Ch. 1 and 2, Law and Theory

Question 1

Define Chief Justice Lamer and the Dagneis Framework.

Answer 1

The Dagenais framework has since served as a model for determining the reasonableness of other restrictions on open court, after it was modified from the Oakes test. Advanced the rights of crime victims by hearing the appeal and voice of a third party; helped to recognize victim privacy in the charter.

Question 2

Define the Oakes Test.

Answer 2

A limit on a Charter right must be “reasonable” and “demonstrably justified.” this applicable test must pass the limit in order for it to be limited. There must be a pressing and substantial objective.
The means must be proportional. The means must be rationally connected to the objective. There must be minimal impairment of rights. There must be proportionality between the infringement and objective.

Question 3

Define positivism.

Answer 3

Theory that laws are to be understood as social rules, valid because they are enacted by the sovereign and derive logically from existing decisions, and that moral consideration should not limit the operation of a law.

Question 4

Describe the positivist perspective.

Answer 4

-Mechanical analysis of law and logic with no regard for the values in law
-seek quantitative and qualitative facts to explain how this should work, but do not look for the moral context.
-Adherence to a just legal process is more important than the specific content of the laws.
-Law should be the outcome of political process, not involved in it
-May interpret the intentions of lawmakers, though not the morals
-rooted in the British doctrine of parliamentary supremacy; parliament can make or unmake any law and no individual can override this

Question 5

Define the concept of a “Social contract”.

Answer 5

Law ties individuals to the collective through a binding, democratically constructed agreement
-The state is therefore an expression of the sovereignty of the people who live within it as the people elect the government

Question 6

Describe legal philosopher H.L.A Hart and his primary beliefs.

Answer 6

-Rejected the concept of God-given laws
-Law is a secular construction; legal positivism
-Law and morality must not be in relationship in the law
-Argued that law should still be subject to moral criticism

Question 7

Describe John Austin and his primary beliefs.

Answer 7

-Law and morality are seperate; all laws can be tracked back to human construction
-Law is a social fact
- Law is the command of the sovereign (law is what the state says it is): means there is an obligation to follow the law according to the social contract

Question 8

Define the principle of nulla poena sine lege.

Answer 8

Nulla poena sine lege is a legal principle which states that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law.

Question 9

How does positivism impact law and penalty?

Answer 9

There can be no penalty without a valid law: one cannot be charged with a criminal offence for an action that was not a crime when they committed it. Court of Germany and Nazi officers example; they could not be charged as these actions were not a crime at that time. Therefore, by a rigorous legal process, injustices in these circumstances cannot be rectified.

Question 10

Define natural law and its primary arguments.

Answer 10

Morality must be linked to laws; there is inherently morality within laws
-Originated from Aristotle, Plato, and Soccrates; then built itself upon Christian theology
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Question 11

Define the concept of lex iniusta non est lex.

Answer 11

An unjust law is no law at all; a natural law concept.

Question 12

Outline the limitations and criticisms of natural law.

Answer 12

-Anyone can invoke their version of “natural law” and moral compass to justify actions
-Illustrating morality in long is not objective and therefore difficult to enact
-Those who are not bound by religious morality have difficulty determining morality in laws whatsoever
-There is no single guide to morality and a moral center is often obscure

Question 13

Outline the limitations and criticisms of legal positivism.

Question 14

Define Roger Cotterell and his primary beliefs.

Answer 14

States that natural law is dead, morality cannot be a grounding principle for creating and maintaining the law

Question 15

Define legal realism and its primary arguments.

Answer 15

-Argue that in order to understand the legal process, one must be aware of the political, economic, and social contexts in which law arises, changes, and persists
-Legal doctrine cannot be understood without empirical study of the social, economic, and political context in which it takes place
-Legal realism developed as a consequence of positivism to understand and describe what it was missing: social environment must be consulted before making decisions
Law is appropriately used for social engineering; law is more than a technical process
Law can be used for negative social engineering based on the values of “collective good” rather than individual wellbeing (sterilization laws)

Question 16

Describe legal realist Karl Llewellyn’s theories.

Answer 16

Argue that it is a method for achieving a more grounded understanding of law and its processes
-Judges must clarify and interpret the intent of existing law and legislature

Question 17

Define the Marxist theory of law, as well as dialectical materialism.

