chapter 1 Flashcards
how does cardozo define law?
rule of conduct that is entrenched to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged
what is stare decisis in the idea of precedence?
(stand by what has been decided) = judges should build on the precedents established by past decisions
- precedents are the rules and laws that are newly formed when encountering a new case with diff facts
what is the def of pragmatic approaches?
based off of practical ideas and ruling instead of theoretical ideas or rulings
what are the 5 aspects of the official version of law?
- universal and impartial- rule of law
- constituted by formal and rational system of rules and procedures
- morally defensible - should be just fair and moral
- certain ind with certain roles to interpret and apply the law
- if there is disobeying against the law threats of coercion or force with happen
what was max webers thought on how order will become law?
order will be called law if it has a high probability that the physical or psychological coercion will be given to the disruptors of society by those who are instructed to do so
what are the 3 basic features of law? (compliance)
- pressure to comply come externally in form of actions or threats of actions by others
- external actions or threats always involve coercion or force
- only those who are in authority to apply coercion or force must do so
what is state law?
set of legal rules and regulations that are created by and enforced within a particular state by certain ind
what are customs and usages?
way of behaving which is traditional for a particular society that have been long established (feels like law)
firmly established and generally accepted practice or procedure that is repeated
- custom is the general rule coming from the repeated acts or practices
what are conventions?
rules of conduct that involve sense of duty and obligation
- expressions of disapproval on ind who don’t conform
- lacks authoritative figure to inflict coercive power
what are the 2 main criticisms of webers def of law?
- too much emphasis on coercion and fails to mention other things that make ind obey the law
- eg. idea that ppl feel obeying is their duty
- limits the use of the term “law” in cross cultural and historical contexts
- eg. “staff” - may not have an organized administrative idea in society
what is doland blacks def of law?
the normative life of state and citizens such as legislation and litigation
what are the 4 styles of social control and what 2 categories can they fit into?
penal, compensatory, theraputic, concillatory
accusatory (winner and loser)
remedial (help ppl in trouble and help bad situation)
what are the two accusatory styles?
- penal = deviant viewed as violator of prohibition and should be subjected to punishment
- compensatory = ind have contractual obligation and owes victim restitution
what are the two remidial styles?
- therapeutic = deviant conduct is abnormal and needs treatment and help
- conciliatory = deviant behaviour represents one side of social conflict in need of resolution without consideration of who is right and wrong
what is the main function of law?
regulate and constrain the behaviour of ind and their relationships with one another
- used when formal and informal methods fail to reduce behaviour
what are the two categories of the content of law?
substantial and procedural
what is substantial law/primary rules?
rights, duties and prohibitions administered by courts about which behaviours are allowed and which behaviours are not
- define the conduct that is allowed
what is procedural law/secondary rules?
rules concerning how substantial laws are to be administered, enforced, changed and used by players in the legal system (primary and secondary laws)
what is public law?
concerned with structure of gov, duties and powers of officials and relation between ind and state
- includes administrative law, constitutional law, criminal law, and distribution of roles and responsibilities within political institutions
- R. v (name)
what is administrative law?
how the executive branch agencies interpret administer, and enforced legislation that has been assigned to them
- eg. FBI has statues that they operate under - many criminal
what is constitutional law?
body of law that defines the role, powers, and structure of different entities within a state, including the executive, legislative, and judicial branches, CCRF
what is constitutional law?
body of law that defines the role, powers, and structure of different entities within a state, including the executive, legislative, and judicial branches, CCRF
what is private law?
substantive and procedural rules governing relations between ind (civil law rooted in private law)
eg. contract law, marriage laws, tort law etc.
