Unit 1

Question 1

A, B and C then X

Answer 1

elements are joined by “and” (A, B, and C), it is called a “conjunctive” list

Question 2

A, B or C then X

Answer 2

elements are joined by “or” (A, B, or C), it is a “disjunctive” list

Question 3

If the elements are part conjunctive and part disjunctive

Answer 3

“hybrid” list

Question 4

The crime of murder, simply defined, is structured in the

Answer 4

conjunctive form. If an accused engages in behaviour (element A: the actus reus element) that causes the death of the victim (element B: the causation element), and if the accused means to cause the death (element C: the mens rea element), then the accused is guilty of murder and subject to punishment (X:the legal result).

Question 5

What distinguishes law from other kinds of rules?

Answer 5

Enforceability.
by way of state-sanctioned mechanisms or institutions such as the following: police forces, regulatory agencies (such as those that license certain activities), and court systems. The state does not enforce other kinds of rules—ethical or religious codes, abstract principles of justice—until they have been incorporated into or recognized as law.

Question 6

Define Morality

Answer 6

Morality standards of right and wrong, often associated with personal character
Morality can be viewed from two perspectives: descriptive or normative.

Question 7

Define ethics

Answer 7

Ethics standards of right and wrong often applied to specific groups—for example, professions

Question 8

What is the descriptive perspective of Morality?

Answer 8

Descriptive perspective, we are simply observing what a particular community believes to be right or wrong. We are offering no judgments or endorsements of these beliefs. We are describing things as they are.

Question 9

When we approach a moral system from a normative perspective…

Answer 9

We believe it to have an objective truth, or to set an ideal standard. We accept it and are invested in it. A moral code viewed in this light tells us how we should behave. Conduct that offends the code is considered immoral.

Question 10

What does the branches and sub-branches of ethics is metaethics what does is deal with?

Answer 10

Metaethics deals with basic questions such as how we determine what is good or bad and the nature of behavioural standards.

Question 11

What are deontological theories?

Answer 11

deontological theories that focus on the inherent rightness or wrongness of behaviour, without regard to the behaviour’s consequences or outcomes
This approach is non-consequentialist and rule-based; it holds that certain rights and responsibilities are fundamental and universal and that justice consists in upholding them. These standards are objectively good and true and require no analysis of social consequences or outcomes for their justification; they are an end in themselves.

Question 12

What are instrumentalist theories?

Answer 12

instrumentalist theories that focus on something—for example, justice or the law—as a means to an end
A desired social end might be, for example, a safer community or the reduction of poverty. A method of regulation would be a just one, according to this view, if it succeeded in making the community safer or in reducing poverty. This distinction— between deontological and instrumentalist conceptions of justice—offers us a general organizing principle, and a context in which to discuss three established and commonly cited models of justice: corrective justice, retributive justice, and distributive justice.

Question 13

What is corrective justice theory?

Answer 13

corrective justice theory of justice according to which (1)a person has a moral responsibility for harm caused to another, and (2) the latter’s loss must be rectified or corrected
most closely attached to the deontological approach—that is, taking justice as an end in itself
Central to the notion of corrective justice is the belief that a person has a moral responsibility for the harm he causes another, and that the loss must be rectified or corrected, usually in the form of compensation. (Corrective justice is also known as rectificatory justice .) Responsibility here is defined by the relationship between the causer and the injured, and there is no regard to consequences beyond the required rectification. The rectification (or correction) itself represents justice.
As the judge’s words suggest, corrective justice underlies private law disputes. But it also applies to criminal cases, where restitutionary orders —based on principles of corrective justice—are possible. For example, a person who physically or mentally injures a victim or damages his property in the course of committing a crime and is convicted of the crime may be ordered, at the time of sentencing, to compensate the victim directly for these losses.

Question 14

What is retributive justice theory?

Answer 14

retributive justice theory of justice based on lex talionis , or the law of retaliation
Retribution can be viewed either as an end in itself—that is, as a self-evidently appropriate response to morally wrong behaviour—or as the means to socially worthwhile objectives, such as public safety or appeasement. To the extent that one accepts both views, it is a hybrid theory, with both deontological and instrumentalist aspects.

Question 15

What is distributive justice theory?

Answer 15

distributive justice theory of justice concerned with appropriate distributions of entitlements, such as wealth and power, in a society

Question 16

What was John Rawls Theory of Justice?

Answer 16

expresses his general conception of justice as follows: All social values [or social primary goods]—liberty and opportunity, income and wealth, and the social bases of self-respect—are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage. 6
Injustice, then, according to Rawls, becomes “inequalities that are not for the benefit of all.”

Question 17

what are some examples of distributive justice?

Answer 17

automobile insurance and workers’ compensation programs. The debates concern whether and how to “distribute” the cost of injuries

Distributive justice is more concerned with public law matters than with private law.

