Chapter One

Question 1

Three Types of Rules that make up the law

Answer 1

1. General norms or standards of behavior, 2. Condition rules , 3. Power-conferring rules.

Question 2

Structure of Rules

Answer 2

If A, B, and/or C, then X

Question 3

Conjunctive

Answer 3

• if elements are joined by “and” (A,B and C), it is called “conjunctive” list. This means that all elements must be satisfied or proven in order for the legal result to occur.

Question 4

Disjunctive

Answer 4

If the elements are joined by (A,B OR C), it is a disjunctive list. In this case, only one of the elements must be satisfied or proved in order for the legal result to occur.

Question 5

definition of Morality

Answer 5

standards od rights and wrong, often associated with personal character

Question 6

What are the two perspectives of morality?

Answer 6

Descriptive - simply viewing what a community believes is wright or wrong. No judgment, just describing things as they are.
Normative - we believe it to have an objective truth, or set on ideal standard. Accept and are invested in it. A moral code in this light tells us how we should behave. Conduct that offends the code is considered immoral.

Question 7

What is the definition of Ethics?

Answer 7

standards of right and wrong often applied to specific groups - for example, professions

Question 8

Meta-ethics

Answer 8

a sub-branch of ethics - area deals with basic questions such as how we determine what is good or bad and the nature of behavioral standards.

Question 9

What are the two ways justice can be considered?

Answer 9

1. as an end in itself 2. as an instrument (that is, a means to an end).

Question 10

What is Deontological

Answer 10

Theories that focus on the inherant rightness or wrongness of behaviors, without regards to the behaviors consequences or outcomes.
They would see justice as a means to an end

Question 11

Deontologicalis from what Greek deon meaning?

Answer 11

Obligation, duty

Question 12

What is instramentalist ?

Answer 12

Theories that focus on something - for example justice or the law - as a means to an end. eg the desired social end might be for example, a safer community or the reduction of peverty.

Question 13

Corrective Justice

Answer 13

Theories of justice according to which 1, a person has a moral responsability for harm caused to another, and 2, the latter’s loss must be rectified or corrected.
Most closely attached with deonological approach - taking justice as an end in itself.
More relevant to private law disputes

Question 14

Retributive Justice

Answer 14

Theory of justice based on le talionis, or the law of retaliation
Relates more to criminal law and to the receieved need for punishment.

Question 15

Is retributive justice viewed as an end in itself or as a means to an end?

Answer 15

It can be seen as either
that is, as a self - evidently appropriate response to morally wrong behaviour
Or as a means to a socially worthwile objective, such as public safety or appeaseament. it is a hybrid theory - with both deontological and instrumentalist aspects.

Question 16

Distributive Justice

Answer 16

Theory of justice concerned with appropriate distribution of entitlements such as wealth and power, in society
It is more concerned with public law matters than private law. eg. government inititative m ay involve raising taxes to par for new programs to assist a minority community. cost of program that would benifit a minority would be adistributed among all tax payers.

Question 17

Just Society

Answer 17

Phrase coined by Pierre Trudeau during his bid to win the 1968 Liberal Party ledership Campiegn.

Question 18

Jurisprudence

Answer 18

also know as “philosophy of law” or “science of law”; concerns theories that are used to describe, explain or criticize the law.

Question 19

What are two ways to classify theories of law?

Answer 19

Analystical - theories are concerned with what the law is Normative - theories that are concerned with what the law ought to be
They are not mutually exclusive - they are hybrid theories - they seem to challenge or subvert the distiction between analystical and normative.

Question 20

What is Natural Law Theory?

Answer 20

Theory that there is a source of law that is higher htan man-made law, with which man-made law mist try to comply

Question 21

What is the source of Natural Law?

Answer 21

IS it virtue, divine law, reason, human nature, morality, how do we know it, evaluate the standards to guide us? PG 10
Fuller believes that we find “natural “ moral standards through analyzing social behaviour and human nature.

Question 22

What is Legal Positivism?

