DCC2117 - Intro to Law Flashcards
Explain how law is commonly defined
A system of enforcable rules that governs the relationship between the individual member of a society and between those mebers and the society itself
Name 2 different types of Jurisprudence
Analytical jurisprudence - Critical explanatory and value-free assessments of the law
- What is Law?
Normative Jurisprudence - Rightness or wrongness of the law
- What the Law ought to be
Describe the nature of legal language and some recent developments in that area
- Plain language movement 1970 - simplifying contracts for consumers to prevent unnecessary litigation
- Law is always developing and changing
Three types of rules
- General rules or standards of behaviour
- Conditioned rules
- Power-conferring rules
Structure of rules
If A, B, and/or C, then X
Define Morality and ethics
- Morality
Standards of wrong and right
Descriptive (what a particular community thinks is right or wrong) or
normative (set ideal standard, have an objective truth - Ethics (set of right and wrong for a specific group of people
What’s the relationship between Law and ethics?
System of Values and shared by a common group?
How does Justice relate to the Law?
Justice (not always = to law)
Seen in two ways
1. As an end in itself, or
2. As an instrument or a means to an end
Types of Justice
- Corrective Justice = underlies private law debates (best suited for private law disputes)
- Moral responsibility for the harm they cause to another (neighbour pays for damage) - Retributive Justice (most relevant to criminal Law)
- Lex talionis
- Eye for an eye
- Perceived need for punishment - Disruptive justice
- The way in which assets and entitlements are shared among members of a society (taxes)
- Public law matters with Marxist or socialist perspectives
How does Religion Relate to the Law?
influence of Christianity on western law
- The charter guarantees religious freedom
What is Jurisprudence?
The philosphy or science of Law
Four recognized fields of Judisperds
- Natural law theory
-Divine law, virtue, reason, morality, -human nature
-Higher than human-made, which human law must comply in order to be valid - Legal positivism
- Majority of Canadian legal system based on
-Human-made - We are rulers and makers
(positivism law)
-The theory that only valid sources of law tend more toward analytical
CRITICS = Nazism
-All commands of the sovereign are valid and enforceable ie. Commands - Legal Realism
-Developed in the US and Scandinavian countries
-Study of the process by which laws are made and applied
-Emphasis on logic and further desired social objectives
-Legal realities - Legal Pluralism
- Coexistence at the same time, of a plurality of organs producing legal norms.
- In the 21st century we have many law makers (too many) and individuals must respect different legal rules that each person applies
E.g Sarez bitting ear his country, fifa, other country
Marxist theory of law
Distribution of wealth in a society related to distributive justice
Feminist Theory of Law
Improving opportunities for women is the main focus
Critical Race Theory
The law focuses on race-based inequalities
- Ethnic minorities are subordinate
What is the Rule of Law
- Everyone in society, regardless of their social or political position should be treated equally before the law
- Power under the law should not be used arbitrarily
Magna Carta = placed limitations on royal powers
3.Anyone who is denied a right/liberty may seek a remedy in court
What is Critical legal studies
Exposing law as being abused and altered As an institution of rich ppl
What is Utilitarian
Max profit = Max benefit for the population
Difference between Indigenous and Aboriginal Law?