- feels as if ind or group has harmed you
what are torts?
violations of civil statutes (wrongs for where injured ind may seek compensation for harm endured- usually in form of payment from offender)
- eg. wrongfully dismissed
what is criminal law?
crime, prosecution and penal treatment of offenders (intentional harm that affects all of society)
- crimes are offences against the state or the people
- crime is public law - state that takes action against offender
SUPREME COURT OF CANADA WORKINGS READINGS BUT NOT DEF
what is leave to appeal?
occurs when you appeal to the court to move up to higher court for a case involves question of public importance that can be served as precedent
- some cases - right to appeal to SC is automatic
- eg. acquitted at trial but guilty at court of appeal
what does ultra vries mean?
actions taken by a person or organization that is beyond their power
what is a litigant?
and ind, organization or gov official that is involved within a civil legal case who wants to solve disputes
what are the two types of litigants and their defs?
one-shotters = those who use courts occasionally (author suing publisher for breach of contract)
- more concerned with substantive result of their case
repeat players = those who engage in many similar litigations over a period of time
- usually organizations (moving, finance etc.)
- more concerned in the ways decisions will affect similar cases in future
what s a respondent?
the party or group thais is being sued or tried
- big businesses most successful when they appear as respondents
who are appellants?
person or organization who applies to a higher court for a reversal of the decision of a lower court
- gov - success rates over 50 as both appellants and respondents
what is the role of the lawyer?
intermediary position between disputants and courts to transform litigant complaints into legal disputes
- repeat players
what are the first 2 types of trial lawyers?
- reps of public interests - concerned with consumer interest and protection of the environment
- only takes on important cases - reps of particular interests and organizations
last two types of lawyers?
- criminal defence lawyers
- roles such as advocating for clients and attempting to attain victory
- negotiatory between law and client
- councilling the client about what could happen and the process - serving ind who hire them
- interested in only the case at hand
- wants the best outcome for their client
what is common law?
law that is not written down in legislation or codes and is based on stare decicis and precedent
what is case law and what is it based on?
body of opinion of judicial decisions developed by judges over time in course of deciding particular cases
what is precedence?
precedent = judge is bound by what has already been decided (certainty, predictability and continuity)
- conforms to the idea that like wrongs deserve like remedies and the desire for equal justice under the law
- helps ind plan conduct in expectation that past decisions will be honoured in future
what are the three main problems with treating like cases the same?
- norms of society changes
- bad past decisions that don’t match with modern society
- when constantly enforced - hesitant to use certain principles in fear of it causing issues in future cases
what happens when there is no precedent?
search previous cases for analogies that could be used and when found turns into a landmark case (first time that this decision is being made)
what does codified mean?
converting judge-made law or uncodified statutes enacted by the legislature into statute law
how is the idea of indigenous being incorporated in the law?
- overlooked by courts
- incompatible with common law systems (more focused on restoration)
- indigenous law is diverse
what are the 3 executive powers?
federal - laws that apply to all of canada (national defense)
provincial - laws such as healthcare, education etc.
municipal - laws such as parking regualtions, housing etc.
what is royal assent?
when the attorney general or the sovereign is the only one that can grant a legislation into an official law
what are the 3 main rules in statutory interpretation?
- literal rule = statute should be applied literally in all cases
- golden rule = used in cases where the literal interpretation is absurd - court can move from LI only when removing the conflicting aspect
- mischief rule = when have confusing statutes attention given to problem statutes was created to solve
what is a constituency?
a body ofvotersin a specified area whoelecta representative to a legislative body
what are the 3 types of influences on lawmakers?
direct influence
group influence
indirect influence
what is direct influence?
- pressures that offers rewards or sanctions to lawmakers
- rewards for compliance - punish for noncompliance
- make certain decisions consistent with interests of certain powerful groups and courts
what is group influence?
- organized interest groups representing a special body of voters
- public opinion rep by organization leaders
- public opinion becomes organized around specific issue or immediate objective
what is indirect influence?
- legislators act in accordance with the body of voters preferences because they share the same preferences
- lawmaker acts as instructed delegate - decisions made on behalf of desires of particular body of voters
why is law so complicated?
- different how its written and how it is practised
- diff in how judges interpret and apply the law
- law is not consistent in applying the law to similar cases
what are the 2 ways that the UN is becoming more important?
- become such a global nations and we depend on countries in things that we lack
- have more issues that need unification
what are the 2 ways that the UN is becoming more important?
- become such a global nations and we depend on countries in things that we lack
- have more issues that need unification
what is the legislature and the two branches?
federal body that makes laws and bills and decides what should be considered
- senate - 105 members elected by Gov gen to rep regions of country
- HOC - 338 members rep electorial districs
