Concepts, Theories, and Theorists Flashcards
what does our understanding of the law depend on?
PERSPECTIVE and CIRCUMSTANCE
what is the purpose of law?
to BALANCE the INTERESTS of individuals against those of the community, and to UPHOLD SHARED VALUES of a society while RESOLVING CONFLICTS
what concepts are used to form rules and systems?
MENS REA (guilty mind), MOTIVE (reason for an act), INTENT (goal of an act)
how is understanding the state of mind behind a persons actions used?
it can DETERMINE the existence of LIABILITY or CRIMINAL RESPONSIBILITY
what is the essence (purpose/ goal, what it encompasses) of law?
understanding the RELATIONSHIP between certain SIMILAR, BUT DIFFERENT, LEGAL CONCEPTS
what is democracy?
a FORM of GOVERNMENT in which the POWER RESIDES IN (and is exercised by) the PEOPLE through a SYSTEM OF REPRESENTATION
what is the issue with representation within democracy?
representatives CANNOT REPRESENT EVERYONE, there will be people who did not vote for them, they must try and balance how they represent (will lean towards who voted for them)
what is sovereignty?
PRINCIPLE that nation-states are free to IMPOSE whatever LAWS THEY CHOOSE (within their own BOUNDARIES). at the FEDERAL level
what is a nation-state?
SOCIETY with defined BOUNDARIES and LAWS
how did the UN change sovereignty?
LIMITING SOVEREIGN POWER of nation-states that agreed to membership. idea that INTERNATIONAL LAW could be used to GUARANTEE individuals RIGHTS AGAINST ABUSE
what is jurisdiction?
the LIMITS within which POWER or AUTHORITY may be EXECUTED and ENFORCED (more limited than sovereignty, can be at different levels and geographic limits: school boards)
what is power?
the ABILITY to ACT, or REFRAIN FROM ACTING (the “power” to go to the bathroom). teachers are given authority, students are the ones who give them the power. POWER is derived from LEGAL AUTHORITY, but can be obtained without it
what is authority?
the LEGAL RIGHT to do something (you do not have the “authority” to go to the bathroom). teachers are given authority, students are the ones who give them the power. POWER is derived from LEGAL AUTHORITY, but can be obtained without it
what is legitimacy?
something LAWFUL or RECOGNIZED by LAW, the lawful right to inherit either property or title (ex. legitimate heir/ next of kin, teacher vs substitute)
what is ownership?
one who has LEGAL TITLE to a property or possession, the LEGITIMATE OWNER
what is a right?
a CLAIM that is RECOGNIZED and SUPPORTED by the FORCE OF LAW (government has an OBLIGATION to give you)
what is a freedom?
the ABSENCE of CONSTRAINT (NOT RESTRICTED) in choice or action, the quality of being EXEMPT from BURDEN or OBLIGATION (ex. catholic school board, freedom, not right)
what is the difference between a Right and a Freedom?
with a RIGHT, you HAVE TO, with a FREEDOM, you are WELCOME TO
what is an obligation/ duty?
CONDITION of being MORALLY or LEGALLY BOUND to something. a right only has power if there is a duty to enforce it, with a legal right the state is obligated to provide it
what is the Social Contract Theory?
we live in society in accordance with an AGREEMENT that establishes MORAL and POLITICAL RULES of BEHAVIOUR. as a citizen of a nation you are in a contract where you perform certain duties for rights and freedoms. if you CHOOSE TO LIVE in a COUNTRY, you CHOOSE TO FOLLOW their RULES.
what is equality?
everyone is TREATED the SAME, even if it means UNFAIR RESULTS
what is equity?
everyone is TREATED FAIR (different support), like cases treated alike. permits a judge to depart from a strict application of the law
what is utilitarianism?
PHILOSOPHICAL THEORY that states laws should be BASED ON what is PRACTICAL and REALISTIC, rather than idealistic views (needs of MANY OVER needs of FEW, ex. trolley example)
what is humanity?
KINDNESS TOWARDS HUMANKIND.
what is morality?
that which might RENDER an ACTION RIGHT or WRONG to an individuals PERSONAL PRINCIPLES. different people have their own sense of right and wrong. morals may be determined by religious, cultural, or societal beliefs
