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law and society midterm > Topic 1 > Flashcards

Topic 1 Flashcards

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1
Q

Natural Law DEF

A

the idea that the law is a guideline to a virtuous like in which people, and helps society define and distinguish between right and wrong.

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2
Q

Natural law POINTS

A
  1. building block for ideas such as natural rights, justice and equality.
  2. Natural rights- this ability to reason out what is good, is important in natural rights because of the belief that everyone has the ablitity to do this, therefore people should have the right to make their own decisions.
  3. God’s will is natural law, it is what is good. established the legitimacy of the monarchy who people believed were appointed by God.
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3
Q

Legal Positivism DEF

A

The law depends on the facts of it’s making, not it’s merit. (the law is the law it doesn’t matter whether it is right or wrong)

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4
Q

legal positivism POINTS

A
  1. you are not born with rights but are given them
  2. the law is the command of the sovereign.
  3. this idea was very important to empower the monarch, people believed their rights where give to them by their leaders.
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5
Q

Liberalism DEF

A

Centered on individualism in which the person is born free and has the right to make their own decisions about matters concerning and there is little/limited interference of the state on these decisions. Gov’t is limited to the consent of the people and main job is to protect the people’s rights.

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6
Q

Liberalism POINTS

A
  1. It is the product of the enlightenment period in which people start focusing on the individual
  2. understanding the concept of liberalism is key to understanding the legal practices and laws that formed; the charter- protecting the rights of the individual, allowing individuals to make decisions.
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7
Q

French Revolution DEF

A

the French take down the monarchy

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8
Q

French Revolution POINTS

A
  1. Start of “our world” end of the new world
  2. explosion of liberal ideology
  3. the split between liberal and conservative views are created because some people are for the revolution and others against.
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9
Q

Rights

A
  1. two views on rights: born with rights or given rights
  2. this is where the divide comes in between liberals and conservatives.
  3. natural rights and legal positivism
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10
Q

Equality

A
  1. this was brought on with the idea of natural law, because everyone is born with the same rights, one cannot be superior to the other.
  2. Equality and the way to achieve it how liberal governments choose to get involved by giving healthcare and leveling the playing field so that equality can be achieved.
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11
Q

Paris Coutume DEF

A

the law of paris and the surrounding regions

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12
Q

Paris Coutume POINTS

A
  1. New France following French civil and criminal law
  2. French law was deeply influenced by catholic faith
  3. Understanding the French law and the way Christian morality influences this we understand the brutality of the French justice system of that time.
  4. Christian morality- people are bad and we must give them punishments to keep them on the right track.
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13
Q

Amende Honorable DEF

A

Bear witness to the crimes against the King, God, and justice.

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14
Q

Amende Honorable POINTS

A
  1. the catholic/religious influence on the criminal justice system.
  2. Ask pardon from the King; you understand the King’s law of the time to keep the peace, and by committing a crime you are disturbing the peace that the King is responsible for. They band around the sovereign to give them order in such difficult times as of famine, disease and etc
  3. not only a physical offence but it affected the spiritual as well.
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15
Q

Royal Proclamation Issue 1763 DEF

A
  1. instituted English criminal and civil law under a English governor. 2. reserves aboriginal lands to be surrendered exclusively to the crown.
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16
Q

Royal Proclamation Issue 1763 POINTS

A
  1. is the result of the English defeating the French in the seven years war and taking over New France.
  2. it is important to understand the change from the French system to the English common law. Which is still in use today
  3. it the beginning of the attempt of assimilation of the French culture.
  4. changing the colony to make it more comfortable to the new English arrivals
17
Q

Quebec Act 1774 DEF

A
  1. English compromise with the French, a law protecting French culture and language, expansion of territory. Allowing Catholics to hold office, religious freedom.
18
Q

Quebec Act 1774 POINTS

A
  1. There were already French people living there and these new laws and contradictory systems made them angry
  2. The English did not want a revolt because of they were already dealing with one in America.
  3. Quebec Act 1774 was connected to the French revolution
  4. This explains why today Quebec uses the French civil law, but the English criminal law and practice law is ultimately different in Quebec vs. the rest of Canada
19
Q

English Common Law DEF

A

the unchanging criminal and civil law of the people.

