LAWS- Final Exam Flashcards
substantive law
rights, duties and prohibitions administrated by courts
procedural law
rules on how substantive laws are administrated, enforced, changed and used by players in the law
private law
concerned with substantive and procedural rules on relationships between individuals
-laws of torts or private injuries, contracts, property, wills, marriages, etc
-between individuals
civil law
compensation for violating civil statutes (torts), private wrongs seeking redress
-like private law
-within common they are resistant to and fearful of the power
-a corpus codified laws greatly influenced by Romano-Germanic law
-best illustrated by France: Code of Napolean
Criminal law
concerned with the definition of crime and the prosecution and penal treatment of offenders
-a crime is a public wrong, the state (crown) takes action (not the individual)
Common law
-a body of unwritten laws based on legal precedents established by courts
-the main difference is that not only based on acts of Parliament or legal codification but on case law, set on a precedent set by a judge to decide a case
-resist codification
-specific application of private laws
civil law (private law)
-within common they are resistant to and fearful of the power
-a corpus of codified laws greatly influenced by Romano-Germanic law
-find their sources in codes enacted by national parliaments
-best illustrated by France with Code de Napoleon
Common law (private law)
-the main difference are laws are not only based on Parliament and legal codification but on case law, set on a precedent set by a judge to decide a case
-resists codification
-specific application of private laws
Reception
used by legal scholars to mean the process by which European laws were introduced here in Canada
public law
concerned with structures of government, duties and powers of officials and the relationships between individuals and the states
Stare decisis
the doctrine that courts will adhere to precedent in making their decisions
-courts bind to other courts but courts are not bound by courts of equal status or different provinces
-all are bound to the SCC
Precedents that bind
from higher courts adn the SCC
Persuasive Precedents
any court from a common law jurisdiction (ex)Australia) can be used as a persuasive authority to craft legal reasoning in Canadian courts
Legal positivism
-an ideology in which the existence of a law becomes its own moral criterion (usually called formalism)
-appropriate ext. of methodologies of natural science
Emile Durkheim (Competing vision of the social life/law)
the distinction between primitive and complex societies on the scale of their specialized labour; law is moving from repressive to compensation and even restoring measures
Karl Marx (Competing vision of the social life/law)
law is currently an instrument of the ruling elite used to mask the reality of oppression
-capitalist exploitation, struggle, revolution
Max Weber (Competing vision of the social life/law)
about more than the economy (Marxist theory is deemed incomplete); technology, politics and ideology act as regulatory functions of law
-traditional, charismatic & legal domination
naturalism
-not as universal as it claims to be
-natural law is inherently ambiguous
-is all things… to all people
Realism
-underplay implication of rules
-accused of being devoid of conception of “the good”
Archifactualism
-law is just power relations?
-nothing independent about it
Natural Law
Natural law is a theory in ethics and philosophy that says that human beings possess intrinsic values that govern their reasoning and behaviour
Adjudication
the resolution of disputes through a court of law to achieve:
-an authoritative settling
-a definitive determination of their rights and responsibilities
-a result that accords with justice (hopefully)
Ultra vires
falling outside the power of the legislature to enact
Limits Ultra Vires
-overlapping jurisdictions? the federal law is given precedent, according to the doctrine of paramountcy
-the notion of cooperative federalism- as a guideline for harmonization of public interests
-ex) PHS Community Services Society v Canada 201
Ratio decidendi
the rationale for the decision
3 aspects to identify the ratio decidendi
- to find the point of law raised by the case and decided by the judge (not some points of law mentioned to support the ratio)
- inferred from older cases from the reasons given vs. the facts: newest cases it is often explicitly mentioned
- what is a cause authority for: then we have debates over similarities and differences between cases and reasoning
Mala prohibita
behaviours made criminal statutes, but not consensus
Mala in se
evil in themselves, with a strong overarching agreement on the danger they pose to the public
legal culture
the evolving relationship between culture and its need for rules
pragmatic/positivist law
to define law by court-rendered decisions, the role of judges & jurisprudence
Deductive
for civil law (applying universal reason/principles) derived from books of authority to particular situations
Inductive
modes of reasoning for common law (pragmatic/remedy-driven derived from a past similar experience, by inference)
The literal Rule
if precise and unambiguous, words should be read in their natural sense as to not amplify or exaggerate meanings
The Gloden Rule
the text of a law can be modified to avoid flagrant absurdity or inconsitency
The Mischief Rule
the judge can consider the underlying purpose of the legislation by examining the history of legislation and what they seek then to resolve
Federalism
a form of government that embodies the principal of territorial representation
Federal State (Organization of the Courts)
two levels of government, division of power from 1867
-consitution: provincial
-federal: territorial
Province (Organization of the Courts)
were granted the power to maintain provincial courts dealing with matter under their jurisdiction
Federal
the Act gives the Parliament power to establish a general court of appeal, additional courts for the administration of Canada
Social control
refers to methods used by members of a society to maintain order and to promote the predictability of behaviours
Summary Offences
-Considered less serious
-Triable by “JP” or Provincial Court Judge (if the jury is not available)
-information/laying of information
-Created by parliament or provincial legislatures
Indictable Offences
-More serious, carry more severe penalties
-3 types of indictable offences
-S.553 offences- provincial court, no election by the accused
-S.469- superior court jurisdiction, judge alone or judge & jury accused
chooses)
-Residual offences- election
Hybrid Offences
Always considered summary unless elected otherwise
Interpreting precedents
contrary to the legislative and executive branches, courts are not supposed to create new policies to deal with new problems
Liberal political theory
It assumes a rational, free-choosing, autonomous self that is prior to, and independent of, both the community and other selves (i.e. Durkheims’ mechanical/group-based TO organic/interdependent type of solidarity)
Adversary systems
The Canadian criminal justice system is an adversarial system where two opposing sides present their case before an impartial arbiter. The Crown attorney, representing the government of Canada, and the accused, usually represented by defence counsel, are adversaries during this process
white paper
-In the Canadian legislature, a policy paper is called a white paper. For many First Nations people, the term ironically implies a reference to racial politics
-the federal government’s intention, as described in the white paper, was to achieve equality among all Canadians by eliminating Indians as a distinct legal status and by regarding Aboriginal peoples simply as citizens with the same rights, opportunities and responsibilities as other Canadians.
King-byng controversy
-The King-Byng Controversy (1926): a constitutional crisis over a breach of the established convention:
-Governor General Lord Byng refused to dissolve Parliament at the demand of Mackenzie King for election and appointed Conservation leader Arthur Meighen instead
utilitarianism
theory of morality that advocates actions that foster happiness or pleasure and oppose actions that cause unhappiness or harm
the consensus ontology
-Canada is a pluralist society aiming for compromise and cooperation to achieve social order and harmony
-law targeting a wider range of human interests toward the goal of well-being and social harmony
-the primary function of law: integrity to main democratic order and economic stability
dispensing rewards and punishments without bias (no one is above the law… the supremacy of the rule of law)
the conflict ontology
-societies dominated by the most powerful actors/ruling class: law as an expression of (some) forms of domination
-law as a “battlefield”: competing interests having theirs formalized and perpetuated through law
-the law was first created out of the interest of a ruling class
-the “pluralist compromise” is a fiction covering the violence of ongoing relations of power
Hoebel on the function of law
Hoebel suggested that social norms are legal if their neglect or violation is met with punishment by individuals or groups with socially-recognized authority
This definition of palace law is at the centre of how society is organised and how authority is exercised within it
legal ontology
Legal ontologies aim to provide a structured representation of legal concepts and their interconnections
