Law 203 midterm

Question 1

positivism

Answer 1

-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

Question 2

natural law

Answer 2

-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

Question 3

legal realism

Answer 3

-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

Question 4

marxist view

Answer 4

-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

Question 5

critical legal perspective

Answer 5

-arose in late 70’s
-not always been well received
-theorists look to the purposes, values, and assumptions of the legal systems

Question 6

feminist theory

Answer 6

-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

Question 7

anarchist and libertarian perspective

Answer 7

-suspicions of all forms of state control
-endorse and communitarian ethic
-all forms of government are unnecessary and oppressive
-libertarians celebrate rights of individuals

Question 8

Magna Carta

Answer 8

-year 1215
-brought English from monarchy to democracy
-council of 25 barons
-royal power no longer absolute

Question 9

feudalism

Answer 9

-1666
-political and economic system that granted nobility and land in exchange for labour, military service or serfs

Question 10

battle of the plains of Abraham

Answer 10

-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

Question 11

constitution act 1791

Answer 11

-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

Question 12

domestic law

Answer 12

-the law of a single nation state
-can be further classified into public, private, substantive or procedural

Question 13

international law

Answer 13

-law that is common to all nation states
-typically mediated by the united nations
-involves global treaties, conventions and customs

Question 14

public law

Answer 14

*primarily of the collective interest
-constitutional law
-criminal law
-administrative law
-taxation law

Question 15

private law

Answer 15

*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

Question 16

Canadian law history

Answer 16

-influenced by British, French , and us legal systems
-influences are either principle or subsidary

Question 17

statute law

Answer 17

-also known as enacted law
-must be applied
-House of Commons and provincial legislative assemblies are source

Question 18

case law

Answer 18

-law established by decisions in specific previous court cases
-courts will turn to these decisions while making judgments on similar cases

Question 19

customs

Answer 19

-most forms of law originally derived from custom

Question 20

books of authority

Answer 20

-courts seek guidance from early scholars
-blackstone and coke are 2 prominent authors

Question 21

statutory interpretation; rules and regulations

Answer 21

1) read the statute literally
2)read it in context
3) read it in accordance with its intentions

Question 22

Carter v. canada

Answer 22

-Supreme Court asked to rule one the criminalization of physician assisted death

Question 23

R v. Alex

Answer 23

-case deals with whether the statute governing collection of breath samples to control impaired driving requires “reasonable and probable grounds” to suspect impaired driving

Question 24

Castillo v. castillo

Answer 24

-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

Question 25

persons case of 1927 (Edwards v. canada)

Answer 25

-5 women asked the court to determine whether women were “qualified persons” and hence appropriate to be appointed to the state

Question 26

regina v. Ojibway

Answer 26

-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

Question 27

Leskon v. Leskon

Answer 27

-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

Question 28

R v. Luxton

Answer 28

-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