LWSO 203- Midterm 1 Flashcards
Morality
system of values and principles concerning what is right or wrong with respect to human behavior
can be descriptive or normative
Descriptive- what a particular society thinks is moral or immoral
Normative- what SHOULD be moral or immoral
Ethics
standards of human behavior in a professional sense
Deontological v.s Instrumentalist
deontological- obligation or duty. as an end itself- corrective and retributive
instrumentalist- as an instrument or a means to and end- retributive
Corrective Justice
wrongdoer should compensate the wronged as it is their moral responsibility
-Torts and Contracts
restitution and rehabilitation
field of private law
Voluntary Wrongdoing - deliberate vs negligent
Retributive Justice
Criminal Law and the perceived need for punishment
Retaliation or lex talionis is the response proportional to the wrongdoing
Wrongdoer punished; society and the person wronged want retribution
Punitive-civil law
Fines, Imprisonment, Capital Punishment
Distributive Justice
Assets and entitlements are shared among members of society
Today: How to distribute the costs of injuries (ex. taxes)
Status quo is not fair
Nationalization of private property- Soviet Union, Cuba, Venezuela
Law and Religion
Ancient source of law; Modern Theocracies- Saudi, Iran, Isil is attempting to institute a caliphate
Preamble to Canadian Charter- supremacy of god
Section 2 -Religious Freedom
Sharia in Canada = removal of faith based arbitration in Ontario after Muslim’s argued that sharia law should be included. instituted at first but then overturned
Natural Law
inalienable
higher power, and man made law is subject to natural law
Early- Plato
Christian- Aquinas-and reason god and divine law
Human Rights- (transcends religious basis) Social Contracts Rousseau, Locke, Jefferson
Life liberty and the pursuit of happiness?
Legal Positivism
Command of the sovereign is the law, What is not what ought to be
Social Contract Hobbes
Empirical
Legal Positivism and Natural Law come together :
Charter of Rights and Freedoms, Part I of Constitution Act 1982. Human rights as the law command of the political sovereign
“Law is the will of God expressed in His commands revealed to man through His
chosen instruments. Obedience to God’s will is the supreme command.”
Natural Law
“Law is the command of the sovereign. The sovereign is that person, or group of
persons, in any independent human society who, owing no obedience to any
outside body or person, enjoys the habitual obedience of all persons in his society.”
Legal Positivism
“Law is the instrument man uses in his attempt to achieve justice in society.”
social engineering
“Law is an instrument by which capitalist society suppresses the proletariat. With
the establishment of communism, law will wither away.”
Marxism vs Liberalism
LAW
system of enforceable rules that govern relationships between members and society OR between individual members of society
Legal Realism
challenges the assumption that the law is impartial
Young hunty of justice isn’t actually blindfolded
legal outcomes depend on the participants
law should be an instrument that achieves societal societal objectives- reaction to legal positivism
(Critical Race Theory, Feminist Legal Theory, Economic Class Legal Theories)
Critical Race Theory
laws created by one race to subjugate another
disproportionate percentage of inmates
Feminist Legal Theory
laws are primarily written by men to subjugate women
patriarchal interests supported by the law
Economic Class Legal Theories
Karl Marx- wealth distribution and class structure compatible with distributive justice
Liberalism
classical sense
JS Mill rightful limit to individual freedom
Right to swing fists where another man’s nose begins
Historical Juris Prudence
Roots of common law
Law evolves from customs
law dependent on the spirit of the people and it needs to evolve to this volksgeist
Divisions of Law
Public Law: state and members of society
examples include criminal, administrative, tax, immigration
Private Law: two or more members of society, not really private examples include contracts, torts, property
Substantive Law: the what. the rules existing at the time
Procedural Law: how rights and obligations are enforced, the carriage of the case
Domestic; Foreign; International
Domestic: valid within a sovereign jurisdiction. binding on those who are in that jurisdiction
Foreign: laws of sovereign states, law valid within a foreign sovereign
International: above sovereign states. ex) treaties, international human rights
Rule of Law
