Lecture 1 - intro Flashcards
what are the universal themes of tort law?
- there must be REASON for liability
- Causation
- Remedies
What are reasons for liability
- wrongfullness: failure to observe legal norms, either statutory or unwritten norms
- no fault liability: liability for conduct of others, and liability NOT based on conduct
explain causation, (physical causation & remoteness)
physical causation: establishing a casual link (operation of the “butfor” test
remoteness: limiting the scope of the “butfor” test, and the test for remoteness is normative in nature
What are examples of remedies?
- Money
- Injunction
- Apologies
What are characteristics of a crime that distinguishes it from a tort?
- conduct that “wrongs society as a whole”, violates public interests. (state prosecutes crimes)
- a crime is subject to “punishment” as an expression of societal condemnation.
PUBLIC WRONGS –> crimes
PRIVATE WRONGS –> tort
Define crime
conduct that is defined as criminally punishable by the legislator
What is criminal law?
Body of law concerned with legal punishment of criminal offenses. It deals with public wrongs (wrongs against society as a whole, which are punished by the state
Who files cases within criminal law?
public prosecutor (state)
what is the burden of proof within criminal law?
the prosecution (state) must prove defendants guilt
what is the standard of proof within criminal law?
beyond reasonable doubt
what is the judgement within criminal law?
Accussed is found guilty (convicted) or not guilty (acquitted) by a judge/jury
what types of punishment is there in criminal law?
imprisonment (custodial punishment) or fines (non-custodial punishment)
What is civil law / tort law?
Body of law concerned with disputes between persons involving compensation claims. It deals with private wrongs which harm the individual interests of a person
Who files cases within civil/tort law?
claimant (private party)
what is the burden of proof within civil/tort law?
claimant must prove his/her claim
what is the standard of proof within civil/tort law?
on the balance of probabilities
what is the judgement within civil/tort law?
respondent can be found LIABLE or NOT LIABLE to pay compensation, by a judge
what types of punishment is there in civil/tort law?
compensation (usually financial) for injuries or damages
what is the principle of individual autonomy? (justification for criminalizing conduct)
People are free to conduct their lives as they choose with as few restrictions as possible, therefore any restriction on our right to govern ourselves and freely choose how to act must be justified.
what are the principles of criminalisation?
they “seek to legitimate the use of criminal law by providing a rational basis for the decision as to which conduct ought to be punished”
3 principles: individual autonomy, harm and wrong.
what are limiting principles of criminalisation?
- proportionality, 2. subsidiarity (ultima ratio) and 3. efficiency
