Unit 1 Flashcards
In this unit, you will be introduced to civil law in Canada through four modules covering foundational concepts, contracts, intentional torts, and negligence. During Unit 1, you will be placed in small teams for your case brief team assignment that will be due in Unit 2. You will need to complete the Unit 1 Quiz before the end of the unit.
A, B and C then X
elements are joined by “and” (A, B, and C), it is called a “conjunctive” list
A, B or C then X
elements are joined by “or” (A, B, or C), it is a “disjunctive” list
If the elements are part conjunctive and part disjunctive
“hybrid” list
The crime of murder, simply defined, is structured in the
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).
What distinguishes law from other kinds of rules?
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.
Define Morality
Morality standards of right and wrong, often associated with personal character
Morality can be viewed from two perspectives: descriptive or normative.
Define ethics
Ethics standards of right and wrong often applied to specific groups—for example, professions
What is the descriptive perspective of Morality?
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.
When we approach a moral system from a normative perspective…
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.
What does the branches and sub-branches of ethics is metaethics what does is deal with?
Metaethics deals with basic questions such as how we determine what is good or bad and the nature of behavioural standards.
What are deontological theories?
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.
What are instrumentalist theories?
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.
What is corrective justice theory?
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.
What is retributive justice theory?
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.
What is distributive justice theory?
distributive justice theory of justice concerned with appropriate distributions of entitlements, such as wealth and power, in a society
What was John Rawls Theory of Justice?
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.”
what are some examples of distributive justice?
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.
What was the most important common law court decisions ever handed down?
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.
When Canadian courts are asked to recognize new duties of care, they almost invariably refer to?
Lord Atkin’s “neighbour principle” as a starting point for their analysis.
What is Jurisprudence
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.
What is Analytic jurisprudence?
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 .
What is Normative Jurisprudence?
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.
What are the three well-established fields of jurisprudence?
natural law theory, legal positivism, and legal realism
What is Natural Law Theory?
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.
