Final exam review Flashcards
Define divine law
law is the product of God’s will which people incorporated into their own legal codes
Define natural law
certain standards have existed, and will always exist and that law and justice should reflect these long-term standards
- assumed to be universal
Define positive law
Law is as the law makers sat it is
Legal formalism
the judge should follow the law as is written and does not have the authority to change it
Legal realism
courts are the real authors of the law
Feminist jurisprudence
based on the argument that the law upholds political, economic and social inequality for women
- made for men and has a strong gender bias
Critical legal studies
- it’s about value-choices. the law exists to support the interests of people in power
- law and lawmaking are not neutral and can be used as an instrument for injustice and oppression
Virtue jurisprudence
the law exists to promote virtuous behaviour
Marxist jurisprudence
the law is a tool for the ruling parties: the rich and the powerful
- not a tool for change and reform
Sociological jurisprudence
legal decisions should be judged in light of the effects they will have on society
- a court’s decision must be shaped by the social effects it will create
Spirit of the law
- read between the lines
- judges should consider the underlying values and purposes of the law when applying it.
Popular morality
belief that the voice of the community should shape the court’s decision
- justice should reflect the moral of the majority
Critical morality
argues that courts should listen to the more defensible and reasonable view of the community, not necessarily the majority.
What are the three primary sources of law?
- customs and conventions
- religion
- social and political influences
Customs and conventions
customs: general practices and rules generated in ancient society to deal with everyday situations.
- passed on between generations via word of mouth
- some continued to exist despite becoming unnecessary and others became written laws.
conventions: agreements or arrangements that are not necessarily part of a formal contract but binding to the parties involved
- also may mean doing things simply because it is the way they have always been done
- long-standing unwritten rules often considered binding contracts
Religion
primary source of law
“Supremacy of God” is included in the charter but the church has no official position in the Canadian legal system
- inclusion shows religion has helped shape our laws
- Mosaic law: the 10 commandments
- some have stayed, some have become irrelevant like children can’t play in the park on Sunday, illegal to shop in Ontario on Sunday, children recite “lord’s prayer” before every school day.
Social and political influences
- law cannot be separated from social, political, economic and cultural characteristics of a country
- laws reflect the values of citizens - individual rights and freedoms, protection of people and property, and even distribution of wealth
- some might disagree.
- role of women
- 1983- official repeal of the offence of rape
- laws that are too far behind or ahead of societal values are unlikely to be followed.
Secondary sources of law
- constitutions
- statute law
- case law
constitutions
- enacted in 1982
- basic blueprint for governance
- gives government the power to make laws (jurisdiction)
- charter of rights and freedoms is part of the constitution therefore laws must be based around it
statute law
- a law made by people elected at a federal or provincial level
- also includes municipal bylaws
- ex: criminal code, highway traffic act, education act, etc
case law
- recorded decisions of judges on past cases
- involves enacting legal principles from past judgements onto new situations
- rule of precedent (stare decisis)
law as a legal concept
when we label laws as “good” or “bad”, we state whether they conform to terms like “justice”, “equality”, “morality”, and “legitimacy”.
we value laws based on their qualities rather than their purpose
ex: we agree that stopping child abuse is a valuable purpose of the law but most of us would object to giving police unlimited access to our homes to fulfill this purpose.
law as a legal system
law comprises a network of agencies, institutions, and procedures developed to perform a certain function
law as a set of rules
prescribe our rights and freedoms. they should reflect our ideals and values but may appear to restrict freedoms.
Jurisprudence
study of different interpretations and meanings of law
- helps us better understand the law
- allows us to predict future directions of law
- gives us a means of understanding our legal heritage
why do we need laws?
- law is an instrument of society, reflecting the values of society
- a mechanism for resolving disputes
- protects people, rights, and property
- provides order in society
different perspectives for jurisprudence
history, religion, customs, morals, philosophy
Ancient tribal societies
Small bands of hunters who developed a standard of behaviours to deal with every day situations.
