Law test 1 Flashcards
Ad Hoc organization
A meeting not planned in advance but done out of necessity
- Latin meaning “for this purpose only”
Apartheid
A policy founded on the idea of seperating people based on ethnic or racial criteria
Case law
- Also called common law
- Based on precedents
Civil disobedience
- Refusal to obey the demands of a government
- Peaceful
- Does not resort to violent or active opposition
Crown attorney
- Prosecutors
- Represent the Crown
Entrenched in the constitution
- Something is entrenched if the procedure needed to modify it is more demanding than that of ordinary legislation
- The Canadian Charter is Entrenched in Canadas Constitution
Exculpating factor
- Evidence favourable to the defendant
- Tends to aquit the defendant
Intervenor
- Someone who intervenes
- A third party who intervenes in legal proceedings
Lobby group
- Organize to influence the government to change laws
- Ex. Same Sex marriage, Rape and Sexual Assult laws
Metis
People of mixed European and Indigenous ancestery
National Organization
Any organization of legal members that represent a group of people (Ex. National Womens group)
Precedent
- A court rules based off of a previous case that delt with the same or similar issue
Royal Commission
- An Ad Hoc (one time organization) public inquiry into defined issues
- Official government inquiries into matters of national concern
- Used for obtaining advice or to investigate a specific incident
Rule of law
- Fundamental legal principle that society is governed by laws applying equally to all
- No person or government is above the law
Statute law
Secondary Law
- Made by Federal and Provincial Legislatures
- Takes Precedence over Case Law
- Gives lawmaking power to democratically elected representitives
Demographic change
- Changes in law might be a result of demographic changes
- As demographics change (age difference, cultural difference) the laws will change to reflect that
Technological Change
- Change in infastructure that requires a change in law
- New technologies eventually impact behaviour and therefore laws
- Ex. Cell phones, AI, E-cigaretttes
Changes in Values
- Lobby groups organize to influence the government to change laws
- Ex. Same sex marriage
National and International Events
- How laws change in response to large events
- Income tax and War Measures Act during WW1
- ISIS
- Nuclear Arms Deals/Controls
Natural and Human Disasters
- Legal response to natural disasters or climate events
- Global Warming & Arctic Sovereignty
- Global Warming in general
- Genocides
- COVID
Social Media Campaigns
- Cyberbullying
- Privact Issues
- Kids Online Saftey Act (BOOOOO)
Factors influencing possibility of change
Democracy, Respect for Rule of Law and Independent justice system
Democracy
- Allows for peaceful and orderly change
- The people have the power to change their government through elections
- Can have a constitution
- Can challenge laws through the courts that they believe infringe upon their rights
Respect for rule of law
- Must be respect for the rule of law in order for there to be possibility of change
Independent justice system
- Judges function independently without government interference
- Courts are organized in a hierarchical manner
- Court decisions can change the law or the meaning of statute law
Legal Scholarship
- Documents or practices from which norms can be drawn that function as sources for judges to decide on cases
Political Demonstrations
- Action by a mass group or collection of groups in favour of a political cause
Administrative law
- Government actions must be legal
Constitutional Law
- Derived from Common law or written constitution
- Defines the powers of legal branches
- Basic rules on how the country opperates
- Case law and Statute Law defer to Constitutional law
Contract law
A legally binding agreement between two or more persons for a partictular purpose
Convention
A way of doing something that has been accepted for so long that it’s turned into an unwritten rule
Criminal Law
- Law that prohibits criminal acts, conduct and imposes sanctions for unlawful behaviour
Custom
- A way of doing something over time that has evolved into a law
Defendant
- An individual, company or institution being accused in a court
Domestic Law
Also probably technically national law
- Laws and legal systems established within a state to govern events, transactions and people within or with a connection to that state
Estate law
**private law **
- Regulates wills and probates and determines what happens to a person’s property after death.
Family law
**private law **
- governs relations among members of a family.
Intra Vires
- Latin:
- Within the power of government to pass laws.
Parliamentary supremacy
- The principle that Parliament has the supreme power of making Canadian laws
Patriate
transfer control over (a constitution) from a mother country to its former dependency.