20
Q

English Common Law POINTS

A
  1. Common law is born with the travelling courts and judges who are there to represent the Kings.
  2. Beginning of case law and precedent
  3. the common law becomes more complex so there is a need for lawyers to interpret the law
  4. It explains why there is no written law only common law
21
Q

Magna Carta DEF

A
  1. restricted the rule of the kings making the bound to the law. From rule of kings to rule of law.
22
Q

Magna Carta POINTS

A
  1. Kings are bound by the law now, and must consult their the council before decisions are made.
  2. The start of decline of the power of the monarch to the ceremonious figure it is today
  3. the rise of the power of parliament
  4. other effects- gave things a standard value, important in the rise of capitalism.
23
Q

English Civil War

A

Parliament resists the rule of King Charles the first and executes him

24
Q

English Civil War, Bill of Rights, Glorious Revolution

A
  1. English civil war leads to the Bill of Rights which was an update on magna carta restricting the monarch even further
  2. Bill of rights, Monarch could not change law at will and parliament was no longer bound to the monarchy
  3. This leads to the glorious revolution and the overthrow of King James the second
  4. Establishment of William and Mary of Orange- to remove the meddling of the catholic church and for the monarchy to abide by the parliament, parliament supremacy.
  5. judges switch their allegiance from the monarch to the parliament
25
Q

The constitution act DEF

A

The constitution was created as the new law of Canada.

26
Q

The constitution act POINTS

A
  1. created the parliament and structure of national gov’t
  2. Created provinces and separate legislative systems (federal gov’t)
  3. Established the relationship between the federal and provincial gov’t,
  4. divided powers between the provincial and the federal
  5. protection for minority languages (French)
27
Q

Judicial Review

A

judges had the role of interpreting and nullifying the laws that contradicted with the constitution

28
Q

Judicial Review POINTS

A
  1. judges policed governments from overstepping their bounds.
  2. this judicial review helps understand the role of the courts before 1982 which was to react to legislation.
  3. it also helps understand this important shift in legal understanding in 1982 when the judges no longer just react to legislation but now play a part in making these laws.
29
Q

Canadian Bill of Rights DEF

A

a protection of rights and equality

30
Q

Canadian Bill of Rights, Charter POINTS

A
  1. it promised to protect the rights and freedoms but was not effective. It just said we will continue doing what we have always been doing.
  2. it is important to understand the Bill because understanding it’s short comings makes the clear the purpose and reasons for the Charter of Rights and freedoms that came after.
  3. Charter unlike the Bill was entrenched in the Constitution and therefore had more power.
  4. protected individual rights, section 1 and section 7.
  5. Understanding the power of the charter is important to understand cases such as the morgantelor case and others in which people fight for their charter rights.
31
Q

The Oakes Test DEF

A

A way to test if someone’s charter rights had been justifiably overrided.

32
Q

The Oakes Test POINTS

A
  1. It helps clear up this idea of reasonable limits. Makes it not as subjective because their are concrete steps with which they can be determined.
  2. Helps but to ease some of the concerns people had about the Charter, giving too much power to judges, reasonable limits seems quite subjective and left up to the judge’s discretion but the Oake’s tests gives more guidelines that must be followed.
33
Q

Declaratory Theory DEF

A

judges make decisions on cases based on previous cases, precedent

34
Q

Declaratory Theory POINTS

A
  1. Declaratory theory is important to understand how the common law works.
  2. there is no formal written common law
  3. It has been created through judges making decisions.
  4. Role of judges not to make the law but simply to state what it is.
  5. helps understand the 1960 (England) 70s (Canada) shift in legal understand when judges decide not to look back but to start looking forward in cases and not to be bound by the previous decisions made by other judges. Because judges start making the common law

law and society midterm (2 decks)

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