- not a lot of rules and passed down by word of mouth
- no strict punishment for fear of being outcast
- common punishment
Egyptians
- religion was very important to these people
- people lived in fear of disobeying their god
- for many centuries priests or religious leaders and the ruler worked independently
- in Egypt around 3000 BC the ruler and religion came together
- the pharaoh was seen as a link between humans and gods
- people had a religious and civic duty to follow the rules
Code of Hammurabi
- Hammurabi was the king of Babylon in 1750 BC
- first account of written laws
- carved into pillars in the centre of the temple so no one could say they didn’t know what the law was
- the laws were very harsh and had strict punishment
- punishment followed principle of retribution (an eye for an eye)
- no distinction between a deliberate and an accidental act
- sometimes the innocent were unfairly punished
- but no one was punished until he was tried and found guilty.
Hebrew or mosaic law
- based on the Ten Commandments that god supposedly presented to Moses on top of mount Sinai amid thunder and lightning
- Moses was to interpret these laws and rule accordingly, people had little say in it
- rules were less harsh than Hammurabi
- distinction between accidental and deliberate acts so the law tried the guilty and protected the innocent
- problem: Moses was both the legislator and the magistrate. People had no say.
Greek law
- first Democracy
- all male citizens were considered free and equal before the law
- could participate in deciding if someone was guilty or innocent
- first jury system
- it was thought a man should be judged by his fellow citizens
- no judge
- jury of about 1000 citizens
- a disc was deposited into a ballot box: solid = innocent and disc with a hole = guilty
- positive: people can hear and decide on cases
- negative: jury didn’t discuss verdicts so could be a biased result since family and friends could volunteer to be on the jury
- women, children and non citizens were not considered equal
Roman law
- as laws grew too many there needed to be people trained to understand them
- forerunners for lawyers
- Justinian, the Emperor, organized laws into sections similar to the criminal code
Anglo Saxons
- Romans occupied Britain for around 400 years and when they left the Anglo saxons took over
- established the same rules throughout the land
- land was the most valuable property
- divided the land into 34 shrines or provinces
- shire courts: met twice a year and decided about land titles
- hundreds of counties
- met once per month and decided criminal offences
- made up of towns
- met three times per year to deal with local offences
- laws were unwritten for a long time and based on customs and traditions
- law was common but didn’t apply to the king or upperclassmen
- in cases where a verdict was difficult it was left up to god
- believed in difficult or dangerous situations god would aid the innocent: trial by ordeal
- ex: trial by bread and cheese. Speaks clearly: innocent
- trial by water: drowns - innocent, floats - guilty
- used comparators: someone who testifies in favour of someone
Norman justice
- began when Normandy invaded England
- feudal system -
- King
Lord Lord Lord
Vassal vassal vassal vassal vassal vassal - still no equity since lords ran their manors and made their own laws
- law didn’t apply to lords and the king
- in the 11th century common law was established and travelling judges when shrine to shrine to decide similar cases
- established precedent
- precedent gives uniformity as similar cases have similar decisions; predictability as they’re based on past cases so lawyers are able to tell their clients what to expect; and impartiality since the judge can’t be biased as the decision will be based on past cases.
In 1215
- king John signed the Magna Carta stating the beginning of democracy since it stated everyone is equal under the law including the king.
- eliminated some corruption
- landlords usually listened to land disputes
- by 1219 also started listening to criminal disputes
- also acted as witnesses initially
The French influence
- civil law
- based on the Justinian code
- civil law refers to the type of law where all laws are codified in statutes
- enacted by Napoleon - inquisitorial rather than adversarial
- still used in Quebec for non-criminal and non-constitutional matters
Aboriginal influences
- law based on oral traditions
- 1450 established the Iroquois confederacy
- underlying principle that hierarchy breeds conflict
- added healing circles and sentencing circles to the judicial system
Factors that cause the law to change
- demographic changes
- technological changes
- national emergencies
- changes in values
Demographic changes
changes relating to birth and death rates or trends in immigration, education, and employment.