Plaintiff
a person who brings a case against another in a court of law.
Primary sources of law
- Customs and Conventions
- Social and Political Philosophy
Secondary sources of law
- The Constitution
- Statute Law
- Case Law/ Common Law
Stare Decisis
A Latin phrase meaning “let the decision stand.”
Substantive law
the law that identities the rights and duties of a person or a level of government.
Tort law
Private Law
Law that deals with harm to a person or a person’s property.
Ultra Vires
A Latin term meaning “beyond the powers”
Influences of Religion and Morality
Judeo-Christian influence, Laws of Moses
- Other countries laws reflect religious heritage
Historical Influences
Greek, Roman, Indigenous, British, French
Greek influence
(Participation, Jury)
- Were the first to practice democracy in political and justice systems
- Used Juries
- Democracy was limited to native men over 18
Roman Influence
(Written Codes, Lawyers)
- Codified their laws on 12 tablets
- Covered almost every aspect of life
- 529 CE; Justinian Code
- Lawyers were trained to advise citizens
Indigenous Influence
(Consensus, Constitution)
- Had their own legal system
- Laws were passed through story telling
- Iroquois Confederacy of Five Nations formed their Union through a Formal Constitution
- Every person in the confederacy had a voice in national affairs
British Influence
(Case law, Rule of Law, Habeus Corpus)
- The greatest influence on our laws
- Systems of adjudication varied until 1066
- Innocent people suffered
- Feudal system in 1066 brought the idea of traveling judges
- King Henry also established the jury system
- Signing of the Magna Carta brought in the Rule of Law and Habeas Corpus
French Influence
(Civil Code)
- Has roots in Roman law
- Quebec retains a lot of French Civil Law
- Roots come from the French Civil Code
- Precedents are less important; judges refer to the code itself to make verdicts
Customs and Conventions
Primary Source of law
Customs -> A way of doing something over time -> force of law
Convention -> a way of doing something that has been accepted for so long -> an unwritten rule, usually deals with political justice
Social and Political philosophy
Primary source of law
- Change over time and new laws must address these changes
- Tied to changing societal values (E.x. U.S. Civil rights, Universal healthcare)
Secondary source of Canadian Law
- Laws and reported cases that have been written down by various lawmakers
- Societies values, beliefs and principles are enshrined in written rules and regulations
The Constitution
Secondary source of law
- Supreme Law of the Land
- Overrides statute law and case law
- Originally the BNA Act, now the Constitution act, 1867
- Similar to UK’s ideas/principles
- TWO IMPORTANT PRINCIPLES:
- Judicial Independence
- Parliamentary Supremacy
Statute Law
Secondary source of law
- Made by Federal and Procincial Legislatures
- Takes precedence over Case Law
- Gives lawmaking power to democratically elected representitives
Case law or Common law
Secondary source of law
- Evolves through decisions by judges
- The highest court makes a decision that will set a precedent that all similar cases must follow
- Case Law can be changed by Statute Law, but both must defer to Constitutional Law
Substantive vs. Procedural Law
Procedural:
- legal rules governing the process for the settlement of diputes (Criminal and Civil)
Substantive:
- Sets out the rights and obligations of members of society
Domestic vs International Law
Domestic:
- Countries laws that apply to their people on their territory
- Differ from one country to another
International:
- applies between different countries and to international organizations
Public Law (Constitutional, Criminal and Administrative) vs. Private Law (Contract, Family, Property, Wills, Estates)
Public Law:
- Affects other people
- Theft affects others and therefore is under public law
Private Law:
- Sets rules between individuals
- Property law, Wills, Estates, Family law are all Private
Reading a case citation
very basic version
- Lists basic information
- Who’s involved
- Public or Private law
- Which year the decision was reached
- Which court heard the case
- The name of the published book in which the court decision appears
Statute Law citation
The more specific one
- Title: Title of the statute followed by a comma (use the short title)
- Volume: Cite annual volumes as S.C. No comma follows
- Year: Immediately after jusisdiction. A comma follows
- Chapter: Abbreviate to a lowercase c followed by a period
- Alpha-numeric Designation: The letter is drawn from the title of the statute
- Section Numbers: Abbreviate section to s and sections to ss. A comma after the alphanumeric designation if you’re citing a section
Dialectic Theory
known as the dialectical method.