Answer 22

Theory that only valid source of law is the principles, rules and regulations expressly enacted by the institutions or persons within a society that are generally recognized as having power to enact them.

• It is Natural law’s main opposition as a legal theory
• on a scale of ought and is (tha is, mormative versus analytic jurisprudence), legal oisitivism tends more towards analystic, evaluating laws and legal system without, for the most part, placing value judgement on them.

Question 23

What is positive law?

Answer 23

human-made law, as apposed to higher law (natural law) that transcends persons or institutions
Fair to say that Anglo-Canadian legal tradition has a positivist basis. The principle of parliamentary soverignty means that laws made in accordance with the recognized process are valid reference to external standards. PG 12

Question 24

What is Legal Realism?

Answer 24

A theory developed by the US and Scandanavian countires, that encourages a more thouroughly empirical study of the process by which laws are made and applied.

• positivest view that law is a human invention
• is subject to many of the flaws and weaknesses of other human activities.
• Many legal realist focus on the judicial process - a single part of the overall legal system-specifically how judges make their decisions

Question 25

Law and society

Answer 25

a kind of legal study that looks at law from a broadly social, interdisciplinary perspective

Question 26

sociology of Law

Answer 26

a kind of sociological study that looks at law from a broadly social, interdisiplinary perspective

Question 27

What is one important issue debated in both “Law and society” and “ sociology of law”?

Answer 27

Both debate whether law comes about through consensus or through conflict within a society.

Question 28

Marxist theories of law

Answer 28

legal theories, based on the writer of the communist philosopher Karl Marx, that are concrned with the distribution of wealth in society; related to distributive justice theories.
- these theories are compatible with distributive justice thinking

Question 29

Femenist theories of law

Answer 29

theories of law that generally concern the legal, social, and economic rights and opportunities of women.

Question 30

critical legal studies

Answer 30

theory of law largely concerned with exposing law as an instrumenta of the righ anc powerful (also know as “CLS” or “CRIT”)
- CLS is critica race theory - a kindred theory of femenist jurisprudence

Question 31

Rule of Law.

Answer 31

a key concept whose central tenents are that everyone s equal before the lawand that power under the law should no be used arbitrality.
- concerned with fairness

Question 32

What are the two central tenants to Rule of Law?

Answer 32

1. everyone in a society; regardless of his or her social or political position, should be treated equally before the law; and
2. power under the law should not be used arbitraliry.

Question 33

Origins of Rule of Law

Answer 33

• Greek and Romans
• Not recognized during the dark ages but resurfaces in the Middle Ages when King John of England - his barons turned on him so the legal document Maga Carta (1215) was created which recognized some of the barons liberties and the king gave up some if his power.
• Prominence through AV Dicey - widely recognized as the father of modern English constitutional law.

Question 34

What are the basic principles of Rule of Law? What were AV Diceys three core rule-of-law principles?

Answer 34

1. the law must trump the influence of arbitrary power. It follows from this that no one can be punished except for breach of an established law as determined though an established process before the courts.
2. no one is above the law, whatever his place in society - the law applies equally to everyone - it recognizes judicial process that will ,make the ruling to ensure this occurs.
3. personal rights and liberties must be protected be giving every person the ability to apply to the coursts for a remedy should any of those rights and liberties be denied. - how effective that protection is depends directly on how free our courts are from political interference.

Question 35

Possible flaw in his theory?

Answer 35

they relate more to “procedural” fairbess than to substantive” fairness. deals with how laws are applied (procedural) rather than with the fairness of the laws themselves (substantive).

Question 36

Division of law

Answer 36

Substantive Law - deals with core rights & obligations
Procedural law - law relating to the process which core rights and obligations are determined and enforced.
Domestic law - law of particualr state or society
Public international or International law- relating primarily to treaties and customs, and inter-state relationships.

Question 37

Public Law

Answer 37

Law dealing with the legal relationship between state and individual members of the state.

Question 38

Private law.

Answer 38

laws that concern the relationship between persons

Question 39

Military law

Answer 39

a constitutional separate and relatively self-contained system of law regulating the Canadian Forces.