What makes one happy may not make another happen and one’s happiness may be at the cost of someone else's (slaves, marginalized groups,e etc)
Philosopher kings - someone’s biases could run rampant - who is the philosopher king??
I don't know if it strikes a balance between the idea of natural law (some things that should always be right and wrong) allows for the idea of critical theory to come in
Feminist - the idea that those who are more powerful (more money) will be able to dominate others
People will have to follow laws simply because they are laws (not all laws are good - segregation laws, etc)
107
Cicero - worksheet: believed that law was the standard of justice and injustice as measured by the mind and the reason of intelligent man. He acknowledged the moral and legal superiority of higher laws, however, and was the first to advocate civil disobedience against civil (human) laws perceived to be in conflict with nature. He believed nature was best served when the common good was served.
Question: What breakthrough had Cicero introduced?
Introduced the idea that there’s a difference between human-made laws and higher natural laws
While human laws are important for society they should always align with “natural law”
The breakthrough was that he said that if a human law goes against natural law, people have the right to peacefully protest it
Shows that individuals have to stand up for what is right, even if it means going against the government
Breakthrough - saying that laws made by people should always follow a higher moral standard, and if they don't, it's okay to peacefully challenge them
108
Early British Law
The Isle of Britain was conquered by Roman Empire in the 1st century CE; brought their legal system
109
Common Law
(history)
The law is common to all of us
Gives us predictability to the law → commonality to how you will be punished with precedents
From time of King Henry II (1154-1189)
Had assizes (travelling courts) and circuit judges (who travelled)
They would sit in a village every number of months and people would give their grievances forward to them (ex. Neighbour stole the pig)
The judges would give them remedies
Found that the same types of crimes were occuring frequently (starting to see commonalities in crimes)
Judges came together and decided to write these crimes down and the punishments that come with it
Which formed the idea of precedent
110
Case Law:
Made decisions based on similar cases in the past and began to record their decisions
111
Common Law:
information “common to all” relying on case law → made by judges
112
Stare decisis:
Latin phrase meaning “stand by the decision” (present-day we rely on “precedent”)
113
Rule of precedent:
i.e. what came before – applying a previous decision to a similar case
Precedent and common law prevent judicial bias from influencing the laws that are already set → they need to follow what is set
114
Magna Carta
Magna Carta = Great Charter
- First contract between the people and the leader
- The leader is not above the people or the law, can not just create laws, etc.
First step in establishing individual rights
Recognized “The Rule of Law,” that everyone was equal before the law (even the king, and those who enforced the law)
Back then: it was made by noblemen and really only applied to nobles, and males. Those who were working class did not have this applied to them and were considered below everyone
Preserves the right of “innocent until proven guilty” → this is entrenched in the Constitution and Charter
Ex. this is different from some countries (e.g. France → you are guilty under proven innocent → harder to prove someone innocent)
115
Habeas Corpus
Latin for “you must have the body”
This means that someone arrested must appear before the court in a reasonable amount of time and not be held in prison
If you are not before the court at a reasonable time, that goes against your rights and you can be released with your charges dropped
You can’t be tried for your charges without you being in court or physically present in court
The government must justify his or her imprisonment in front of a judge
116
Socrates (Naturalist):
Socrates believes to remain good one should follow what is “just” for the concept of laws. Socrates also does NOT believe in “an eye for an eye.” This saying implies that if you do wrong, I then have the right to do you wrong. He thinks that it is NEVER right to do an injustice even if you were the first to suffer. He believes that laws are just, but can be unjustly used. Any law that doesn’t produce justice and harmony should be disobeyed. His views and theories focus on virtue and justice.
117
Plato (Naturalist):
Believed that the state was organized to help citizens live according to Natural law. Thought that laws must be followed because they are a moral guide. His views and theories would focus on knowledge. He believed in God and God created laws. Humans use their reasoning and their education to do good and follow natural laws.
118
Aristotle (Naturalist):
Said that “The rule of law...is preferable to that of any individual freedom” Views similar to Plato when it came to the dangers of democracy and oligarchy but differed as he did not think education alone was the answer to make people “do good”. He felt only law could compel people and thus should train to become part of the government. Also a believer of the natural law that many philosophers agree with.
119
St. Thomas Aquinas (Naturalist):
Law is an eternal natural law that has been revealed through the bible, especially the 10 commandments through God. Laws need to be in accordance with natural law so that people do what's right. Humans create laws with this in mind to regulate our behaviour and to allow the state to function in the proper fashion.
120
Thomas Hobbes (Positivist):
Hobbes believed that the natural state of Humans was war. The strong and powerful dominate the weak. The law of the Jungle or Anarchy. Hobbes believed that laws should be left to the individual who understands them, a “Philosopher King” This king will understand how to interpret Natural law for the masses, thus creating a Positive law we can follow.
121
John Locke (Positivist):
Believes in individual rights & Freedoms - Private property, Life, and Liberty. Law is simply a tool to preserve law and order and to defend people’s rights. Should a government or leader stop listening to their people/citizens then the people should overthrow that government and replace it.