Answer 17

-Overthrow the state and its order
-Capitalism is a dictatorship oppressing the working class
-Historically called for violence and reform
-Relationship between human beings and material circumstances is dialectical
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Dialectical Materialism: the Marxist theory that political and historical events result from the conflict of social forces and are interpretable as a series of contradictions and their solutions and material needs are the source of this conflict

Question 18

Describe Robert Heilbroner’s support for Marxism.

Answer 18

Agreed with the dialectical view of reality to clarify knowledge of the world
-Agreed that social organizations could cause incredible bondages

Question 19

Describe the Critical Legal Perspective.

Answer 19

-Examine the purposes, values, and assumptions of the legal system (not extraneous factors like legal realism)
-Challenge the validity, rationale, and relevance of laws
-Merges legal realism and Marxist theory: uncover illusion in legal form, points to issues of social disadvantage

Question 20

Describe the Feminist theory of law.

Answer 20

-Language and logic of law reinforce male values
-Conceptions of law perpetuate male power
-Laws impacting marriage, divorce, reproductive rights, and employment are of the most concern
-First wave dealt with social and legal inequalities of the nineteenth century (voting rights, laws surrounding marriage, lack of educational opportunities by voicing displeasure
-Second wave dealt with lack of access to contraceptives, female sexual expression, discrimination against various women by challenging the culture driving these things
-Third wave dealt with legal theory, denounces the objectivity of the law,

Question 21

Define the Anarchist perspective of law.

Answer 21

-Suspicious of all forms of state control
-Synonymous with nineteenth century libertarianism
-State cannot be trusted, is violent, and does not do what’s best for the people
-Economy should be organized according to cooperation and communal ownership

Question 22

Define libertarianism and its arguments.

Answer 22

-freedom of the individual from state control
-People govern themselves
-No welfare, no social security system, no safety net, self-interested focused on selfishness basically

Question 23

Define egalitarianism.

Answer 23

the doctrine that all people are equal and deserve equal rights and opportunities.

Question 24

Describe the Carter v. Canada Case.

Answer 24

Case which enabled assisted suicide to become legalized.

Question 25

Describe the difference between the Anarchist and Libertarianism perspectives.

Answer 25

“Anarchism” has a negative definition: opposition to top down hierarchies of power such as the corporations and the state. LEFT WING LIBERTARIANS BASICALLY
“Libertarian” refers to a viewpoint that places great emphasis on positive liberty: controlling your life, controlling decisions to the extent you are affected by them, self-management over work & community, and access to the means to develop your potential.,

Question 26

Define the Magna Carta.

Answer 26

Began the shift from English monarchy to democracy in 1215; rulers were no longer absolute but still adopted feudalism in exchange.

Question 27

Define feudalism.

Answer 27

Political and economic system that granted nobility and land in exchange for labor and military service of serfs or vassals on land.

Question 28

Define the Battle of the Plains of Abraham.

Answer 28

The Battle of the Plains of Abraham took place on 13 September 1759. The Plains of Abraham are in Quebec City. It was fought between the French and their Indigenous allies against the British. The British won; The Royal Proclamation Act, British North America Act, and the Constitution Act stemmed from here

Question 29

Define the Quebec Act.

Answer 29

It revoked the Royal Proclamation of 1763, which had aimed to assimilate the French-Canadian population under English rule. The Quebec Act was put into effect on 1 May 1775. It was passed to gain the loyalty of the French-speaking majority of the Province of Quebec. Based on recommendations from Governors James Murray and Guy Carleton, the Act guaranteed the freedom of worship and restored French property rights.

Question 30

Define the Constitution Act.

Answer 30

Divided Quebec into upper and lower Canada; created legislative and executive branches of government in each of the Canadas, and was modeled on the emerging British parliamentary form.

Question 31

Describe the government structure which resulted from the Constitution Act.

Answer 31

executive branch of government (composed of lieutenant governor and council appointed by him)
Legislative branch (2 houses, Legislative Council and a Legislative Assembly)
WAS NOT representative democracy; only responsible for ensuring British interests, not Canadian

Question 32

Define the 1840 Act of Union.

Answer 32

Created the United Province of Canada, Kingston was the capital: and later allowed Canada to be a self-governing nation state

Question 33

Define the British North America Act, 1867.