concerns fairness in the administration of law. everyone treated equally before the law and the power under the law should not be used arbitrarily Magna Carta 1215- restricted the rights of king. no arbitrary power Charter of Rights and Freedoms - supremacy of god and the rule of law A.V Dicey 1. law supremacy over arbitrary power 2. no one is above the law 3. personal rights and liberties must be protected Bingham 1. accessibility 2. law not discretion 3. equality before the law 4. exercise of power 5. human rights 6. dispute resolution 7. a fair trial 8. rule of law and international order
Speluncean Explorers
ratio decidendi drawn from lower court
if people are separated from society, they must still comply with the law
Roncarelli v. Duplessis
as a government official one cannot act outside the accordance of the rule of law. arbitrary use of power
Magna Carta
1215
limit on kings power
house of commons/house of lords
rule of law
Royal Proclamation
1763
King George III, English laws apply to Quebec and Acadia
Roman Catholics prohibited from being in elected office
Aboriginal lands reserved for Indians
Quebec Act
1774
restored civil law in Quebec and retained criminal law
officially recognized the French language and Catholicism
BIJURALISM
Constitution Act (BNA Act)
1867- UK statute
(Section 91 fed powers & Section 92 prov powers)
Section 101 Court of Apeal
Dominion of Canada
Upper/Lower Canada, New Brunswick and Nova Scotia
Constitution Act 1982
Patriation
solved 2 primary problems, no human rights and no aboriginal rights
amendment clause and human rights clause
Part V amending formula
Part I Charter of Rights and Freedoms
Aboriginal rights
Statute of Westminister
1931, Britain won’t pass laws relating to Canada without consent. Responsible gvt** specifically pertaining to international relations
Supreme Court of Canada Highest Court
1949
Prior to this date, court appeals could be taken to UK Privy Council
Constitutional Development
BNA Act 1867- Constitution Act, dominion of Canada Sec 91, 92, 101
Alberta Act 1905
1930- Natural resource agreement
Statue of Westminister- 1931 Britain won’t make laws relating to Canada without consent
1949- Supreme Court becomes Supreme
1982 Constitution Act patriating the constitution adding an amending formula, human rights, aboriginal rights, makes legislation binding
Sources of Law in Order of Precedence
Constitution
Legislation
Judicial Decisions (common law)
Academic Commentary (more prevalent in Quebec civil law)
Bijuralism
common law system- public law all of Canada private law all of Canada except Quebec.
civic law system - private law is codified in legislation. Civil Code of Quebec. public (criminal) law applies
Constitutional Monarchy- Head of State
formal- queen
political- prime minister
queen acts with the advice and consent of the privy council which is pm and his cabinet
queen acts through governor general at the federal level and lieutenant governors at provincial level
Separation of Powers and Parliamentary Supremacy
legislative branch makes the law
executive branch implements the law
judiciary branch applies and interprets the law. makes the law in a way because of common law (stare decisis) fill gaps
Bicameral at federal level- house of commons and senate
PARLIAMENTARY SUPREMACY: legislature or parliament is supreme. parliament can pass legislation that it considers advisable subject only to the constitution.
Judicial Independence
courts interpret and apply the law including the constitution
courts determine whether legislation is INTRA VIRES (within the powers) of the legislature or parliament
NEED TO BE INDEPENDENT
Responsible Government
Nova Scotia first to get it
confidence= constitutional convention
leader of party that wins election becomes Prime Minister and appoints cabinet ministers. they make up executive branch and must maintain the confidence of parliament. If gov. loses confidence motion, election must be called
Court Hierarchy
unitary system with supreme court at the top provincial court of appeal (appointed federally) court of queens bench (appointed federally) provincial courts (appointed provincially inferior court) administrative tribunals (appointed provincially inferior court)
federal court of appeal
federal court trail & tax court
federal administrative tribunals
precedence equal or lesser court
inferior courts- section 92
superior courts- section 96
Stare Decisis
judges must follow prior decisions if the decision is on point with the facts of the case and it is not a foreign or lower court
Selection of Judges
Supreme court judges- Section 101 (Supreme Court Act) Constitution Act 1867. 9 judges, 3 from Quebec
Superior Court judges of the provinces appointed federally -Section 96
Section 99 & 100 tenure and pay for superior courts
Provincially- selected from provincial bar
How Appeals Work
require leave (permission)
arguments are made on the law, no evidence is presented
show deference to lower courts and tribunals
weight the legal arguments and then either confirm, overturn, or send back to the lower court for a retrial
What do Judges Do?
