Rule of Law Flashcards
What is the rule of law?
MAIN: no one is above the law
2. law is necessary to keep peaceful order
3. law applies to everyone equally
4. no one has the unrestricted power to limit rights unless authorized by the law
what are the two types of moral reasoning? explain both.
- Consequentialist - locates morality in the consequence (thinks of consequences to action)
- Categorical - locates morality in certain duties (thinks if the crime is moral or not) does not think of the consequences
name the 3 alternative trials and explain each one.
- Trial by ordeal - requires person to undergo torture to determine whether they are guilty or innocent, God was the judge, example: trail by cold water (sink=innocent, float=guilty as floating meant witchcraft)
- Trail by Oath Helping - required the friends of the accused to swear on the bible that he or she is innocent (also called compurgation- to purify with)
- Trial by combat - determined guilt of innocence by having the parties in the dispute fight a duel, God is on the side if the innocent and the innocent man should win, they can hire stronger individuals to fight for them
what are the 3 branches of government? explain each one.
- legislative- house of commons (members of parliament - elected), senate and senators - unelected
- executive - prime minister, cabinet and cabinet ministers, example. ministry of justice and ministry of immigration
- judicial - judges - unelected, supreme court of canada, courts of appeal, superior courts of justice
what is s.91 and s.92?
s.91 is federal
s.92 is provincial
what are the 2 constitutional acts? explain them.
- constitutional act of 1867 - law passed by british parliament to dominion of canada, scc became the final court of appeal on criminal matters in 1933, canada got control of all of its foreign affairs and didn’t have to follow british government
- constitutional act of 1982 (april) - the canadian charter of rights and freedoms was created
what is amending formula and what are the three steps?
amending formula - power to interpret the charters
1. Members of parliament must introduce a change to the charter in the house of commons and must get 50.1% approval (debate and vote)
2. two thirds (2/3) of provinces and territories must agree to hols a referendum on the proposal and need 8
3. referendum vote of citizens, need 66.7% to support the change
describe feudalism
a system of government based on the relationship between Lord and vassal
describe divine right
that monarchs and their successors derived their power to rule from God
what is the difference between law and justice?
law - is more physical, provides order in society, the rule of law is a supreme value, a way of resolving disputes, defends persons, property and rights
justice - more theoretical, provides fairness and equity, civil disobedience is valid if the laws are unjust and contrary to what is fair, judges can depart from the law, to do what is just and set a new precedent, to be just, laws must be consistent with moral law
what are the 3 types of law?
- constitutional law - the canadian charter of rights and freedoms, the constitution act of 1867 and 1982
- public/private law
- criminal law - theft, murder, treason, arson, kidnapping, fraud
- civil law - contract law, property law, family law, immigration law, corporate law, tort law (negligence, defamation), wills and estates, employment law, consumer law - administrative law - government agencies (over sight bodies), human rights tributes, landlord and tenant board
what law does theft, murder, treason, arson, kidnapping and fraud go under?
public/private law - criminal law
what law does contract law, property law, family law, immigration law, corporate law, tort law (negligence, defamation), wills and estates, employment law and consumer law go under?
public/private law - civil law
what is the difference between a libelist and slanderous statement?
libelist statement - written
slanderous - spoken
what is step 1 of billing a law?
New idea/concept for a new law is given - by members of parliament, cabinet ministers, prime minister or outside influences like lobby groups
what is step 2 of billing a law?
Draft of the bill - would have all the proposals, the name of the new law and any other provisions (specifics)
what is step 3 of billing a law?
First reading - member of parliament tells idea to house of commons (lays it out), providing details and information
what is step 4 of billing a law?
Second reading - debate the new law in the house of commons (can only be about the new law), standing committee hearing (all changes to law happen here), one from each party (minister of justice (liberal), the critic of justice(conservatives - ndp, bloc, green)
what is step 5 of billing a law?
Third reading - one more debate only on the topic, all present members of parliament must vote (attendance records - cannot miss voting), must stand and vote “yay” or “nay”, if “nay” the law fails, if “yay” they keep going
what is step 6 of billing a law?
Senate repeats the entire third readings
what is step 7 of billing a law?
Governor Genernal - have to give royal proclamation (statement) and royal assent (approval in signature)
on average, how long does billing a law take?
11 months
who enforces the criminal code of canada?
police