- for example, in 1900 in Canada, most people lived in rural areas and only men worked in most households. today, most people live in urban centres and most households have both spouses working. As the transition was made, more laws and regulations were added to ensure workplace safety in factories and laws regarding sanitation, public health, and housing were made to make sure people had a safe environment to live and work in.
Technological changes
changes in law made due to the advancement of technology
ex: internet
it has become necessary for the government to create laws regulating the distribution of porn online
changes in values
shifts in values held by a majority in society that are demonstrated and brought up to the government by lobby groups.
ex: smoking/vaping
drinking and driving
terrorism
texting and driving
National emergencies
laws put into place after a national emergency
ex: the war measures act introduced after WW1 which gives the federal government the power to restrict civil liberties of Canadians, was invoked by Pierre Trudeau during the oct. crisis in 1970.
Ex 2: anti terrorism act introduced after 9/11 which among other things, gave the police and security forces increased investigative powers.
Rule of law
the 5 aspects
- transparency
- stability
- accountability
- predictability
- due process
Rule of law (what is it?)
general acknowledgement that no one is above the law and it applies equally to everyone.
three important parts:
- recognizing that law is necessary in an orderly society
- law applies equally to everyone
- a person’s legal rights will not be taken away except in accordance with the law.
A democratic government
(what are they? purpose? advantages?)
allows for the most peaceful and orderly legal change
- people have the right to elect and change their government by voting in free and regular elections meaning an unpopular government can be voted out in favour of a government promising to change or reform unjust laws.
a bill of rights or constitution gives people a clearer view of their fundamental rights and freedoms, and they can petition in court against laws that restrict those freedoms and get them deemed unconstitutional.
an independent justice system
judges should be able to function independently of other branches of government without fear of being punished or imprisoned.
civil disobedience
a non-violent breach of law in efforts to change or reform the law
- form of protest intended to draw attention to a wrong or injustice
direct vs indirect civil disobedience
direct: the law being protested against is the law being broken during the protest
ex: a person who fishes for their livelihood might breach laws restricting fishing.
indirect: the law being protested against is not the law being broken during the protest
ex: trespassing onto a military base to spray paint missile silos to protest against current military policies.
types of civil disobedience
1 integrity-based
2 policy based
3 justice based
1 integrity based
occurs when a citizen disobeys a law they feel is immoral as when abolitionists refused to turn over escaped slaves to the authorities and disobeyed the fugitive slave laws
2 justice based
when someone disobeys laws to lay claim to rights they have been denied as when blacks illegally protested during the civil rights movement
3 policy based
when someone protests a policy they feel is dangerously wrong like rosa parks and the bus segregation, gandhi and indian independence, martin luther and the civil rights movement.
types of collective legal reform
- protests
- petitions
- lobby groups
- royal commissions
- legal scholarship
protests
a public disapproval of an idea or action
ex: BLM
petitions
a written request usually signed by many people appealing to an authority regarding a specific cause
ex: women’s suffrage
lobby groups
any attempt by private interest to influence decisions of the legislator, usually group in the lobby of the legislative chamber
ex: MADD
coalition for gun control
royal commissions
people appointed by the government to examine a particular topic and recommend changes in laws
legal scholarships
produced in law schools in pursuit of knowledge where they look at a case and draw new and sometimes radical conclusions about the law. this can lead to new laws.
ex: battered women’s syndrome
international law definition
customs, rules and agreements between countries that govern relationships between sovereign states.
internal sovereignty
the power to make laws and govern people within one’s own state.
external sovereignty
the right and power to enter into agreements and relationships with other sovereign states; independent states are free to enter into relationships with other states.
global interdependence
issues like human rights, environment, terrorism and trade that require international cooperation.
globalisation
social interconnectedness in which local events are affected by events occurring far away.
sources of international law
- formal agreements
- customary practices
- general principles of law
- judicial decisions and teachings
formal agreements
treaties, conventions, protocols, covenants or acts containing basic rules all signatories adhere to for mutual benefit.
ex: treaties of Antarctica
treaties of the stars
customary practices
diplomatic immunity: the right to not be charged with a crime or sued, usually extended to family members of embassy staff.