Refers to dialogue between people holding different points of view but wishing to arrive at a reasonable solution.
-Created by Karl Marx and Friedrich Engels.
Feminist Jurisprudence
known as the Feminist legal theory
- Based on the belief that the law has been a fundamental part in women’s historical oppression.
- Women’s persistence to fight for equal opportunities created a the new legal theory
-Created by women who challenged the laws to keep them in place at home. - began in the 1970’s during the second feminist movement (by middle-aged white women).
Jurisprudence
-The philosophy or science of the law
-The word is derived from Latin and has two parts.
.Juris meaning “of right” or “of law”
.Prudens which refers to being skulled or learned in law.
- looks at definitions of laws, reasons for making/obeying them, etc
Justice
Every individual has an equal right to basic liberties, the right to opportunities and an equal chance as other individuals of similar ability.
-Author attempts to provide a moral theory alternative to utilitarianism and addresses the problem with distributive justice.
Legal Realism
- law is determined by what actually happens in the courts.
-Moral/fair depends on the perspective of the individual.
-Differs from both natural law and legal positivism.
-Explains the law through real actions of lawmakers rather than through ideas about the government.
Marxism
suggest that the law is an instrument of oppression and control used by “the ruling class vs the working class”.
Natural Law
Source: God or a higher universal authority
Purpose: To promote goodness and justice
Role of the State: to promote, goodness and protect, the rights, liberty and property of citizens.
Role of Citizen: to pursue right and goodness in personal life to live in harmony with the laws of nature
Positive Law
Source: The rule or governing authority
Purpose: to maintain law and order
Role of the State: to enforce the law
Role of the Citizen: to obey the law
Rationalism
Belief in reason and logic as the primary source of knowledge.
Utilitariansim
The law should be evaluated by its utility to society as a whole. So the law provides “the greatest happiness for the greatest number of people”
Natural Law
Source: God or a higher universal authority
Purpose: To promote goodness and justice
Role of the State: to promote, goodness and protect, the rights, liberty and property of citizens.
Role of Citizen: to pursue right and goodness in personal life to live in harmony with the laws of nature
HLA Hart theory
Positivve whatebver
Source: The rule or governing authority
Purpose: to maintain law and order
Role of the State: to enforce the law
Role of the Citizen: to obey the law
Procedural Justice
Focuses on the way police/legal authorities interact with the public and how those interactions shape the public’s view on them.
Restraint of Power
a theory of judicial interpretation that encourages judges to limit the exercise of their own power.
Positive Law in the Canadian Constitution
- Positive law states that law is a set of rules and regulations put together by the government and that citizens should follow them for the overall good of the nation
- The Constitution itslef is positive law
Trial by Wager of Law
What:
-Accused required to get 11-12 acquaintances called “oath helpers” to swear to innocence
-A character reference
When:
-If accused “caught in the act” (direct evidence), not entitled to Wager.
-May refuse to provide an oath for one who has a poor reputation.
Trial by Ordeal
What:
-Accused partook in physical test of guilt (burning stone, water, hot iron)
When:
-Used in cases where direct evidence lacking
Trial by Combat
What:
-Evolve from old Anglo-Saxon practice of “blood feud”
-Relative of someone killed took revenge by attacking killer and family
When
-Legalized in the middle ages
-Abolished in English in 1833
Inquisitorial System vs. Adversarial System
- Inquisitorial can be described as an official inquiry to find the truth
- The Adversarial system uses an entire process between prosecution and defence to determine facts
Sentencing Circles
a type of sentencing in which victims, family members, community members, and the offender participate in an effort to devise fair and reasonable sanctions that are ultimately aimed at reintegrating the offender into the community.
Religious Means
a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam.
Military Courts/Tribunals
- military courts presided over by independent military judges
- meant to deal with specific issues, from human rights to municipal licensing, and are generally run by adjudicators who are experts in that particular area of law.
Mental Health Courts
a fundamental component of our criminal justice system, allowing for a more compassionate and effective response to those who encounter that system due to their mental health struggles.
