Chapter 1 Flashcards
Learning
Describe the Basic Structure of Legal Rules?
If A, B, and/or C = then X
AB&C are elements that must be present for X to occur.
Some rules may have more or fewer elements
What is one way to differentiate morality from ethics?
Morality, what is right or wrong, focuses on the behaviour of the individual
Ethics focuses on the standards of behaviour in defined social settings.
Is a lie ever justified?
Yes - it certainly can be justified. It may not be right in the legal sense of the word, but it could be morally right.
if you have the ability to hack a system that will prevent a nuclear missile launch - that will kill millions - it would be right in an Instrumentalist approach, but not in a deontological approach.
What is a Deontological Approach?
theory that focuses on the inherent rightness or wrongness of behaviour without regard to the behaviours consequences or outcomes.
Don’t hack the system to save millions of people ‘hacking is illegal’
What is an Instrumentalist Approach to justice?
Theory that focuses on something - for example - justice or the law as a means to an end.
if succeeded, the community will be safer.
Compare Corrective Justice with Retributive Justice?
Corrective Justice stands where there is equal balance and one puts the other at a disadvantage, the correction should return equality to both. Loss must be rectified or corrected.
You damage my fence, you pay to replace / fix it. (corrective)
Retributive Justice stands on the principle of an Eye for an Eye.
What area of Law would you most likely see Retributive Justice
Criminal Law
What area of Law would you most likely see Corrective Justice?
Private Law and Tort Law
Describe the relationship between Law and Religion?
For most states there is a separation between church and state.
Religious beliefs certainly have the potential to influence the law - thus separation.
Describe Natural Law?
Natural law is said to come from a higher power beyond what is created by humans for humans. It likely draws on existential beliefs.
Describe Legal Realism?
Legal realism is where the legal system cannot operate in a vacuum. There are many outside factors to consider. it is subject to many flaws and weaknesses of other human activities.
Describe Positive Law?
positive law is when the laws are drawn up by the people for the people. They are human made laws.
What is the Rule of Law? and some of its basic principles?
Rule of law follows that Everyone is Equal before the law and that the law and its power should not be used arbitrarily.
- No one can be punished except for breaches to published law
- the law applies to everyone
- Every person has the ability to apply before the courts (use the courts)
What is Substantive Law?
Under Positive Law (human made law), Substantive law deals with core rights and obligations.
it is civil and common
Procedural Law is the opposite.
What is Procedural Law?
Under Positive Law (human made law) Procedural Law deals with process by which:
“core rights and obligations are determined and enforced. “
When cases are thrown out on failed procedures - fairness was not achieved. Police follow strict procedures