- this has been codified in the vienna convention
- nations engage in many practices which they follow for ethical or moral reasons
general principles of law
a third source of international law stating the general principles of law recognized by civilised nations
judicial teachings and decisions
decisions made by the International Court of Justice and domestic courts can be consulted but have no binding force over later decisions
however, they may help to shape international customs and practices.
issues international law deals with
- human rights
- pollution
- climate change
- boundary disputes
- diplomatic immunity
- extradition
- military disputes
UN
- officially came into power on October 24, 1945
- purpose is to bring all nations of the world together to work for peace and development based on principles of justice and human dignity
- headquarters in NYC.
The general assembly
- contains 192 members from 192 countries and each country gets one vote
- closest thing to a “world parliament”
- headed by the president elected by the general assembly
- majority rules except in very important decisions where 60% approval is needed to pass
security general
- the secretariat is the security general support staff consisting of 8600 people
- the secretary general is appointed for a 5-year term which can be renewed.
- appointed by the general assembly on recommendations of the security council.
- in charge of day to day work of the UN like overseeing peacekeeping operations, mediating disputes, studying human rights, etc.
security council
- powers include the ability to send troops to keep peace in an area (try to negotiate peacefully first)
- 5 of 15 members are permanent: China, Russian Federation, UK, USA, France.
- the general assembly elects the remaining 10 members for 2-year terms and are not immediately eligible for reelection.
- decisions require 60% approval to pass including concurring votes from the 5 permanent members.
- this rule of “great power unanimity” is called “veto power”
economic and social council
- main forum with international economic, social, cultural, educational and health matters
- central UN agency for promoting human rights and fundamental freedoms
- 54 members elected by the general assembly
- ## oversees a number of UN agencies like UNICEF and World Food.
International court of justice
- Rules on disputes between member nations in accordance with international law and give advisory opinions on legal questions referred to it by UN organs and specialised agencies.
- based in netherlands
- made up of 15 judges from 15 countries chose by the general assembly and the security council.
controversies with the UN
1) Security council reform:
- many member states think the security council should be more representative, efficient, and transparent.
- many also question the legitimacy of the veto power of the P5 and seek ways to reform this.
2) General Assembly reform
- the one vote/ nation makes it mathematically possible for 128 of the smallest countries to make up 2/3 of the vote while only representing 8% of the world population.
- also debates in the GA are tedious and sometimes result using the same solutions
peacekeeping before the cold war
1) consent and cooperation of parties to the conflict
2) international support as well as support of the UN security council
3) UN command and control
4) multinational composition of operations
5) no use of force
6) neutrality of UN military between rival armies
7) political impartiality of the UN in relationships with rival states
Peacekeeping after cold war
1) military disagreement, demobilisation, and cantonment
2) policing
3) human rights monitoring and reinforcement
4) information dissemination
5) observation, organisation and conduction elections
6) rehabilitation
7) administration
8) working with or overseeing regional or non UN peacekeeping operations
international criminal court
the court of last resort for prosecution of genocide, war crimes, and crimes against humanity.
- its founding treaty, the Rome Statute, came into effect on July 1, 2002 and as of 2013, the ICC had 122 state parties, opened investigations in eight countries and passed 2 verdicts.
- independent international organisation and not part of the UN
Successes:
- providing support to victims of war crimes
- established vital court infrastructure in countries and growing outreach
- has had many marked successes in Congo, Uganda, Darfur and the Central African Republic
Challenges:
- arrest warrants pending got suspects in Libya, Congo, Sudan, Uganda and Cote d’Ivoire.
- the expediency of proceedings
- issue of state cooperation like USA didn’t want to sign the statute because the government was afraid the court would try US soldiers.