private dispute resolution
adjudication of criminal law
overseeing administrative government decisions
law making
Parts of the Constitution Act 1982
Part I- Charter of Rights and Freedoms (Section 1-34)
Part II- Aboriginal Rights (Section 35 and 25)
Part III-Equalization between provinces
Part IV- repealed
Part V- Amendment
Part VI- provinces and resources
Part VII- Primacy of Constitution (section 52)
How a Bill Gets Through the House
1st reading- bill introduced
2nd reading- bill is debated in the house
Committee Review- review and proposed changes
3rd reading- amended bill debated
members vote
Senate does the same, either passes or sends it back with proposed amendments
royal assent
Making Secondary Legislation
Devolution: delegation of legislative powers to another elected body. federally - devolution to the territories, legislative bodies are not constitutionally recognized.
provincially- devolution of local responsibility to municipalities
Regulation: provide more detailed rules in support of legislation. the primary legislation will say who can make regulations. subject to judicial review
Administrative Boards/Commissions: quasi-judicial and quasi-legislative. appointed bodies in specified areas of expertise. subject to judicial review.
Interpreting Legislation
Is the primary legislation intra/ultra vires the legislature & is it contrary to the constitution
Is the secondary legislation consistent with the primary act ie) territories only exercising power devolved to them
Judicial Options if Legislation/Regulation is Ultra Vires
striking down- entire legislation/regulation
severance- of the offending provision
reading down- narrow interpretation of the legislation to ensure conformity
reading in- interpreting the legislative intent to add a provision. Vriend v. Alberta read in to add sexual orientation to the Alberta Human Rights Act
Expressio Unius Est Exclusio Alteruis
Ejusdem Generis
to express one thing is to exclude another
general words should be interpreted as to be of the same type as the preceding word
Section 1 & Oakes Test
Section 1 of the Charter of Rights and Freedoms; reasonable limits to rights and freedoms
R v Oakes - The Oakes Test - having to prove that you do not have the intention of trafficking drugs is not a reasonable limit on one’s rights and freedoms
1. Important social objective of pressing and substantial concern
2. Proportionality
-rational connection to the objective *Oakes didn’t pass here
-minimal impairment to right or freedom
-proportional effect of the social objective and the right or freedom
Section 2 Charter of Rights and Freedoms
Fundamental Freedoms conscience and religion thought, expression, press peaceful assembly association
Section 3-5
Democratic Rights
right to vote
5 year duration of legislative assembly
Section 6
Mobility Rights
Section 7-14
Legal Rights
Section 33
Notwithstanding clause
5 year sunset period has to be renewed
Alberta Human Rights Act
preeminent law. consistent with section 92 provincial responsibility for property and civil rights
conflict- Alberta Human Rights Act wins over other laws
equal, inalienable rights, freedom justice peace and multiculturalism
reasonable accommodation
Grounds for Discrimination
Alberta Human Rights Act , bonafide occupational exception
Callan v Suncor
a company must reasonably accommodate a person with a physical disability but not perfectly and not immediately
Section 91
Constitution Act 1867 Part 6 peace order and good government trade and commerce militia, military currency , coinage seacoast and inland fisheries Indian's and Indian lands Marriage and Divorce Bankruptcy and Insolvency Criminal Law
Section 92
Constitution Act 1867 only applies to provinces not territories direct taxation sale of provincial land municipal institutions solemnization of marriage property and civil rights courts and procedures
Section 92 A
non renewable natural resources, forestry, electrical energy
provincial legislature can make laws in relation to exploration, development, management and conservation
but cannot export from one province to another or across federal border