Answer 33

Canada’s original and defining source of law, setting out the respective powers of federal and provincial governments, as well as a strategy for legal governance of the country

Question 34

Define domestic law.

Answer 34

the law of a single nation-state.

Question 35

Define international law.

Answer 35

Law that is common to all nation-states. Regulated by the United Nations, involving governance and accommodation of nations in relation to global treaties, conventions, and customs

Question 36

Describe the divisions of all forms of domestic law.

Answer 36

Public, private, substantive, and procedural.

Question 37

Describe the difference between public and private law.

Answer 37

If the area of law is concerned with the definition and regulation of individual matters, it is private law (real estate, torts, contracts, etc.)
If the area of law involves collective interest, it is public law (constitutional and criminal law)

Question 38

Define the categories of private law.

Answer 38

Contracts, real estate, property, family law, wills and trusts, torts, company law, the law of agency, patent law

Question 39

Describe Hammurabi’s code.

Answer 39

Sixth king of Babylonia the seventeenth century inscribed on rock in the temple; dealt with economic issues and family, criminal, and civil laws in Babylon

Question 40

Describe Confucius’s philosophy.

Answer 40

Chinese man who developed a system of philosophical and ethical teachings that substantially influenced the development of Chinese law.

Question 41

How was law historically categorized?

Answer 41

Written or unwritten: legislation is written; case law, custom, and books of authority are unwritten

Question 42

Define statute law and its sources in Canadian law, as well as how a statute is passed.

Answer 42

Statutory law or statute law is written law passed by a body of legislature; House of Commons and the legislative assemblies of the provinces and territories are the sources.
Government submits bill into the House of Commons/Legislative Assembly and the first reading proceeds; then passes to a second reading without debate. Purpose for the bill is set out; full debate ensues. Then is sent to committee of the house or assembly, with government and opposition members, then further debate where amendments are proposed. Governor general and liuetenant governors must give final approval.
Other law sources in Canada are law books of authority, case law, historical beginnings, and customs

Question 43

Define case law and judicial precedent.

Answer 43

Established decisions in specific court cases; subsequent court cases of similar issues will turn to these verdicts (judicial precedents) if the case occurs in the Supreme Court of Canada. Provincial court decisions have little to no judicial precedence.

Question 44

Criticisms of judicial precedents as law.

Answer 44

Courts and council might make illogical distinctions with relevance to new and similar cases. Supreme Court may sometimes reverse itself regardless of previous precedents due to the presentation of new evidence: by reversing these decisions the judge is excising quasi-legislative power (A legislative-like act undertaken by an entity other than a legislature.)

Question 45

Define a headnote.

Answer 45

Summary of all the facts of a case, the issues in dispute, and the reason for the courts decision;. 3
Ratio decidendi: rationale for the judge’s determination of law in relation to the case
Obiter Dicta: legal pronouncements on issues not directly relevant to the present case and carry substantial weight in future cases that are related

Question 46

Describe appellate court.

Answer 46

Court that takes on repeals and redresses for sentences.

Question 47

Define custom.

Answer 47

Practices and patterns of behavior through which society comes to order itself.

Question 48

When was capital punishment abolished and what clause resulted?

Answer 48

1976; “faint hope clause” allowed some early perroll of convicted murderers, also rose minimum prison sentences

Question 49

When did drug criminalization laws in Canada begin?

Answer 49

Began in 1908, Wilifried Laurier,importation, manufacturing, and sale was impacted
Hansard was the first recorded proceedings of the debate in the House of Commons regarding this issue: designed to solve a labour issue at the time of Asian opium manufacturer workers

Question 50

Describe the Narcotic Control Act of 1961.

Answer 50

set terms of life imprisonment for importation or trafficking in narcotic,

Question 51

Define absolute discharge and conditional discharge.

Answer 51

Absolute discharge: no criminal record, merely a finding of guilt and no penalty
Conditional discharge: completion of a condition, typically probation

Question 52

Describe the Safe Streets and Communities Act.

Question 53

Define the open court principle, both its critic isms and benefits.

Answer 53

-Supports democratic process
-Allows for people to have faith in the justice system
-Allows for democratic debate of the court’s proceedings
-Holds all officials in the court accountable to society
-Can violate victim privacy
-Can stigmatize legal process for certain victims and the accused