Question 18

What was the most important common law court decisions ever handed down?

Answer 18

Lord Atkin formulated his “neighbour principle.”
This principle deals with every person’s obligation to take care when engaging in an activity—any activity—that might affect other people. In describing this principle, Atkin draws directly from the Biblical parable of the Good Samaritan:
Atkin’s decision and the principle it expresses continue to shape the law of torts in Canada today.

Question 19

When Canadian courts are asked to recognize new duties of care, they almost invariably refer to?

Answer 19

Lord Atkin’s “neighbour principle” as a starting point for their analysis.

Question 20

What is Jurisprudence

Answer 20

Jurisprudence also known as “ philosophy of law” or “science of law”; concerns theories that are used to describe, explain, or criticize the law
A common way of classifying theories of law is to divide them into two main categories: analytic and normative. Analytic theories are concerned with what the law is, while normative theories are concerned with what the law ought to be.
hybrid theories—such as feminist legal theory—and other theories, such as legal realism, that seem to challenge or subvert the distinction between analytic and normative.

Question 21

What is Analytic jurisprudence?

Answer 21

Analytic jurisprudence generally concerns critical, explanatory, and value-free assessments of the law. It may involve, for example, examining the internal logic of a system of rules. Sometimes the investigations are more empirical in nature—that is, concerned with experience or observation rather than with theory. The common thread between analytic theories of law is that they do not involve value judgments. They are concerned with what law is , not what it ought to be .

Question 22

What is Normative Jurisprudence?

Answer 22

Normative jurisprudence, on the other hand, generally concerns the rightness or wrongness of the law based on various conceptions of justice, fairness, and morality. It involves making value judgments; it is evaluative, not explanatory. Because there are no objective, universally accepted standards of right and wrong, normative legal analysis depends less on “logic” and empiricism than analytic jurisprudence does.

Question 23

What are the three well-established fields of jurisprudence?

Answer 23

natural law theory, legal positivism, and legal realism

Question 24

What is Natural Law Theory?

Answer 24

natural law theory that there is a source of law that is higher than man-made law, with which man-made law must try to comply
Aristotle, whom some consider the father of natural law theory, saw natural law as being based on virtue and the “golden mean” (that is, the idea that everything should be done in moderation). He developed these ideas in his Nicomachean Ethics , along with his theories of justice mentioned above. In the Middle Ages, the theologian Thomas Aquinas (1225 – 1274) reworked Aristotle’s ideas about natural law into a Christian context. Natural law was associated with God’s will or divine law, and this was identified, in turn, with reason. According to Aquinas, when we correctly use our abilities to reason, we are participating in or identifying with God’s reasoning.

Question 25

What is Legal positivism theory?

Answer 25

legal positivism theory that the only valid source of law is the principles, rules, and regulations expressly enacted by the institutions or persons within a society that are generally recognized as having the power to enact them
Natural law’s main opposition as a legal theory is legal positivism. On the scale of ought and is (that is, normative versus analytic jurisprudence), legal positivism tends more toward the analytic. It evaluates laws and legal systems without, for the most part, placing value judgments on them. As legal theories go, it is a relatively recent development.
Legal positivism’s first real proponent was John Austin (1790 – 1859), a p rofessor of jurisprudence at the University of London (now University College). He was a utilitarian, believing the goal of legislation to be “the greatest happiness of the greatest number.”

Question 26

The core positivist beliefs, according to Austin, are?

Answer 26

His greatest work is the Province of Jurisprudence Determined.
(1) all commands of the sovereign are valid and enforceable; (2) “commands” means positive law —that is, human-made rules; (3) the “sovereign” is the person or agency in a given society whom others obey; and (4) laws made in accordance with the society’s formalized and recognized process are valid, regardless of so-called natural law, morality, or any external standard.

Question 27

What is the positive law theory?

Answer 27

positive law human-made law, as opposed to a higher law (natural law) that transcends persons or institutions
Professors H.L.A. Hart (1907 – 1992) and Joseph Raz (1939 – ) have continued the positivist tradition. They have made the point that a person’s holding positivist beliefs does not prevent her either from having moral standards or from advocating for their legal recognition. However, law and morality are separate, and the validity of the former is not tied to the latter.
Anglo-Canadian legal tradition has a positivist basis.
In times of political stability, when governments follow commonly accepted standards and the existing order is acceptable to the majority of people in the society, legal positivism is effective as an underlying theory. It endorses the validity of what is. But during times of war or oppressive regimes, people begin to question the validity or fairness of existing laws and to measure them against external standards

Question 28

What is legal realism a theory?