Indigenous = Made by the communities
Aboriginal = Made by the government
What did William the Conqueror do
Unification and centralization contributed to the formation of the common law system
Curia Regis
A group of nobles who advised the king governing the country
Kings Peace
The ideal peace and well-being of a nation that the English monarch was obligated to uphold and protect
Writ Systems (common law rules)
- Court of Common Pleas (civil and landholding disputes)
- Court of Kings bench (Criminal matters
- Exchequer Court (Revenue matters involving the king)
What is it
- Form that the king gives
-Justice wasn’t really possible
-If you buy the wrong one it will delay and expire your case
Equitable Justice
Court of chancery
- Established later to grant relief on grounds of equitable justice outside the writ system, a parallel system of civil procedure
- If people are not able to access justice in the three categories thy can ask for a different option
What happened in 1689
Bill of Rights declared that the “pretended” power of the crown to legislate without the consent of the parliament was illegal
- previously the king or the queen was the lawmaker in England, but from this day forward the king and or queen couldn’t make law only the member of the parliament
Judicuate Acts
1873 Unified courts under a single system and simplified court procedure
Precedent
Judges apply earlier judicial decisions to present cases if fact and law similar
Binidnig = Mandatory
Persuasive =
in Canada each province is considered a separate jurisdictions and decisions from other provinces could be persuasive, but not binding
Stare Decisis
Judges must decide cases according to binding residence set by higher courts in the jurisdiction
Modifications of Precedent
- Overruled by an even higher court
-No longer applicable because of social change
-poorly reasoned and has a lot of reputation as a good law
-has been reinterpreted differently by other judges
Modified in 1966
The adversarial court process
Truth will best be determined when opposing lawyers present their cases without interference from the trial judge
civil law
- Primary source is private law
- One document with all the answers
- Don’t use the president
-Come from the roman empire
Code of Hammurabi
oldest surviving leagal code
Corpus Juris Civillis
Emiorer Justinian codifies Roman law and makes Corpus Juris Civillis
Renaissance
Renewed interest in classical learning including Roman law
common law vs. civil law
civil law
- Non-binding
- Active judges, ask questions to the witness and try to find the truth by themselves
- Doctrine is a very important document in the system
Common Law
-Public
- binding
- Lawyers ask questions and interrogate not the judge
-Only persuasive
Harmonize Common and civil law
The Supreme Court of Canada is composed of 9 judges, three judges must come from Quebec (civil law lawyers)
And now we have an aboriginal new Aboriginal-appointed judge to include an Aboriginal perspective
Customary law
Religious law
-Sharia
- Middle east
- Usually mix with civil law
Bijural
Countries with two legal systems
Aboriginal Law
sub-area of Canadian public law that involves the rights, land claims, and other legal issues relating to indigenous peoples in Canada as defined
Indigenous law
This is the law of indigenous peoples themselves without reference to Canadian law as determined of validity
What did the federal government try to do in 1969? (when referring to aboriginal people)
the federal government released a new policy for indigenous peoples, which proposed measures including repealing the Indian act and eliminating indian status. This policy was found in the White Paper
Define Inuit
Living in northern regions
Arrived in Canada more recently than First Nations crossing the Bering Land bridge 4000 - 8000 years ago
Define Metis
Mixed indigenous and European ancestry
It refers more specifically to the members of the metis nation whose homeland was generally in western Canada
Define First Nations
Refers to the original inhabitants of Canada who are not Inuit or metis
First people to encounter European colonies
Ancestors first arrived in the Americas from East Asia 20,000 years ago
Terra Nullius
international law justifying a nation’s claim of sovereignty over land that rests on the assumption that the land is unoccupied or is not owned
Doctrine of discovery
A principle of international law emanating in part from a series of papal bulls issued in the 1400s that gave authority to European nations to “discover” and claim sovereignty over lands occupied by non-Christians
Doctrine of Continuity
Under this principle, the laws, the customs of indigenous people no matter how the lands have been acquired, remain in effect until taken away by British Colonial law
UNDRIP
United Nations Declaration of Indigenous Peoples
Set out an international framework for ensuring, indigenous identities, peoples, dignities, and respect. The enjoyment of all human rights recognized under the UN charter
Declaration of the granting of independence to colonial countries and peoples
Un level declaration
End to colonialism in all its forms and manifestations
TRC/ Truth and reconciliation
The federal government agreed to fund TRC after they discovered the abuse in Residentials schools in Canada
Six-volume final report by 2015,
Included 94 recommendations in the form of “calls to action”
Nature of Indigenous law
- Difficult to classify - there are hundreds of indigenous communities in Canada and no single indigenous law/traditions
Gayanashagowa
Great Binindng Law or greate of peace: written peace laws of the indigenous people
Constitution of the Iroquois Confederacy
John borrows five sources of indigenous law
Devine, Naturlaisitc, Positivistic, deliberate, customary
