Law 203 midterm Flashcards
positivism
-the theory that laws are to be understood as social rules and derive from logically existing decisions
-systematization of the law
-seeks quantitative and qualitative facts
-draws a line between practice of law and practice of politics
-rooted in the British Doctrine of parliamentary supremacy
-rooted in the notion of a social contract
natural law
-perspective is directly opposed to positivism
-belief that there is a direct link between law and morality
-western development
-us constitution and Canadian charter of rights are statements of natural law
-morality is at the heart of the legal process
-ties to god/religious ideas
legal realism
-often referred to as skeptics
-advocate that a legal doctrine alone cannot explain legal decision making
-provides for a more nuanced interpretation of the context of law
marxist view
-fusion of morality and science
-labour is a base to wealth and historical development
-the withering away of the state
-economic power determines law
-economic and class based
critical legal perspective
-arose in late 70’s
-not always been well received
-theorists look to the purposes, values, and assumptions of the legal systems
feminist theory
-emerged in 60’s
-argue that history and law has been written from a male point of view and doesn’t accurately represent women
-both language and logic of law reinforce male values
anarchist and libertarian perspective
-suspicions of all forms of state control
-endorse and communitarian ethic
-all forms of government are unnecessary and oppressive
-libertarians celebrate rights of individuals
Magna Carta
-year 1215
-brought English from monarchy to democracy
-council of 25 barons
-royal power no longer absolute
feudalism
-1666
-political and economic system that granted nobility and land in exchange for labour, military service or serfs
battle of the plains of Abraham
-resulted in the creation of :
*royal proclamation of 1763
*British North America act 1867
*constitution act 1982
-battle ended with British establishing themselves as the most powerful in Europe
constitution act 1791
-divided Quebec into upper and lower canada
-created legislative and executive branches of government
*executive branch of govt
-lieutenant governor and council appointed by him
*legislative govt
-2 houses
*legislative council
*legislative assembly
domestic law
-the law of a single nation state
-can be further classified into public, private, substantive or procedural
international law
-law that is common to all nation states
-typically mediated by the united nations
-involves global treaties, conventions and customs
public law
*primarily of the collective interest
-constitutional law
-criminal law
-administrative law
-taxation law
private law
*primarily concerned with the definition and regulation of individual matters
-contracts
-real estate
-property
-family law
-wills and trusts
-torts
-company law
-the law of agency
-patent law
Canadian law history
-influenced by British, French , and us legal systems
-influences are either principle or subsidary
statute law
-also known as enacted law
-must be applied
-House of Commons and provincial legislative assemblies are source
case law
-law established by decisions in specific previous court cases
-courts will turn to these decisions while making judgments on similar cases
customs
-most forms of law originally derived from custom
books of authority
-courts seek guidance from early scholars
-blackstone and coke are 2 prominent authors
statutory interpretation; rules and regulations
1) read the statute literally
2)read it in context
3) read it in accordance with its intentions
Carter v. canada
-Supreme Court asked to rule one the criminalization of physician assisted death
R v. Alex
-case deals with whether the statute governing collection of breath samples to control impaired driving requires “reasonable and probable grounds” to suspect impaired driving
Castillo v. castillo
-car accident in California where they only have a 1 year limitation period, so they tried it in an Alberta court where we have a 2 year period
persons case of 1927 (Edwards v. canada)
-5 women asked the court to determine whether women were “qualified persons” and hence appropriate to be appointed to the state
regina v. Ojibway
-fake case where he shot his horse to put it out of its pain but was then tried for failing to follow the small birds act
Leskon v. Leskon
-during a divorce the husband was dealing with the issue of having to pay for spousal support for 5 years. he argued that after 5 years the wife should be able to be self sufficient financially
R v. Luxton
-court asked to rule that the penalty for first degree murder- minimum 25 years- constitutes cruel and unusual punishment as defined by section 12 of the charter
