Basic Theories of Law Flashcards
What is Legal Positivism
A theory that reflects the belief that law is nothing more than the rules and principles that actually govern or regulate a society
It separates law and morality
What is Natural Law
A theory that argues that for law to be true it must connect with the values accepted by society
Law must adhere to certain moral truths
Re Drummond Wren [1945] OR 778
Example of Natural Law
The judge in this case attempts to appeal to our moral conscience
Judge specifically mentions moral duty and public good
R Noble and Wolf
Example of Positivism
Judge relies on the certainty of positive law
What are Normative theories of law
Theories that are concerned with the ends and justifications of the law as a whole
What is the Feminist perspective on law
A theory that looks at the extent to which women are disadvantaged by legal rules and institutions that arise in societies that are patriarchal
What is the Persons Case
Edward v AG Canada [1930] AC 124
Early feminist movement case to determine whether women were considered “persons” for the sake of s 24 and could be considered candidates for the Senate
What are Critical Legal Studies
A theory that rejects that there is any kind of “natural legal order” discoverable by objective means
Law is not neutral
Law is necessarily intertwined with social issues
R v S(RC) [1997] 3 SCR 484
An example of critical legal studies theory in practice
A case that recognises bias within society and the law
What is the theory of law and economics
The belief that law is grounded less in moral theory and more in ideas about efficiency
Seeks to explain law in operation
R v Gladue [1999] 1 SCR
- Landmark Supreme Court case on considerations for Aboriginal peoples
- Creation of gladue reports: personal histories that outline mitigating factors for the judge to consider
- Section 718.2(e) Criminal Code 1985: all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to circumstances of Aboriginal Offenders
- Gladue Rights: Special consideration that judges must give an Aboriginal person when setting bail or during sentencing
R v Morris 2021
-The court held that social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility
- The rule in R v Gladue does not apply to black offenders
- Experience with anti-black racism does not impact gravity of the offence
Canada inc v Keele Sheppard Plaza Inc 2021 ONCA 371
Court held that judges are allowed to consider societal realities pertaining to racism in society