Answer 28

Developed in the US and Scandinavian countries, that encourages a more thoroughly empirical study of the process by which laws are made and applied

Question 29

Oliver Wendell Holmes

Answer 29

Oliver Wendell Holmes (1841 – 1935), considered by some to be the father of legal realism in America, suggested that non-legal disciplines, such as history and economics, can help us understand judges’ decision-making.

Question 30

What is the legal theory of law and society?

Answer 30

Law and society legal study that looks at law from a broadly social, interdisciplinary perspective
One important issue debated in both is whether laws come about through consensus or through conflict within a society.

Question 31

What is sociology of law?

Answer 31

a kind of sociological study that looks at law from a broadly social, interdisciplinary perspective
One important issue debated in both is whether laws come about through consensus or through conflict within a society.

Question 32

What are Marxist theories of law legal theories?

Answer 32

Based on the writing of the communist philosopher Karl Marx, that are concerned with the distribution of wealth in a society; related to distributive justice theories

Question 33

What are feminist theories of law?

Answer 33

theories of law that generally concern the legal, social, and economic rights and opportunities of women
Feminist legal theories also examine such areas as how gender roles and women’s subordination are perpetuated and concealed by the law’s assumptions, language, and structure; how patriarchal interests are supported by the law; and what legal reforms are necessary to improve the position of women in society.

Question 34

What are critical legal studies theory?

Answer 34

critical legal studies theory of law largely concerned with exposing law as an instrument of the rich and powerful

Question 35

What is critical race theory?

Answer 35

theory of law that focuses on race-based inequities; an offshoot of critical legal studies

Question 36

What is the rule of law a key legal concept?

Answer 36

rule of law a key legal concept whose central tenets are that everyone is equal before the law and that power under the law should not be used arbitrarily
The term rule of law concerns fairness in the administration of the law. Its central tenets are that 1. everyone in a society, regardless of his or her social or political position, should be treated equally before the law; and 2. power under the law should not be used arbitrarily. The rule of law is one of the cornerstones of the Canadian legal system, and is expressly referred to in the Charter.

Question 37

What are Dicey’s three core rule-of-law principles?

Answer 37

1. The law must trump the influence of arbitrary power. It follows from this that no one can be punished except for breach of an established law as determined through an established process before the courts.
2. No one is above the law, whatever his place in society—or, to put it another way, the law applies equally to everyone. And, again, it is recognized judicial process that will make the rulings to ensure this occurs.
3. Personal rights and liberties must be protected by giving every person the ability to apply to the courts for a remedy should any of those rights and liberties be denied.

Question 38

What is Substantive law?

Answer 38

substantive law that deals with core rights and obligations

Question 39

What is procedural law?

Answer 39

law relating to the process by which core rights and obligations are determined and enforced

Question 40

What is domestic law?

Answer 40

law of a particular state or society

Question 41

What is public international law (or international law)?

Answer 41

law relating primarily to treaties and customs, and to inter-state relationships

Question 42

What are the three basic branches of government?

Answer 42

legislative, executive, and judicial.
In general, the legislative branch (such as the federal Parliament or provincial legislatures) makes laws; the executive branch (such as government departments or police forces) enforces laws; and the judicial branch (the courts) interprets laws.

Question 43

What does public law deal with?

Answer 43

In general, public law deals with the structure and operation of government. It regulates how the three branches at each level of government carry out their responsibilities. Public laws govern the relationship between an individual or private organization and the government, the relationship between one government and another (for example, between the government of Canada and the government of Ontario or of India), and the relationships between departments and agencies within a government. Criminal law, constitutional law, administrative law, and treaties made under international law are all considered part of public law.

Question 44

Private law is?

Answer 44

The body of laws that regulate how individuals or corporations are required to treat each other. Private law includes torts, contract law, property law, and family law.

Question 45

Laws may also be characterized as substantive or procedural, what is the difference?

Answer 45

Substantive law is concerned with the substance of a problem or the legal issue that the law is designed to solve or address.
Procedural law sets out procedures for implementing substantive law.
The substantive provisions of the Code make it an offence to take someone else’s property without the owner’s consent. Its procedural provisions specify how the police and courts will treat someone who is believed to have committed theft.

Question 46

Why is it important to know the difference between substantive law and procedural law?

Answer 46

is important because the characterization of a law as substantive or procedural affects whether it can apply to conduct that took place before the law was passed (that is, “retroactively”) and how far authorities can stray from following the strict letter of the law and still have their actions upheld by the court. Generally, officials have more flexibility and leeway in applying procedural laws than in applying substantive laws. Also, procedural laws may apply retroactively, but substantive laws may not.

Question 47

What is the most important purpose of learning administrative law?

Answer 47

For the purposes of learning administrative law, what is most important to understand is that the principles of administrative law, especially the duty to act fairly, apply to government decisions regardless of whether making those decisions has been assigned to an official within a government department, to an official of an arm’s-length agency, or to a tribunal.