122
Jeremy Bentham and John Austin (Positivist):
The founder of modern utilitarianism (Bentham), which is an ethical theory that means that your actions are morally right if they tend to promote the most happiness or pleasure over pain to the greatest number of people. Law and morality are separate and all human-made laws can be traced back to human lawmakers. Argued that the laws were rules, like commands
123
Mary Wollstonecraft (Naturalist):
Society keeping women inside as “domestic slaves” was a major detriment as it women back from economic independence. Believed women should be trained in (most of) the same careers as men. Republican for liberty in the sense of not being dependent on or vulnerable to tyrants. Believed some laws were wrong and equality’s importance that women should be treated as equals.
124
Karl Marx (Positivist):
He created “Marxism.” He places importance on the power of economic forces in society rather than the concept of the rule of law. Marxists believe that the material forces (resources) of a society and those that control these forces (the Bourgeoisie/ruling class) will shape the society's legal system. The rich control the poor. The working class is controlled by the ruling class and they use laws to oppress them.
125
John Rawls (Positivist):
Added a requirement to assume that the choice of social justice principles would be impartial. Called his concept of social justice “Justice as Fairness,” which consists of two principles. The 1st principle means that everyone has the same basic liberties, which can never be taken away. The 2nd principle focused on equality → believed that society could not avoid inequalities among its people. He insisted that a just society should find ways to reduce inequalities in areas where it can act. Positivist because he endorsed a form of a positivistic claim for the separation between the concept of law and substantive moral values.
126
Socrates was a
Naturalist
127
Plato was a
Naturalist
128
Arisotle was a
Naturalist
129
St. Thomas Aquinas was a
Naturalist
130
Thomas Hobbes was a
Positivist
131
John Locke was a
Positivist
132
Jeremy Bentham and John Austin were
Positivists
133
Mary Wollstonecraft was a
Naturalist
134
Karl Marx was a
Positivist
135
John Rawls was a
Positivist
136
Primary Sources of Law
Religion and Morality
History
Customs and Conventions
Social and Political Philosophy
137
Religion and Morality
Nation’s religious heritage
Laws change as morals change
138
History
Reflects both French and English heritage, as well as First Nations Law, and such as “The Great Binding Law” of the Iroquois Confederacy
139
Customs and Conventions
Long-established traditions
Conventions” are unwritten rules, accepted ways
140
Social and Political Philosophy
Social movements (civil rights)
Philosophy (socialism, Thomas Hobbes “peace, order, good gov”)
141
Secondary Sources:
Constitutional Law
Statue Law
Common Law
142
Common Law:
At the bottom of the pyramid - can be overridden by statute and constitutional law
Based on previous decisions made by judges - precedents
*Stare decisis - to stand by the decision
Distinguishing a case - when previous decisions do not apply and judges reject them to create a new precedent
143
Statue Law:
Laws passed by elected representatives/governments
Generally overrides common law but when no statute exists for a particular situation, the common law prevails
Each level of government enacts laws within its own jurisdiction (*intra vires) laws that are found to be outside of its jurisdiction may be struck down (*ultra vires)
144
Constitutional Law:
Sets out the structure of government
Establishes the basic laws, principles and standards that all other laws must follow
Establishes the conflicting principles of parliamentary supremacy and judicial independence
Laws that do not adhere to the Constitution can be struck down by the courts
Supreme court judges - get to make decisions about constitutional law
The supreme court is appointed though so people are having say over the laws that we never voted in
145
International Law:
Laws which have validity in a number of countries according to agreements made by sovereign member nations i.e. the United Nations Universal Declaration of Human Rights.
146
Domestic Law:
Laws which can only be enforced within the jurisdiction of a particular sovereign nation i.e. the Canadian Criminal Code
147
Public Law:
Laws that govern and regulate the interactions of the state and its subjects. There are three types of Public Law: Constitutional, Administrative, Criminal
148
Private Law:
Legal rules that govern people’s private relationships. The main types of Private Law are:
Tort, Contract, Family, Estate & Property
149
Distribution of Legislative Powers
Federal Government:
Peace, order and good government
Criminal law
Unemployment insurance
Banking
Federal penitentiaries
Marriage and divorce
Postal service
First Nations and their lands
150
Distribution of Legislative Powers
Provincial Government:
Property and civil rights
Education
Police forces and provincial courts
Provincial jails
Highways and roads
Hospitals
151
PRINCIPLE OF EQUALIZATION:
Federal money should be transferred to provinces in order to ensure equal services.
152
Intra Vires
“within the power”
Something within a government’s jurisdiction
153
Ultra Vires:
“beyond the power”
Something outside a government’s jurisdiction
i.e. provinces cannot pass laws changing the treatment of young offenders; this is a criminal matter and is under the power of the federal government.
154
Changing Our Constitution:
Must reflect the beliefs and values of a state (country); therefore must be open to change (amendment)
Before 1982, Canadians had no ability to change their constitution, which was controlled by Britain
Judicial amendments: courts can interpret and define the construction
Amending formula
155
Customs:
: A legal custom is the established pattern of behaviour that can be objectively verified within a particular social setting.
156
Trial by Oath Helping:
Trial by Oath Helping: giving testimony under an oath at the stand in a trial (back then: an oath to God)
In the past, you would swear on a bible. Now, you would swear to tell the truth. If you don’t tell the truth, you are accused of perjury and will be jailed and fined
157
Trial by Combat:
back then: actual combat to the death or first blood! Today it is done through lawyers
Now, our courts are still combative with two sides opposing each other
